State v. Burr

• Citation: 598 N.W.2d 147,1999 ND 143
• Decision Date: 29 July 1999
• Docket Number: No. 980272,980272
• Parties: STATE of North Dakota, Plaintiff and Appellee v. James A. BURR, Defendant and Appellant
• Court: United States State Supreme Court of North Dakota

Page 147

598 N.W.2d 147

1999 ND 143

STATE of North Dakota, Plaintiff and Appellee v. James A. BURR, Defendant and Appellant

No. 980272.

Supreme Court of North Dakota.

July 29, 1999.

Brian D. Grosinger, Assistant State's Attorney, Mandan, for plaintiff and appellee.

Chad R. McCabe, Vinje Law Firm, Bismarck, for defendant and appellant.

Jonathan R. Byers, Assistant Attorney General, Bismarck; amicus curiae, submitted on brief.

SANDSTROM, Justice.

¶1 James A. Burr appeals from the criminal judgment entered upon his conditional plea of guilty to the class A misdemeanor of a failure to comply with convicted sex offender registration. Because his conviction of the underlying sexual offense occurred before sexual offender registration law was enacted, he argues its application to him is ex post facto punishment. We affirm.

I

¶2 On May 11, 1991, James Burr was charged with Gross Sexual Imposition for forcing a 35-year-old woman to engage in a sex act. The charge was reduced to Sexual Imposition, and Burr pled guilty and was sentenced to 18 months in jail with all but 45 days suspended for two years. At the time of sentencing, he was not required to register as a sexual offender.

¶3 North Dakota's sex offender registration statutes were first enacted in 1991. 1991 N.D. Sess. Laws chs. 124, 136. Separate statutes dealt with the registration of sexual offenders and offenders against children, but neither statute was made retroactive. Id. Only offenders convicted after the effective dates of the statutes were required to register. For offenders who committed crimes against minors, district courts were given the option to require registration. A person could not be compelled to register, however, unless the requirement was stated on the court records. 1991 N.D. Sess. Laws ch. 136, subsection 2.

¶4 The 1993 North Dakota State Legislature combined "offenders against children" and "sexual offenders" registration into a single statute. 1993 Sess. Laws ch. 129, § 3. ¹ The last sentence of subsection 2 was changed from "[t]he court may not require a person to register unless the court states this fact on the court records" to read "[t]he court shall require a person to register by stating this requirement on the court records." Id. at subsection 2.

¶5 In subsections a, b, and c of N.D.C.C. § 12.1-32-15(3), the 1995 legislature added three categories of offenders to those required to register. 1995 Sess. Laws ch. 139, § 1. The category of offenders added in subsection c required that James Burr be notified of his obligation to register. His conviction, although not requiring registration until 1995, occurred within the ten-year retroactive period provided for in N.D.C.C. § 12.1-32-15(3)(c).

¶6 In October 1996, Burr acknowledged a duty to register when notified to do so by the Bureau of Criminal Investigation. On October 15, 1996, he registered as a sexual offender with the Mandan Police Department. At that time, Burr was given a green copy of the registration form with language advising him of his duty to inform law enforcement if he made any change at all in his address, and of his duty to register with a new city or county law enforcement agency if he moved to another city or county. Burr subsequently moved to Bismarck, but failed to notify the Mandan Police Department of his move, thus violating the requirements of his registration and leading to his guilty plea and conviction for failure to register. N.D.C.C. § 12.1-32-15(6).

¶7 Burr appeals from the criminal judgment of the South Central Judicial District Court. The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

¶8 Burr argues his motion to dismiss should have been granted because he pled guilty to a sexual offense prior to the enactment of N.D.C.C. § 12.1-32-15(3), and the requirement that he register now as a sexual offender is unconstitutional because it is retroactive and is ex post facto punishment. ²

¶9 Whether a statute is unconstitutional is a question of law, and the statute will be upheld unless its challenger demonstrates the statute's unconstitutionality. Best Products Co., Inc. v. Spaeth, 461 N.W.2d 91, 96 (N.D.1990). An act of the legislature is presumed to be correct, valid, and constitutional, and any doubt about its constitutionality must, where possible, be resolved in favor of its validity. Southern Valley Grain Dealers Ass'n v. Board of County Comm'rs of Richland County, 257 N.W.2d 425, 434 (N.D.1977). A party raising a constitutional challenge should bring up his "heavy artillery" or forego the attack entirely. State v. Harmon, 1997 ND 233, p 33, 575 N.W.2d 635 (on petition for rehearing); Southern Valley Grain Dealers Ass'n, at 434. Because this is a question of law, it is fully reviewable on appeal. Moran v. North Dakota Dep't of Transp., 543 N.W.2d 767, 769 (N.D.1996).

