State v. Guidry

• Decision Date: 06 August 2004
• Docket Number: No. 22727.,22727.
• Citation: 96 P.3d 242,105 Haw. 222
• Parties: STATE of Hawai'i, Plaintiff-Appellee v. John R. GUIDRY, Defendant-Appellant.
• Court: Hawaii Supreme Court

96 P.3d 242

105 Haw. 222

STATE of Hawai'i, Plaintiff-Appellee v. John R. GUIDRY, Defendant-Appellant.

No. 22727.

Supreme Court of Hawai'i.

August 6, 2004.

Deborah L. Kim, Deputy Public Defender, on the briefs, for defendant-appellant.

Mangmang Qiu Brown, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by ACOBA, J.

In State v. Bani, 97 Hawai'i 285, 36 P.3d 1255 (2001), this court invalidated the notification or disclosure element of Hawai'i Revised Statutes (HRS) § 846E-3 (Supp.2001), which authorized public agencies to release relevant and necessary information regarding a convicted sex offender. Id. at 287, 36 P.3d at 1257. It was held that "the absence of any procedural safeguards in the public notification provision of HRS chapter 846E renders the public notification portion of HRS chapter 846E unconstitutional, void, and unenforceable." Id. Following our holding in Bani, HRS § 846E-3, entitled "Access to registration information," was amended to include, inter alia, a hearing to provide a sex offender with the opportunity to present evidence to show that "the offender does not represent a threat to the community and that public release of relevant information is not necessary." HRS § 846E-3(d) (Supp.2003).

With respect to the registration aspect of the statute, which mandates lifetime registration and monitoring of sex offenders, Bani concluded that "[t]here is nothing inherent in the act of registering that imposes on any of Bani's protected liberty interests." Bani, 97 Hawai'i at 292, 36 P.3d at 1262. At the time Bani was decided, HRS § 846E-2(a) (Supp. 2001) stated that "[a] sex offender shall register with the attorney general and comply with the provisions of this chapter for life." The same statutory language is at issue in the instant case. However, in Bani this court did not address the issue of lifetime registration but, rather, focused on the initial act of registering in the context of notification. The ruling of the first circuit court (the court) in the case at hand directly questions the constitutionality of absolute lifetime registration requirement in isolation and whether such requirements trigger procedural due process protections under the Hawai'i Constitution.

For the reasons discussed herein, we hold that the lifetime registration component of the Hawai'i sex offender registration statute implicates a protected liberty interest under the Hawai'i State Constitution, article I, section V and requires that minimum requirements of due process—notice and the opportunity to be heard—be afforded to convicted sex offenders. Such a proceeding may be instituted by a sex offender in a special proceeding. We hold further, that Defendant-Appellant John R. Guidry (Guidry) is not entitled to relief on other grounds asserted by him.

We cannot agree, however, that a hearing prior to registration is mandated as contended by Guidry. In Bani, this court said that the act of registration, itself, does not impose on a defendant's protected liberty interest. Bani, 97 Hawai'i at 292, 36 P.3d at 1262. Because of the nature of the absolute lifetime requirements in HRS chapter 846E, due process does not require that a hearing be held at any specific time. "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Id.

The record does not indicate that Guidry filed an action for such a hearing. In light of the foregoing, we affirm the court's June 3, 1999 order denying Guidry's motion to dismiss and its judgment of conviction and sentence under HRS § 846E-6 for Guidry's failure to comply with registration requirements.

I.

In 1992, Guidry was convicted of sexual assault in the second degree, a class B felony.¹ Guidry was required to register under HRS § 846E-6 as a result of his 1992 conviction.

On March 24, 1999, Guidry was charged as follows: Count I, Failure to Register Change of Registration Information as a Sex Offender, HRS § 846E-6 (Supp.2001), and Counts II-IV, Sexual Assault in the Fourth Degree, HRS § 707-733(1)(b) (Supp.2001). On April 27, 1999, Guidry filed a Motion for Severance of Charges that was granted by the court.² Thus, the failure to register charge was severed and is reviewed separately in this appeal.

On May 3, 1999, Guidry filed a Motion to Dismiss Count I of the Indictment Based on the Unconstitutionality of HRS chapter 846E (motion to dismiss). On June 3, 1999, the court³ filed its order denying the motion to dismiss (1999 Order).

