State v. Costello
| Decision Date | 15 June 1994 |
| Docket Number | No. 93-767,93-767 |
| Parties | The STATE of New Hampshire v. Robert B. COSTELLO. |
| Court | New Hampshire Supreme Court |
Jeffrey R. Howard, Atty. Gen. (Donald Feith, Sr. Asst. Atty. Gen., on the brief, and Joseph Laplante, Asst. Atty. Gen., orally), for State.
Michael C. Shklar, Newport, by brief and orally, for defendant.
This is an interlocutory transfer without ruling from the Claremont District Court (Leahy, J). The sole question before us is whether applying RSA 632-A:14 (Supp.1993), which requires registration of sexual offenders, to the defendant, whose conviction antedated enactment of the statute, violates State and federal constitutional prohibitions against ex post facto laws. We hold that it does not. The defendant's additional argument raising a State constitutional due process claim was not contemplated in the interlocutory transfer, and we therefore do not address it.
The facts are not in dispute. The defendant was convicted of a sexual offense in 1991 in Massachusetts and was placed on probation for three years. His probation was subsequently transferred to New Hampshire. In 1992, the legislature enacted RSA 632-A:11-:19 (Supp.1993), a statutory scheme requiring that convicted sexual offenders register with the State Police. A July 1993 amendment to the statute operated to apply the statute retrospectively to the defendant. See Laws 1993, 135:1; RSA 632-A:13.
In the fall of 1993, the defendant was advised by a probation officer of his obligation to register as a sexual offender. When he did not, a misdemeanor complaint was filed, pursuant to RSA 632-A:19, II, charging him with failure to register. The defendant then concurrently filed a motion to dismiss and a motion for an interlocutory transfer without ruling, arguing that the retrospective application of the registration requirement to him was an ex post facto violation under the State and Federal Constitutions. The district court granted the motion for interlocutory transfer.
State v. Reynolds, 138 N.H. 519, ----, 642 A.2d 1368, 1370 (1994) (quotation omitted). Because the analysis is the same under both constitutions, we decide this matter under the State Constitution, referring to federal decisions to the extent they may be of assistance. Hamel, 137 N.H. at 494, 629 A.2d at 806.
The defendant argues that the registration requirement as applied to him is ex post facto because it is retrospective and disadvantages him. See State v. Ballou, 125 N.H. 304, 308-09, 481 A.2d 260, 262 (1984). The statute, he contends, adds a new burden that constitutes greater punishment for his crime than existed at the time he committed it. The State does not dispute that the law is retrospective as applied to the defendant. Even though the law may disadvantage the defendant, unless it also provides greater punishment, its application to him is not ex post facto. See Hamel, 137 N.H. at 495, 629 A.2d at 806. Our only concern, therefore, is whether the statute "inflicts greater punishment" for the offense. See Reynolds, 138 N.H. at ----, 642 A.2d at 1370. We conclude, upon review of the statutory scheme and its underlying legislative purpose, that it does not.
RSA 632-A:12, I, requires registration of all sexual offenders "with the department of safety, division of state police." "Sexual offenders" are persons who have been convicted of certain sexual assault offenses in this or any other jurisdiction. RSA 632-A:11, III. The sexual offender must report his or her current address annually to the local law enforcement agency, which in turn forwards the information to the State Police for entry in the law enforcement name search (LENS) system. RSA 632-A:14; see also RSA 632-A:12, II, III. This information is held confidentially within the law enforcement community, RSA 632-A:17, with local law enforcement agencies notified when the offender relocates, RSA 632-A:13, II; RSA 632-A:15. Failure of a sexual offender to report as required is a violation if negligent, RSA 632-A:19, I, and a misdemeanor if knowing, RSA 632-A:19, II.
On its face the statute does not purport to be punitive but is merely regulatory, providing a means for law enforcement agencies in this State to share information regarding the whereabouts of convicted sexual offenders. The remarks of Senator Podles with respect to the underlying bill bear this out:
Deciding whether this statute is punitive or regulatory is critical because the prohibition against ex post facto laws applies only to statutes that impose penalties. See ...
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