State v. Enquist, 40364–1–II.

• Decision Date: 05 August 2011
• Docket Number: No. 40364–1–II.,40364–1–II.
• Parties: STATE of Washington, Respondent,v.Gerald Duaine ENQUIST, Appellant.
• Court: Washington Court of Appeals

163 Wash.App. 41

256 P.3d 1277

STATE of Washington, Respondent,

v.Gerald Duaine ENQUIST, Appellant.

No. 40364–1–II.

Court of Appeals of Washington, Division 2.

Aug. 5, 2011.

Stephanie C. Cunningham, Attorney at Law, Seattle, WA, for Appellant.Kathleen Proctor, Pierce County Prosecuting Atty. Ofc., Tacoma, WA, for Respondent.JOHANSON, J.

[163 Wash.App. 44] ¶ 1 After a bench trial, the trial court found Gerald Enquist guilty of one count of failing to register as a sex offender. He appeals, arguing that the transient sex offender registration statute violates ex post facto principles and his right to travel. We hold that the transient sex offender registration requirements are a legitimate and necessary aid to law enforcement, are not unduly burdensome, and do not unconstitutionally limit transient sex offenders' right to travel. In addition, we reject Enquist's statement of additional grounds arguments that the transient sex offender requirements violate his civil rights. We affirm.

FACTS

¶ 2 The parties stipulated to the following facts at trial. In 1976, Enquist was convicted of two counts of robbery and two counts of first degree rape. He served 30 years for these offenses. Before his release on April 26, 2007, Enquist received notice of the sex offender registration requirements. Enquist also stipulated that he was either transient or at a fixed residence during the applicable violation period and that he knowingly failed to register between April 27, 2007, and June 16, 2009.

¶ 3 In addition, Enquist testified as follows. He did not register because he did not believe the registration requirements applied to him because he had already served the statutory maximum for his crimes and he was sentenced before the Sentencing Reform Act and the sex offender registration statute were passed. He lost the only job he had found since his release (picking up rental cars left in other states) because the registration requirements for transient offenders required him to report to the sheriff in person each week. Enquist admitted on cross-examination that he was “speculat[ing]” when he testified that the registration requirements would interfere with his ability to hold the job. Verbatim Report of Proceedings (VRP) at 21. Enquist also argued that under other statutes he was entitled to the restoration of all his civil rights, including the rights to privacy and to travel. He claimed that former RCW 9A.44.130 (2006) ¹ violated those rights and therefore the statute did not apply to him.

¶ 4 The trial court found Enquist guilty of failing to register as a sex offender. He appeals.

ANALYSIS

I. Ex Post Facto

¶ 5 Enquist argues that the sex offender registration statute violates the ex post facto clauses of the United States and Washington Constitutions because the statute retroactively imposes punishment by requiring people without a fixed residence to report weekly, in person, to the county sheriff's office. We disagree.

¶ 6 We review constitutional issues de novo. State v. Langstead, 155 Wash.App. 448, 452, 228 P.3d 799, review denied, 170 Wash.2d 1009, 249 P.3d 624 (2010). The party challenging a statute has the burden of proving that it is unconstitutional beyond a reasonable doubt. State v. Heckel, 143 Wash.2d 824, 832, 24 P.3d 404, cert. denied, 534 U.S. 997, 122 S.Ct. 467, 151 L.Ed.2d 383 (2001); see also State v. Rice, 159 Wash.App. 545, 561 n. 10, 246 P.3d 234, petition for review filed, No. 85893–4 (Wash. Apr. 14, 2011) (discussing the meaning and application of the beyond a reasonable doubt standard in challenges to the constitutionality of a statute after Sch. Dists.' Alliance for Adequate Funding of Special Ed. v. State, 170 Wash.2d 599, 244 P.3d 1 (2010)).

¶ 7 The ex post facto clauses of the United States and Washington Constitutions forbid the State from enacting any law that imposes punishment for an act that was not punishable when committed or that inflicts a greater punishment than could have been imposed at the time the crime was committed. State v. Ward, 123 Wash.2d 488, 496, 869 P.2d 1062 (1994). The ex post facto analysis is essentially the same in Washington as under the federal constitution. See State v. Edwards, 104 Wash.2d 63, 70, 701 P.2d 508 (1985) (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798)). A law violates ex post facto principles if it (1) is substantive, rather than merely procedural; (2) is retrospective, applying to events that occurred before the law's enactment; and (3) disadvantages the person affected by it. Ward, 123 Wash.2d at 498, 869 P.2d 1062. A law “disadvantages” a defendant only if it enhances the punishment that existed under the prior law. Ward, 123 Wash.2d at 498, 869 P.2d 1062.