In the 1999 Order, the court "incorporate[d] by reference the following passages" of the order "filed on December 15, 1998, in Cr. No. 98-0072, State of Hawai'i v. Russell Akina," as follows:

Conclusions of Law

I. The Statute—HRS Chapter 846E "Sex Offender Registration and Notification"

....

III. CLAIMS BASED ON DEFENDANT'S LIBERTY INTERESTS

V-H. However, based on the record before it, the Court finds that the requirement of lifetime registration with no possible avenue for relief violates the procedural due process rights of the defendant....

V-I. Defendant's remedy, however, is not dismissal of his case based on these grounds. The failure to report his change in address is as relevant to the registration portion of the statute as it is to the notification portion. Even if, in a later action, the notification provisions of the statute are enjoined until some remedial legislative action, defendant's duty to report changes in residence would continue. The twin problems of lifetime reporting and Internet access must be addressed by an action for injunctive relief. The prayer for relief is not before this Court.

V-J. The Defendant's Motion to Dismiss for Violation of Defendant's Procedural Due Process Rights, filed April 14, 1998, and Motion to Dismiss for Violation of Article I, Section 6 of Hawai'i Constitution and Violation of Fundamental Right to Privacy under the United States Constitution, filed April 14, 1998 are denied.

(Emphases added.)

As such, although the court concluded that compelling lifetime registration with no possible avenue for relief violated procedural due process, the court decided that Guidry was not entitled to a dismissal of the charges. Instead, the court noted that Guidry could seek injunctive relief from the unconstitutional portions of the statute and denied the motion.

Accordingly, Guidry's case proceeded to trial.⁴ The jury found Guidry guilty as charged, and the court sentenced Guidry to five years' probation, as entered in the August 5, 1999 notice of entry of the judgment.⁵

II.

The subject of the instant appeal is limited to Guidry's motion to dismiss, based on the unconstitutionality of HRS chapter 846E. On appeal, Guidry contends that HRS chapter 846E violates: (1) the procedural due process requirements of the United States and Hawai'i Constitutions;⁶ (2) the prohibition against ex post facto laws of the United States and Hawai'i Constitutions; (3) the cruel and unusual punishment clauses of the United States and Hawai'i Constitutions; (4) the right to privacy under the United States and Hawai'i Constitutions; and (5) the equal protection clauses of the United States and Hawai'i Constitutions. Guidry also argues that because the court concluded that the lifetime registration requirement and the overly-broad notification provision violated procedural due process, the court should have granted Guidry's Motion to Dismiss.

In response, Plaintiff-Appellee State of Hawai'i (the prosecution) argues that HRS chapter 846E does not violate the due process clauses of the United States or the Hawai'i Constitutions, because: (1) Guidry has not made a sufficient preliminary showing to sustain a procedural due process claim that he has a protected interest within the meaning of the due process clause; (2) the procedures at issue satisfy due process; (3) the private interests affected by the registration and notification are based on speculation, and are derived from his conviction rather than the operation of HRS chapter 846E; (4) in "targeting only the most dangerous of sex offenders as subject to its registration and notification requirements," HRS chapter 846E poses no significant risk of an erroneous deprivation; and (5) the government has a compelling interest in protecting the public from harm cause by sex offenders.⁷

III.

HRS chapter 846E applies to a convicted sex offender,⁸ defined as "[a]ny person convicted of a `sexually violent offense' or a `criminal offense against a victim who is a minor[.]'" HRS § 846E-1.⁹ This definition encompasses the full range of sex crimes from the most severe cases of rape to misdemeanor sexual assault.¹⁰ Once labeled as a sex offender, a person is required under HRS § 846E-2 to register personal information, including name, date of birth, social security number, address, telephone number, and physical description, for the remainder of his or her life.¹¹ Pursuant to HRS § 846E-4(e), a sex offender must register in person with the county chief of police whenever s/he intends to remain in another jurisdiction for more than ten days, and HRS § 846E-5 requires registrants to verify their information in writing every ninety days. Registrants must also report in person every five years for the purpose of having a new photograph taken. HRS § 846E-4(e).

Convicted sex offenders are required to register with the attorney general; notify the attorney general in writing of any change in name, employment, or residence address within three working days of the change; mail a signed and completed form to the attorney general every ninety days in order to verify registration information; and report in person every five years to the county chief of police of the county where the sex offender's residence is located for purposes of having a new photograph taken. HRS §§ 846E-2, -4, -5, -6.

A registrant who recklessly fails...