Kammerer v. State

Decision Date17 April 2014
Docket NumberNo. S–13–0070.,S–13–0070.
PartiesRonald S. KAMMERER, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

OPINION TEXT STARTS HERE

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General. Argument by Mr. Delicath.

Before KITE, C.J., and HILL, VOIGT *, BURKE, and DAVIS, JJ.

BURKE, Justice.

[¶ 1] Appellant, Ronald S. Kammerer, Jr., challenges his conviction for failure to register as a sex offender, in violation of Wyo. Stat. Ann. § 7–19–302(j) and Wyo. Stat. Ann. § 7–19–307(a)(d). He contends that Wyoming's Sex Offender Registration Act (Wyo. Stat. Ann. §§ 7–19–301 through 7–19–307) (“WSORA” or the Act) violates the prohibitions against ex post facto laws contained in the United States and Wyoming Constitutions. We affirm.

ISSUES

[¶ 2] Appellant presents the following issues:

1. Does Wyoming's Sex Offender Registration Act violate the United States Constitution, Art. 1, § 10, prohibition against enacting ex post facto laws?

2. Does Wyoming's Sex Offender Registration Act violate the Wyoming Constitution's prohibition of ex post facto laws?

The State presents an additional issue:

1. Did the district court commit plain error by not finding that the Wyoming Constitution provides greater protection than its federal analog and that the Wyoming Sex Offender Registration Act violates that greater protection?

FACTS

[¶ 3] In 1993, Appellant pled guilty to a second degree sexual assault crime in New Jersey. He subsequently moved to Gillette, Wyoming. Appellant's New Jersey conviction required him to register as a sex offender in Wyoming under Wyo. Stat. Ann. § 7–19–302(j) (LexisNexis 2011).1 In early 2012, the State charged Appellant with one count of failure to register, in violation of Wyo. Stat. Ann. § 7–19–302(j) and Wyo. Stat. Ann. § 7–19–307(a)(d). Before trial, Appellant filed a Motion to Dismiss as Ex Post Facto Law, claiming that the Wyoming Sex Offender Registration Act is unconstitutional. The district court denied Appellant's motion.

[¶ 4] The case proceeded to trial, and Appellant was convicted of failing to register. The jury also found that Appellant was subject to an enhanced penalty because he had previously been convicted of the crime of failing to register as a sex offender. The district court sentenced Appellant to a term of four to seven years imprisonment. This timely appeal followed.

STANDARD OF REVIEW

[¶ 5] Appellant presents a constitutional challenge to Wyoming's Sex Offender Registration Act. The question of whether a statute is constitutional is a question of law over which this Court exercises de novo review. Smith v. State, 2009 WY 2, ¶ 52, 199 P.3d 1052, 1067–68 (Wyo.2009). We presume statutes to be constitutional and resolve any doubt in favor of constitutionality. Id., ¶ 52, 199 P.3d at 1068.

DISCUSSION

[¶ 6] In 1994, Wyoming joined the majority of other states in enacting legislation relating to sex offender registration. Snyder v. State, 912 P.2d 1127, 1129 (Wyo.1996). By 1996, every State, the District of Columbia, and the Federal Government had enacted laws requiring sex offender registration. Smith v. Doe, 538 U.S. 84, 90, 123 S.Ct. 1140, 1145, 155 L.Ed.2d 164 (2003).

[¶ 7] Under Wyoming's Act, offenders convicted of certain sex offenses must register with the county sheriff in their county of residence. Wyo. Stat. Ann. § 7–19–302(a). The basic provisions of the Act require the registrant to provide identifying information, including the registrant's name, aliases, address, date and place of birth, social security number, place and address of employment, a DNA sample, and any internet identifiers. Id. The registrant must also provide the date and place of his conviction, the crime for which he was convicted, the age of each victim, the name and address of educational institutions at which the registrant is employed or attending school, the license plate number and description of his vehicle, and any phone number at which the registrant may be reached. Id. Additionally, the registrant must be photographed and fingerprinted. Id. If the registrant intends to travel outside the United States, he must inform the county sheriff of his plans at least twenty-one days prior to travel. Wyo. Stat. Ann. § 7–19–302(q). The duty to register continues for the duration of the registrant's life, but this duty may terminate in certain cases upon the registrant's petition to be relieved from the duty to register. Wyo. Stat. Ann. § 7–19–304(a).

