State v. O'Dell
| Decision Date | 01 March 2017 |
| Docket Number | I.D. NO. 1507023289 |
| Parties | STATE OF DELAWARE, v. ROBERT C. O'DELL, Defendant. |
| Court | Delaware Superior Court |
Upon the State of Delaware's Motion to Designate the Defendant as a Tier I Sex Offender. Denied.
Upon Defendant's Motion for Relief from Sex Offender Designation. Granted.
Kathleen A. Dickerson, Esquire, Department of Justice, Dover, Delaware; attorney for the State of Delaware.
Anthony J. Capone, Esquire, Office of the Public Defender, Dover, Delaware; attorney for the Defendant.
WITHAM, R.J.
This case centers around a thorny question of statutory construction and interpretation. It forces the Court and the parties to wade once again into the morass of Delaware's sex-offender registration and community notification scheme and to endeavor to bring some measure of certainty and clarity to some of the scheme's inartfully drafted provisions. The statute's confusing language clouds with uncertainty the process by which convicted low-risk sex offenders may ask the Court to relieve them from being designated as offenders.
Before the Court are Defendant Robert O'Dell's Motion for Relief From Sex Offender Designation and the State's Motion to Designate the Defendant as a Tier I Sex Offender. At the first date scheduled for Mr. O'Dell's sentencing, the Court asked the parties whether its earlier decision in State v. President1 barred consideration of Mr. O'Dell's motion for relief. The parties requested a continuance to submit memoranda of law. On February 15, 2017, the parties argued their motions before the Court.
The Court concludes that the statute permits defendants who are convicted of Tier I offenses to move for relief from designation, departing from dicta in State v. President.2 Having determined that Mr. O'Dell may move for relief, the Court finds that he has met his burden of demonstrating by a preponderance of the evidence that he is not likely to pose a threat to public safety if he is released from his registration obligations. The State's Motion to Designate is DENIED and Mr. O'Dell's Motionfor Relief is GRANTED.
Mr. O'Dell was indicted on October 5, 2015 on two counts of Rape in the Fourth Degree arising out of an incident in which he had sexual intercourse with a victim four years his junior. Mr. O'Dell was nineteen at the time of the offense, and his victim was fifteen. According to the State, Mr. O'Dell met his victim online, had phone contact with her, and eventually walked from his home in Delmar, Maryland toward her home in the Dover, Delaware area. The victim and her mother picked him up and brought him to her home, but the mother eventually kicked him out. The victim snuck out of the house and then ran away with Mr. O'Dell. The pair then had sexual intercourse.
Mr. O'Dell was re-indicted on November 2, 2015 to add a charge of Non-Compliance with Bond for having unauthorized contact with his victim.
The State and Mr. O'Dell entered into a plea agreement wherein he pleaded guilty to Unlawful Sexual Contact in the Third Degree and Non-Compliance with Bond. The parties submitted motions prior to sentencing. Mr. O'Dell sought relief from designation as a sex offender, and the State sought for the Court to designate Mr. O'Dell as a Tier I offender.
This is the Court's decision on those motions.
Mr. O'Dell contends that 11 Del. C. § 4121(d)(6)(a) is ambiguous and contradictory, and that its legislative history indicates that the General Assemblyintended to leave an avenue for relief at sentencing for offenders convicted of Tier I misdemeanors. He argues that he is unlikely to pose a threat to public safety based on a psychological evaluation which indicated that he posed a low to moderate risk of reoffense, as well as the presence of various mitigating factors that would make reoffense unlikely.
The State argues that 11 Del. C. § 4121(d)(6)(a) is unambiguous in that there are circumstances in which a misdemeanor could result in a Tier II or Tier III designation. It points to the facts that Mr. O'Dell traveled a great distance to meet and have intercourse with an underage victim, and that he then contacted her in violation of the terms of his release. Based on these facts, it argues, Mr. O'Dell poses a threat to public safety.