¶ 8 In Washington, a convicted sex offender must register at the time of his or her release and again within 24 hours of release at the sheriff's office in the county of his or her residence. Former RCW 9A.44.130(1)(a), (4)(a)(i).² If a registrant has a fixed residence, he or she must provide his or her (1) name, (2) complete residential address, (3) date and place of birth, (4) place of employment, (5) crime for which convicted, (6) date and place of conviction, (7) aliases used, (8) social security number, (9) photograph, and (10) fingerprints. Former RCW 9A.44.130(3)(a). But if the registrant lacks a fixed residence, he or she must provide where he or she plans to stay instead of a complete residential address. Former RCW 9A.44.130(3)(b).

¶ 9 A registrant with a fixed residence must provide written notice of his or her intra-county address change within 72 hours of a move. Former RCW 9A.44.130(5)(a). If a registrant with a fixed residence moves to another county he or she must (1) provide written notice to the new county's sheriff at least 14 days before moving, (2) register with the new county sheriff within 24 hours of moving and (3) provide written notice to the county sheriff with whom he or she formerly registered within 10 days of moving. Former RCW 9A.44.130(5)(a).

¶ 10 In contrast, a registrant who lacks a fixed residence must report weekly, in person, to the sheriff of the county where he or she is registered. Former RCW 9A.44.130(6)(b). The county sheriff's office shall specify the day on which an offender makes a weekly report, and the report shall occur during normal business hours. Former RCW 9A.44.130(6)(b). The county sheriff's office can also require a registrant to keep an accurate accounting of where he or she stays during the week and provide it upon request. Former RCW 9A.44.130(6)(b).³ An offender who lacks a fixed residence, leaves the county in which he or she is registered, and enters and remains in a new county for more than 24 hours, must register with the new county's sheriff within 24 hours ⁴ after entering the new county. Former RCW 9A.44.130(4)(a)(vii).

¶ 11 Our Supreme Court rejected a general argument that RCW 9A.44.130 violates the ex post facto clause in Ward.⁵ There, our Supreme Court presumed that the registration statute was substantive rather than procedural and, because the legislature enacted the statute after the defendants had committed their sex offenses, concluded the statute was retrospective. Ward, 123 Wash.2d at 498, 869 P.2d 1062. But, after an exhaustive review, the Ward court held that the statute did not violate the ex post facto clause because the registration requirement did not constitute a punishment. Ward, 123 Wash.2d at 498–511, 869 P.2d 1062. Our Supreme Court also noted the legislature's “unequivocal[ ]” statement of intent, when enacting the registration statute, as an expression of regulatory intent rather than a punitive one. Ward, 123 Wash.2d at 499, 869 P.2d 1062 (“[T]he Legislature unequivocally stated that the State's policy is to ‘assist local law enforcement agencies' efforts to protect their communities by regulating sex offenders by requiring sex offenders to register with local law enforcement agencies as provided in [ RCW 9A.44.130].’ ” (alteration in original) (quoting Laws of 1990, ch. 3, § 401)). Although Ward was decided before the legislature enacted the transient sex offender registration requirements, we see no reason to deviate from Ward's analysis.

¶ 12 The Ward court relied on four characteristics of the registration statute to conclude that it was not punitive: (1) registration does not overly burden or restrain offenders because it requires that they provide limited information to law enforcement and it does not significantly limit their movement or activities; (2) registration has not been historically regarded as punishment; (3) registration is not primarily designed to deter future crime, which is a traditional purpose of punishment, it is designed to aid law enforcement agencies' efforts to protect communities by providing increased access to necessary and relevant information; and (4) registration is not excessive in relation to the important community interest served by having law enforcement know the presence and location of sex offenders in the community. Ward, 123 Wash.2d at 500–11, 869 P.2d 1062. Sex offenders are free to move within their community or from one community to another, so long as they comply with the statute's registration requirements. Ward, 123 Wash.2d at 501, 869 P.2d 1062.

[163 Wash.App. 49] ¶ 13 Here, as presumed in Ward, the transient registrant requirements are substantive, not procedural. The transient registration requirements were enacted after Enquist's 1976 convictions and apply retroactively. Laws of 1999, 1st Spec. Sess., ch. 6; Ward, 123 Wash.2d at 498, 869 P.2d 1062. But, for the reasons articulated in Ward, the transient registrant requirements are not punitive.

¶ 14 Here, because Enquist has no fixed address, unlike Ward, he must report once a week to the sheriff's office in the county in which he is then residing to confirm his presence in that county. While there, Enquist must also “fill out new paperwork” requiring him...