MacColl v. Mo. State Highway Patrol

• Decision Date: 04 April 2023
• Docket Number: SC99656
• Parties: LIANA MACCOLL (FORMERLY KNOWN AS LIANA M. BRADFORD), Appellant, v. MISSOURI STATE HIGHWAY PATROL AND BOONE COUNTY, MISSOURI, SHERIFF, Respondent.
• Court: Missouri Supreme Court

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LIANA MACCOLL (FORMERLY KNOWN AS LIANA M. BRADFORD), Appellant, v. MISSOURI STATE HIGHWAY PATROL AND BOONE COUNTY, MISSOURI, SHERIFF, Respondent.

No. SC99656

Supreme Court of Missouri, En Banc

April 4, 2023

Modified on the Court's own motion May 23, 2023

APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY The Honorable Jeff Harris, Judge

GEORGE W. DRAPER III, JUDGE

Liana M. MacColl (hereinafter, "MacColl") appeals from the circuit court's entry of summary judgment in favor of the Missouri State Highway Patrol and the Boone County sheriff (collectively, "Respondents") finding she was required to register as a sex offender under the Missouri Sex Offender Registration Act, section 589.400, et seq. (hereinafter, "MO-SORA").^[1] MacColl contends she never was required to register under state or federal law and, accordingly, she should be removed from Missouri's sex offender registry and issued a declaration she is not required to register going forward.

This Court holds a genuine issue of material fact exists regarding whether the sex offender treatment programs MacColl completed during her probationary period qualified as a program certified by a jurisdiction or the attorney general to entitle her to a reduction in her registration period, which would resolve whether MacColl ever was required to register under state or federal law. The circuit court's judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Factual and Procedural Background

On August 21, 1995, MacColl pleaded guilty to one count of sexual misconduct, a class A misdemeanor, in violation of section 566.090, RSMo 1994. The information charged MacColl with having "deviate sexual intercourse with an unnamed juvenile female, to whom [MacColl] was not married and who was then under the age of seventeen years." The circuit court sentenced MacColl to one year in jail, suspended the execution of her sentence, and placed her on two years' supervised probation. MacColl was required to complete a sexual offender treatment program as a condition of her probation. MacColl attended and completed a sexual offender group therapy program and obtained counseling as directed. The circuit court discharged MacColl from probation on August 21, 1997.

In August 2000, Boone County sheriff's office personnel advised MacColl to register as a sexual offender under MO-SORA due to changes in the law. On August 24, 2000 MacColl registered as a sex offender and has maintained her registration ever since that date.

In October 2020, MacColl filed a declaratory judgment action against Respondents seeking a declaration she was a tier I offender under MO-SORA, a declaration she does not have a prior or current independent obligation to register under the Sex Offender Registration and Notification Act, 34 U.S.C §§ 20901, et seq. (hereinafter "SORNA"), and removal from Missouri's sex offender registry. Respondents maintained MacColl was required to register at the time federal registration requirements were applied in Missouri and she was required to register for her lifetime. The parties filed competing motions for summary judgment.

The circuit court sustained Respondents' motion and overruled MacColl's motion. The circuit court found MacColl was required to register at the time of her 1995 guilty plea because the offense to which she pleaded guilty was a sex offense against a minor as defined by the federal Jacob Wetterling Crimes Against Children &Sexually Violent Offender Registration Program (hereinafter, "Jacob Wetterling Act"). The circuit court further found MacColl was required to register under MO-SORA beginning in August 2000 because she was someone who has been or is required to register under federal law. The circuit court explained MacColl's obligation to register continued after SORNA was enacted in 2006 until her fifteen-year obligation expired in 2010.^[2] The circuit court found MacColl did not request a reduction of the fifteen-year registration period previously and was not entitled to request the reduction be applied retroactively. The circuit court concluded that, because section 589.400.1(7) required registration for any offender who has been or is required to register under federal law, MacColl could not be removed from the registry or relieved of her obligation to register going forward.

