State v. Hamilton

• Decision Date: 11 July 2007
• Docket Number: No. DA 06-0590.,DA 06-0590.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Scott HAMILTON, Defendant and Appellant.
• Court: Montana Supreme Court

164 P.3d 884

2007 MT 167

338 Mont. 142

STATE of Montana, Plaintiff and Respondent, v. Scott HAMILTON, Defendant and Appellant.

No. DA 06-0590.

Supreme Court of Montana.

Submitted on Briefs April 25, 2007.

Decided July 11, 2007.

Rehearing Denied August 8, 2007.

For Appellant: Terry G. Sehestedt, Missoula, Montana.

For Respondent: Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, County Attorney; Karen Townsend, Deputy County Attorney, Missoula, Montana.

Justice W. WILLIAM LEAPHARTdelivered the Opinion of the Court.

¶ 1 Scott Hamilton was charged with, and ultimately pled guilty to, felony failure to register as a sexual offender. He appeals from an order of the Fourth Judicial District Court, Missoula County, denying his motion to dismiss. We affirm.

¶ 2 The issue on appeal is whether the District Court erred in denying Hamilton's motion to dismiss.

BACKGROUND

¶ 3 As a sixteen-year-old youth in 1996, Hamilton had pled guilty and was convicted of communication with a minor for immoral purposes (CMIP) in violation of Wash. Rev. Code § 9.68A.090, in Yakima County, Washington. Hamilton was ordered to register as a sex offender. Hamilton moved to Texas in 1999 and was told he did not need to register as a sex offender there. Hamilton moved to Montana in early 2000. In July 2001, the Washington Legislature removed the offense of CMIP from the list of offenses requiring registration, but added CMIP back to the list in 2002. In October 2005, the Montana Legislature amended Montana's Sexual and Violent Offender Registration Act (Act) so that offenders had to register in Montana if they had to register for an offense in some other jurisdiction where they were convicted. In November 2005, when Missoula police detectives investigated an assault with a weapon complaint implicating Hamilton, they discovered that Hamilton had been ordered to register as a sex offender in Washington, but had not done so in Montana. He was charged with felony failure to register as a sexual offender.

¶ 4 Hamilton filed a motion to dismiss the charge on the basis that youth are not considered to be convicted as required by the Act and thus not required to register, that CMIP was not reasonably equivalent to any offense in Montana, and that the 2005 legislative amendment to the Act was not retroactive, or alternatively, that it was unconstitutional. The State asserted that CMIP was reasonably equivalent to § 45-5-625, MCA, sexual abuse of children. The District Court denied Hamilton's motion to dismiss, finding that a youth is required to register, and that the 2005 amendment to the Act was retroactive. Hamilton appeals.

STANDARD OF REVIEW

¶ 5 The grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo. State v. Mount, 2003 MT 275, ¶ 15, 317 Mont. 481, ¶ 15, 78 P.3d 829, ¶ 15.

DISCUSSION

¶ 6 ISSUE: Did the District Court err in denying Hamilton's motion to dismiss?

¶ 7 On appeal, Hamilton argues that Washington's CMIP statute is not reasonably equivalent to any offense in Montana requiring sexual offender registration, that the 2005 amendment to the Act is not retroactive, or alternatively, if the amendment is retroactive, it violates Article XIII, Section 1(3) of the Montana Constitution. The State argues that Washington's CMIP statute, Wash. Rev.Code § 9.68A.090, is reasonably equivalent to § 45-5-625, MCA, sexual abuse of children.

¶ 8 A sexual offender is required to register with the city chief of police or county sheriff within ten days of entering a county for the purpose of residing there. Section 46-23-504, MCA. The sexual offender must register for the commission of a sexual offense, which is defined in § 46-23-502(6), MCA, as:

(a) any violation of or attempt, solicitation, or conspiracy to commit a violation of 45-5-301 (if the victim is less than 18 years of age and the offender is not a parent of the victim), 45-5-302, 45-5-303, 45-5-502(3), 45-5-503, 45-5-504(1) (if the victim is under 18 years of age and the offender is 18 years of age or older), 45-5-504(2)(c), 45-5-507 (if the victim is under 18 years of age and the offender is 3 or more years older than the victim), 45-5-603(1)(b), or 45-5-625; or

(b) any violation of a law of another state or the federal government that is reasonably equivalent to a violation listed in subsection (6)(a) or for which the offender was required to register as a sex offender after conviction.

¶ 9 Since the enactment of the Act in 1989, sexual offenders convicted in other jurisdictions have been required to register for offenses that are reasonably equivalent to Montana offenses listed in § 46-23-502(6)(a), MCA. Section 2, Ch. 293, L.1989. In 2005, the Legislature amended the definition of "sexual offense" to include any violation of a law of another jurisdiction for which a person was required to register as a sex offender after conviction in that jurisdiction. Section 1, Ch. 313, L.2005; § 46-23-502(6)(b), MCA.

