Powell v. Keel

• Decision Date: 09 June 2021
• Docket Number: Appellate Case No. 2019-001063,Opinion No. 28033
• Citation: 860 S.E.2d 344,433 S.C. 457
• Court: South Carolina Supreme Court
• Parties: Dennis J. POWELL, Jr., Respondent, v. Mark KEEL, Chief, State Law Enforcement Division, and The State of South Carolina, Appellants.

433 S.C. 457

860 S.E.2d 344

Dennis J. POWELL, Jr., Respondent,

v.Mark KEEL, Chief, State Law Enforcement Division, and The State of South Carolina, Appellants.

Appellate Case No. 2019-001063

Opinion No. 28033

Supreme Court of South Carolina.

Heard November 19, 2020

Filed June 9, 2021

Rehearing Denied August 4, 2021

Adam L. Whitsett and Paul Thomas Ahearn, III, both of the South Carolina Law Enforcement Division; and Attorney General Alan McCrory Wilson and Assistant Attorney General Harley Littleton Kirkland, all of Columbia, for Appellants.

Jonathan Edward Ozmint, of The Ozmint Firm, LLC, of Columbia, and Elise Freeman Crosby, of Crosby Law Firm, LLC, of Georgetown, for Respondent.

Blake Terence Williams, Amber Modestine Steele Hendrick, and Daniel J. Westbrook, all of Nelson Mullins Riley & Scarborough, LLP, of Columbia, for Amicus Curiae South Carolina Office of Appellate Defense.

CHIEF JUSTICE BEATTY :

This appeal arises from the circuit court's grant of summary judgment in favor of Dennis Powell, Jr. ("Respondent") on his claims challenging the internet publication and lifetime duration of his mandated registration as a sex offender under the South Carolina Sex Offender Registry Act ("SORA"), S.C. Code Ann. §§ 23-3-400 to -555 (2007 & Supp. 2020). The circuit court held SORA's lifetime registration requirement is punitive under the Eighth Amendment and violates Respondent's rights to due process and equal protection. The court also determined SORA does not permit publication of the State's sex offender registry on the internet. Mark Keel, Chief of the State Law Enforcement Division ("SLED"), and the State of South Carolina (collectively, "Appellants") appeal the circuit court's decision. We hold SORA's lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of re-offending. We further hold subsection 23-3-490(E) permits dissemination of the State's sex offender registry information on the internet. Accordingly, we affirm as modified in part and reverse in part.

I. FACTS

On February 23, 2008, Respondent was arrested for criminal solicitation of a minor under section 16-15-342 of the South Carolina Code (2015) for engaging in anonymous internet chatroom conversations, which were graphically sexual in nature, with an undercover police officer posing as a twelve-year-old girl as part of an internet sting operation. In their final conversation, Respondent and the "teenage girl" arranged to meet at a skating rink in Lexington. Thereafter, he drove by the meeting place, was pulled over by law enforcement at a traffic stop, and was subsequently arrested.

On December 1, 2008, Respondent was indicted for having "knowingly through the Internet contact[ed] and communicate[d] with a person ... whom he reasonably believed to be [a] twelve year-old girl, for the purpose of or with the intent of persuading, inducing, enticing, or coercing the person to engage or participate in a sexual activity." On April 2, 2009, he pleaded guilty to the indictment and was thereafter sentenced to two years' imprisonment suspended to one year of probation. At sentencing, the court notified Respondent that he would be required to register as a sex offender under SORA, which mandates lifetime registration for sex offenses, including criminal solicitation of a minor. See S.C. Code Ann. §§ 23-3-430(A), (C)(21), -460(A) (2007 & Supp. 2020). Respondent did not file an appeal from his conviction or an application for post-conviction relief.

Respondent has registered as a sex offender since his sentencing in 2010 and has not been arrested for any offense since that time. In 2011, Respondent successfully completed his probationary sentence as well as outpatient psychiatric treatment consisting of sixty hours of sex offender group therapy. Respondent was assessed by Dr. William Burke, a licensed professional counselor, and Dr. Thomas Martin, a licensed psychologist, both of whom determined he has a low risk of recidivism.

On November 21, 2016, Respondent filed a petition in the circuit court for a declaratory judgment, claiming SORA does not permit publication of the State's sex offender registry on the internet, and the lifetime duration of his sex offender registration constitutes excessive punishment in violation of the Eighth Amendment of the United States Constitution and article I, section 15 of the South Carolina Constitution, deprives him of due process and equal protection, and warrants equitable relief in the form of his removal from the registry. After cross-motions for summary judgment by the parties, the circuit court held a hearing and granted Respondent's motion on all claims. Appellants filed a motion to alter or amend the judgment, which the circuit court considered under Rule 59(e), SCRCP, and denied. Thereafter, Appellants appealed to the court of appeals, which transferred the case to this Court pursuant to Rules 204(a) and 203(d)(1)(A)(ii), SCACR.