MacColl appeals.^[3]

Standard of Review

This Court reiterated the standard of review for summary judgment in Green v. Fotoohighiam, 606 S.W.3d 113 (Mo. banc 2020):

The trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law; therefore, this Court need not defer to the trial court's determination and reviews the grant of summary judgment de novo. In reviewing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. The facts contained in affidavits or otherwise in support of a party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion. Only genuine disputes as to material facts preclude summary judgment. A material fact in the context of summary judgment is one from which the right to judgment flows.

. . .

The record below is reviewed in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record. However, facts contained in affidavits or otherwise in support of the party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion.

Id. at 115-16 (quoting Goerlitz v. City of Maryville, 333 S.W.3d 450, 452-53 (Mo. banc 2011) (internal quotation marks and citations omitted)).

MO-SORA and SORNA Registration Requirements

It is instructive to discuss the history and interplay between federal and state sex offender registration requirements before addressing MacColl's points of error. In 1994 Congress enacted the Jacob Wetterling Act, codified as amended at 42 U.S.C. § 16901 et seq. (2006), directing states to establish and maintain sex offender registration programs to receive federal funding. To that end, Missouri established MO-SORA, which became effective January 1, 1995. See section 566.600, et seq., RSMo 1994. In 1995, MO-SORA did not require registration for offenses committed pursuant to section 566.090 or for any misdemeanor sex offense. In 1997, MO-SORA was transferred to section 589.400 et seq.

In August 2000, MO-SORA was amended "to require registration for misdemeanor offenses under chapter 566." Doe v. Keathley, 290 S.W.3d 719, 720 (Mo. banc 2009); see also section 589.400.1, RSMo Supp. 2001. Offenders who pleaded or were found guilty prior to MO-SORA's effective date of January 1, 1995, were not subject to this registration requirement, however, because it imposed an unconstitutionally retrospective obligation. Doe v. Phillips, 194 S.W.3d 833, 852 (Mo. banc 2006). Offenders who pleaded or were found guilty after January 1, 1995, were "fully subject to [MO-SORA's] relevant requirements." Id. at 838. These amendments stated sections 589.400 to 589.424 applied to "[a]ny person who ... has been or is required to register under federal ... law." Section 589.400.1(5), RSMo 2000.^[4]These amendments mandated that "[t]he registration requirements of sections 589.400 through 589.425 are lifetime registration requirements ...." Section 589.400.3, RSMo 2000.

In July 2006, SORNA replaced the Jacob Wetterling Act and later was reclassified as 34 U.S.C § 20901 et seq.^[5] SORNA defines a "sex offender" as "an individual who was convicted of a sex offense." 34 U.S.C. § 20911(1). A "sex offense" includes "a criminal offense that has an element involving a sexual act or sexual contact with another" and "a criminal offense that is a specified offense against a minor." Id. § 20911(5)(A)(i)-(ii). A "specified offense against a minor" includes "[c]riminal sexual conduct involving a minor" and "[a]ny contact that by its nature is a sex offense against a minor." Id. § 20911(7)(H)-(I). A "minor" is defined as "an individual who has not attained the age of 18 years." Id. § 20911(14).

SORNA places sex offenders into three tiers based upon the severity of their offenses. Id. § 20911(2)-(4). Tier I sex offenders must register for fifteen years. Id. § 20915(a)(1). Tier II sex offenders must register for twenty-five years. Id. § 20915(a)(2). Tier III offenders must register for their lifetime. Id. § 20915(a)(3).

Tier I offenders may have their full registration period reduced if they maintain a clean record by:

(A) not being convicted of any offense for which imprisonment for more than 1 year may be imposed; (B) not being convicted of any sex offense; (C) successfully completing any periods of supervised release, probation, and parole; and (D) successfully completing of [sic] an appropriate sex offender treatment program certified by a jurisdiction or by the Attorney General.

Id. § 20915(b)(1)(A)-(D). "[T]he period during which the clean record shall be maintained is 10 years" for tier I offenders, id. § 20915(b)(2)(A), which would entitle those offenders to a five-year registration reduction. Id. § 20915(b)(3)(A). Although the precise date of when SORNA took effect is uncertain, Missouri courts have recognized SORNA did not apply to offenders who have pleaded guilty before its enactment likely until August 2008. See Horton v State, 462 S.W.3d 770, 773 (Mo. App. S.D. 2015) ("SORNA has applied...