A

¶10 North Dakota's sexual offender registration statute provides, in part:

3. After a person has pled guilty to or been found guilty of a crime against a child or an attempted crime against a child, or after a person has pled guilty or been found guilty as a sexual offender, the court shall impose, in addition to any penalty provided by law, a requirement that the person register, within ten days of coming into a county in which the person resides or is temporarily domiciled, with the chief of police of the city or the sheriff of the county if the person resides in an area other than a city. The court shall require a person to register by stating this requirement on the court records. A person must also register if that person:

a. Is incarcerated or is on probation or parole on August 1, 1995, for a crime against a child or as a sexual offender;

b. Has pled guilty or nolo contendere to, or been found guilty of, an offense in a court of another state or the federal government equivalent to those offenses set forth in subdivisions a and c of subsection 1; or

c. Has pled guilty to or been found guilty of a crime against a child or as a sexual offender within ten years prior to August 1, 1995.

N.D.C.C. § 12.1-32-15(3). ³ Burr argues requiring him to register under this section violates due process and is an ex post facto law. See U.S. Const. art. 1, sec. 10; N.D. Const. art. I, sec. 18. This Court has defined an ex post facto law:

1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2. Every law that aggravates a crime, or makes it greater than it was, when committed. 3. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4. Every law that alters the legal rules of evidence and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

State v. Jensen, 333 N.W.2d 686, 693-94 (N.D.1983) (quoting State v. Pleason, 56 ND 499, 218 N.W. 154, 155 (1928) (quoting Calder v. Bull, 3 U.S. (Dall.)386, 1 L.Ed. 648 (1798))). No statute can be an ex post facto law prohibited by the United States Constitution unless it makes previously legal conduct criminal or increases the punishment for an existing crime. Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (citing Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884)).

¶11 The legislature is free to apply statutes retroactively unless doing so would result in ex post facto application. State v. Cummings, 386 N.W.2d 468, 471 (N.D.1986). A law imposing a collateral consequence of a conviction may be applied retroactively if the purpose is not to punish the offender but to protect some other legitimate interest. See State v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1068 (1994) (sex offender registration statute is retrospective, but it does not alter the standard of punishment that existed under prior law); State v. Noble, 171 Ariz. 171, 829 P.2d 1217, 1224 (Ariz.1992) (the retrospective application of the sex offender registration statute does not punish and is not unconstitutional). North Dakota Century Code, section 12.1-32-15(3), is retroactive, but the important question becomes whether it is regulatory or punitive. See United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980) (finding the ex post facto clause applies only to criminal punishment and not to remedial regulations). We first determine whether the legislature intended to punish an offender for a past act "or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation." De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960).

¶12 "In ascertaining legislative intent, we look first at the words used in the statute, giving them their ordinary, plain-language meaning." Estate of Thompson, 1998 ND 226, p 7, 586 N.W.2d 847 (citing Shiek v. North Dakota Workers Comp. Bureau, 1998 ND 139, p 16, 582 N.W.2d 639). If the language of a statute is clear and unambiguous, the legislative intent is presumed clear from the face of the statute. Id. (quoting Medcenter One, Inc. v. North Dakota State Bd. of Pharmacy, 1997 ND 54, p 13, 561 N.W.2d 634). If the statutory language is unclear or ambiguous, we often use extrinsic aids to interpret the statute. Id. (citing Hassan v. Brooks, 1997 ND 150, p 5, 566 N.W.2d 822). When interpreting an ambiguous statute, and "a public interest is affected, an interpretation is preferred which favors the public. A narrow construction should not be permitted to undermine the public policy sought to be served." Id. (quoting 2B Norman J. Singer, Sutherland Stat. Constr. § 56.01 (5th ed.1992)).

¶13 The language of N.D.C.C. § 12.1-32-15(3) is clear--the registration requirement is applied to anyone convicted of a sexual offense as defined by the statute, and by anyone who was...