[¶ 8] The Act also establishes a central registry of offenders and makes certain identifying information and information relating to the registrant's offense available to the public. Wyo. Stat. Ann. § 7–19–303(a), (c)(iii). The Act requires this information to be made available through the internet, and also requires the dissemination of notice of a registrant's status as a sex offender to residential neighbors living within 750 feet of the registrant. Wyo. Stat. Ann. § 7–19–303(c)(ii), (iii). A sex offender who fails to comply with the Act is subject to criminal prosecution. Wyo. Stat. Ann. § 7–19–307.

[¶ 9] In his first issue, Appellant contends that Wyoming's Sex Offender Registration Act violates the ex post facto clause of the United States Constitution because it retroactively inflicts greater punishment for his crime. The passage of ex post facto laws is prohibited by Article 1, § 10 of the United States Constitution and Article 1, § 35 of the Wyoming Constitution.2 [A]ny statute ... which makes more burdensome the punishment for a crime, after its commission, ... is prohibited as ex post facto. Smith v. State, ¶ 55, 199 P.3d at 1068 (quoting Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)). We have stated that the constitutional prohibition against ex post facto laws applies only to statutes that impose penalties. Snyder, 912 P.2d at 1130.

In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purposes of punishment—that is, to reprimand the wrongdoer, to deter others, etc., it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose. The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature.

Id. (quoting Trop v. Dulles, 356 U.S. 86, 96, 78 S.Ct. 590, 595–96, 2 L.Ed.2d 630 (1958)).

[¶ 10] This is not the first time that a constitutional challenge to Wyoming's Sex Offender Registration Act has been before this Court. In Snyder, the appellant claimed the Act was an unconstitutional ex post facto law because it retroactively inflicted punishment after his crime was committed. Specifically, the appellant claimed that the Act was punitive because (1) it submitted the registrant to police surveillance and lineup appearances if a similar crime was committed, (2) the fact of registration itself was admissible under the Wyoming Rules of Evidence, and (3) failure to register was punishable by imprisonment. Snyder, 912 P.2d at 1130. We began our analysis by noting that

The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation.

Id. at 1131 (quoting De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1155, 4 L.Ed.2d 1109 (1960)). In our discussion, we noted that the Act is unaccompanied by a description of its purpose and legislative history does not exist which would assist in discerning whether the legislative intent was regulatory or punitive.” Nonetheless, we concluded that “The plain reading of the statutory scheme ... indicates that the legislature intended to facilitate law enforcement and protection of children. There was no intent to inflict greater punishment.” Snyder, 912 P.2d at 1131. Accordingly, we held that the Act “does not inflict greater punishment and does not violate the ex post facto clause.” Id.

[¶ 11] Since its initial passage in 1994, Wyoming's Sex Offender Registration Act has been amended on numerous occasions. Appellant claims that the revisions to WSORA are punitive because they require “the use of ‘active’ as well as passive community notification,” and because the Act “requires frequent in-person registration, and imposes elevated movement and residency restrictions.” Appellant acknowledges that, in Snyder, we found that amendments to WSORA imposing stricter registration requirements did not violate the ex post facto clause of the United States Constitution. He contends, however, that the recent amendments “tip the scale and make the current version of WSORA more punitive.”

[¶ 12] Subsequent to our decision in Snyder, the United States Supreme Court, in Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 1146, 155 L.Ed.2d 164 (2003), considered whether Alaska's sex offender registration and notification statutes constituted retroactive punishment forbidden by the ex post facto clause. The statutory scheme at issue in Smith v. Doe contained elements similar to those found in the current version of Wyoming's Act. The Alaska law required, among other things, that sex offenders be photographed and...

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