¶ 10 Hamilton argues that the 2005 amendment is not retroactive and cannot be applied to persons convicted of sex offenses prior to October 1, 2005. There is a presumption in Montana law against applying statutes retroactively. Neel v. First Federal Sav. and Loan Assoc., 207 Mont. 376, 386, 675 P.2d 96, 102 (1984) (citations omitted). Section 1-2-109, MCA, provides that statutes are not retroactive unless expressly declared retroactive by the Legislature. Legislative intent that statutes be applied retroactively must be manifest in the statutes and from no other source. Neel, 207 Mont. at 386, 675 P.2d at 102 (citations omitted). However, if an act was unmistakably "intended to operate retrospectively, that intention is controlling as to the interpretation of the statute, even though it is not expressly so stated." Neel, 207 Mont. at 386, 675 P.2d at 102 (citations omitted). In Neel, this Court looked at the purpose of the homestead law — to protect the home owner — to determine that the legislative intent of the statute, which increased the amount of the homestead exemption, was to apply retroactively despite the absence of an express declaration. Neel, 207 Mont. at 387, 675 P.2d at 102.

¶ 11 In State v. Whitmer, 285 Mont. 100, 101, 946 P.2d 137, 138 (1997), this Court addressed whether the 1995 amendments to the Sexual and Violent Offender Registration Act, which required violent offenders to register, were intended by the Legislature to apply retroactively. The Court examined the legislative history and discovered that the original house bill included a statement of retroactivity, but in order to address as-of-yet-unresolved concerns of ex post facto violations, the bill was amended by deleting the retroactivity clause. Whitmer, 285 Mont. at 102, 946 P.2d at 139. Based on that specific deletion, the Court concluded that the Legislature did not intend to apply the registration requirement to offenders who were convicted of violent offenses prior to October 1, 1995, the effective date of the amendment, or to sexual offenders prior to July 1, 1989, the date of enactment of the Act. Whitmer, 285 Mont. at 103, 946 P.2d at 139.

¶ 12 The 2001 Montana Legislature explicitly stated that the provisions of the Act applied retroactively. Section 1, Ch. 152, L.2001. The Legislature specifically provided that the Act applied retroactively to sexual offenders "who are sentenced by a state or federal court in any state on or after July 1, 1989, or who as a result of a sentence are under the supervision of a county, state, or federal agency in any state on or after July 1, 1989 . . . ." Section 1, Ch. 152, L.2001; State v. Villanueva, 2005 MT 192, ¶ 15, 328 Mont. 135, ¶ 15, 118 P.3d 179, ¶ 15. In 2003, this Court held that the Act's retroactive application does not violate the ex post facto clauses of the United States and Montana Constitutions because the Act is regulatory rather than punitive. Mount, ¶¶ 89-90.

¶ 13 In 2005, the Legislature amended the Act to provide that a sexual offense included an offense "for which the offender was required to register as a sex offender after conviction" in another jurisdiction. Section 1, Ch. 313, L.2005; § 46-23-502(6)(b), MCA. The 2005 amendments also included changes regarding the entity with whom an offender must register, procedures for change-of-address notifications, procedures for petitioning for relief from registration. Section 1, Ch. 313, L.2005. The amendments further provided that offenders convicted in another jurisdiction be given the risk level designation assigned by that jurisdiction. Section 1, Ch. 313, L.2005. However, the Legislature failed to provide an explicit statement of retroactivity with regard to the 2005 amendments. See § 1, Ch. 313, L.2005; § 46-23-502(6), MCA.

¶ 14 We must therefore determine whether the Legislature clearly intended that the statute operate retroactively. See Neel, 207 Mont. at 386, 675 P.2d at 102. The purpose of the Act is to address public health, safety, and welfare concerns, including:

(1) the danger of recidivism and protection of the public; (2) the impairment of law enforcement efforts from lack of information; (3) the prevention of victimization and prompt resolution of sexual or violent offenses; (4) the offender's reduced expectation of privacy because of the public's interest in safety; and (5) the protection of specific vulnerable groups and the public in general.

Mount, ¶ 44 (citing Compiler's Comments to Title 46, Chapter 23, Part 5, MCA). The legislative history for the 2005 amendments indicates that the changes were made to clarify administrative issues that had arisen over the course of administering the Act and to better serve the public. Mont. Sen. Jud. Comm., Hearing on HB 49, 2005 Reg. Sess. (Mar. 14, 2005). Specifically, the legislative history notes that Section 1 of House Bill 49, amending § 46-23-502(6), MCA, would, "as a matter of public safety," require...