The Court follows a straightforward standard when interpreting and construing statutes. The first issue is to determine whether the statute is ambiguous.3 A statute is ambiguous when it is "capable of being interpreted in two or more different senses."4 "If the statute is unambiguous, . . . there is no room for judicial interpretation and 'the plain meaning of the statutory language controls.'"5
But if the statute is ambiguous, "we consider the statute as a whole, rather than in parts, and we read each section in light of all others to produce a harmoniouswhole."6
A defendant may petition the sentencing court for relief from designation as a sex offender if three elements are satisfied:
Delaware's sex offender registration and notification scheme does provide the possibility of relief from designation for sex offenders accused of Tier I misdemeanors. Mr. O'Dell's petition will be granted because the uncontradicted results of his psychological evaluation show that he is unlikely to reoffend.
In construing the provisions of 11 Del. C. § 4121(d)(6), the Court will review the background of its enactment and the decisional law that Delaware courts have generated thus far. The Court determines, based on an analysis of the text, the application of the canons of statutory construction, and a review of the legislativehistory, that the relief-from-designation provision permits offenders convicted of Tier I misdemeanors to petition for relief.
In order to frame the issues surrounding the interpretation of 11 Del. C. § 4121(d)(6), the Court will review the sex offender registration and notification scheme as a whole, the federal and state legislative changes that led to the enactment of Senate Bill 60 in 2007, and the case law that resulted from the enactment of Senate Bill 60.
Delaware's sex offender registration scheme contemplates three tiers of sex offenses.8 For Tier II and Tier III offenses, the statute enumerates the crimes that presumptively fall within each tier.9 Tier I includes all sex offenses not enumerated within Tier II and Tier III.10 A comprehensive list of sex offenses that give rise to a registration requirement is also provided within the statute.11
Once an individual is convicted or adjudicated delinquent of any sex offense, "the court shall inform the person that the person shall be designated as a sex offender and that a Risk Assessment Tier will be assigned to that person by the court."12 Following the sentencing, "the sentencing court shall assign the defendant to the RiskAssessment Tier applicable for the originally charged offense."13
Tier III crimes are among the most serious sexual crimes that an individual might commit, including first and second degree rape.14 Tier II crimes are serious sexual crimes that nonetheless are not as serious as Tier III offenses, including third degree rape in the absence of certain aggravating circumstances, fourth degree rape, and child pornography offenses.15 Tier I offenses are unenumerated, but include all sex offenses that are designated as misdemeanors.16
An individual convicted of a misdemeanor sex crime may, under certain circumstances, be assigned to a higher tier. For example, the State may move for a defendant convicted of a Tier I offense to be designated to Tier II "if the sentencing court determines by a preponderance of the evidence . . . that public safety will be enhanced by assigning the offender to Risk Assessment Tier II."17 Likewise, a defendant convicted of a second Tier I offense within five years of the previous offense will be designated to Tier II.18 And when a defendant is charged with one tier of offense and ultimately pleads guilty to a lesser included charge of that offense, he will be placed in the tier of the originally charged offense.19
Prior to amendments to the sex offender registration scheme in 2007, an individual could petition the sentencing court for relief from designation prior to sentencing if (1) the offense was a misdemeanor and the victim was not under 13 years of age, (2) the person had not previously been convicted of a violent felony or sex offense, and (3) "[t]he sentencing court determine[d] by a preponderance of the evidence that" the defendant "is not likely to pose a threat to public safety if released from the obligations imposed by this section, and by § 4120 of this title."20 The provision imposed an additional requirement that a defendant could not petition for relief if the victim was under eighteen unless the defendant was also under eighteen at the time of the offense.21
In 2006, Congress enacted the Adam Walsh Child Protection and Safety Act.22 Title I of the Act was designated as the Sex Offender Registration and Notification Act (SORNA).23 SORNA was created "to protect the public from sex offenders and offenders against children" by "establish[ing] a...
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