II. STANDARD OF REVIEW

"This Court has a limited scope of review in cases involving a constitutional challenge to a statute because all statutes are presumed constitutional and, if possible, will be construed to render them valid." Curtis v. State , 345 S.C. 557, 569, 549 S.E.2d 591, 597 (2001). "A legislative act will not be declared unconstitutional unless its repugnance to the constitution is clear and beyond a reasonable doubt." Joytime Distribs. & Amusement Co. v. State , 338 S.C. 634, 640, 528 S.E.2d 647, 650 (1999). The party challenging the validity of a statute bears the burden of proving it is unconstitutional. See Knotts v. S.C. Dep't of Nat. Res. , 348 S.C. 1, 6, 558 S.E.2d 511, 513 (2002) (noting the appellant bore the burden of proving the statute unconstitutional).

"Determining the proper interpretation of a statute is a question of law, which this Court reviews de novo." Ferguson Fire & Fabrication, Inc. v. Preferred Fire Prot., L.L.C. , 409 S.C. 331, 339, 762 S.E.2d 561, 565 (2014). Thus, we may interpret statutes "without any deference to the court below." Brock v. Town of Mt. Pleasant , 415 S.C. 625, 628, 785 S.E.2d 198, 200 (2016) (quoting CFRE, LLC v. Greenville Cty. Assessor , 395 S.C. 67, 74, 716 S.E.2d 877, 881 (2011) ).

III. DISCUSSION

In 1994, the South Carolina General Assembly enacted our State's sex offender registry law, SORA, S.C. Code Ann. §§ 23-3-400 to -555 (2007 & Supp. 2020). Such laws are commonly referred to as "Megan's Laws," named after seven-year-old Megan Kanka from New Jersey, who was sexually assaulted and murdered in 1994 by a neighbor who had prior convictions for sex crimes against children. See Smith v. Doe , 538 U.S. 84, 89, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (discussing the origins of "Megan's Law" and characterizing Alaska's sex offender registration act as "Megan's Law"); see also Wayne A. Logan, Database Infamia: Exit from the Sex Offender Registries , 2015 Wis. L. Rev. 219, 220 (2015) (noting sex offender registration laws are colloquially known as "Megan's Laws"). The widely publicized crime prompted state legislatures across the country to pass laws mandating registration of sex offenders. See Hendrix v. Taylor , 353 S.C. 542, 547, 579 S.E.2d 320, 322 (2003) (observing the movement to enact sex offender statutes arose following Megan's murder); see also People v. Ross , 169 Misc.2d 308, 646 N.Y.S.2d 249, 250 (Sup. Ct. 1996) (noting "[e]very state requires sex offenders to register").

In South Carolina, SORA requires any person, regardless of age, who has been convicted of an enumerated crime, including criminal solicitation of a minor, to register as a sex offender. S.C. Code Ann. § 23-3-430(A), (C)(21) (2007 & Supp. 2020). The Act also provides judges with discretion to order, as a condition of sentencing, a person convicted of an offense not listed in the statute to be included in the sex offender registry if good cause is shown by the solicitor. Id. § 23-3-430(D). Moreover, subsection 23-3-460(A) generally mandates that a person required to register as a sex offender must do so biannually for life. Id. § 23-3-460(A). Registrants are required to register in person at the sheriff's department and must provide information as prescribed by SLED. Id. §§ 23-3-450, -460(A). Any person who fails to register or provide required notifications may be subject to criminal prosecution. Id. § 23-3-470.

Notably, SORA does not provide any judicial review for registrants to demonstrate their individual risk of recidivism and seek removal from the registry. Instead, a person may only be removed from the registry under the following circumstances: "the person's adjudication, conviction, guilty plea, or plea of nolo contendere for an offense listed in subsection (C) was reversed, overturned, or vacated on appeal and a final judgment has been rendered"; the person receives a pardon for the offense requiring registration and it is "based on a finding of not guilty"; or the person is granted a petition for a writ of habeas corpus or a motion for a new trial, a new trial is ordered, and the person is acquitted. Id. § 23-3-430(E) – (G). The complete absence of judicial review under South Carolina's legislative scheme is the most stringent in the country. See Logan, supra , at 225 (noting "South Carolina takes the most extreme position" with respect to the possibility of removal from its sex offender registry); Restoration of Rights Project, 50-State Comparison: Relief from Sex Offender Registration Obligations , Collateral Consequences Resource Center (updated Nov. 2019), https://ccresourcecenter.org/state-restoration-profiles/50-state-comparison-relief-from-sex-offender-registration-obligations/ (compiling relief from registration provisions in every state); see also Doe v. Dep't of Pub. Safety , 444 P.3d 116, 135–36 (Alaska 2019) (noting "[a] majority of states now provide for individualized risk assessment hearings under which registrants ... can be relieved of registration obligations").

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