State v. Hurt, S–2013–476.

• Citation: 340 P.3d 7
• Decision Date: 04 December 2014
• Docket Number: No. S–2013–476.,S–2013–476.
• Parties: STATE of Oklahoma, Appellant, v. Lamont Eugene HURT, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

340 P.3d 7

STATE of Oklahoma, Appellant,
v.
Lamont Eugene HURT, Appellee.

No. S–2013–476.

Court of Criminal Appeals of Oklahoma.

Dec. 4, 2014.

Affirmed and remanded.

Lewis, P.J., concurred in part, dissented in part, and filed opinion.

An Appeal from the District Court of Tulsa County; the Honorable Kurt G. Glassco, District Judge.
Jenny M. Proehl–Day, Assistant District Attorney, Tulsa, OK, counsel for the state at trial and appeal.

Patrick L. Adams, Tulsa, OK, counsel for defendant at trial and appeal.

[340 P.3d 8]

SUMMARY OPINION

LUMPKIN, Judge.

¶ 1 Appellee, Lamont Eugene Hurt, was charged by Information February, 13, 2013, in the District Court of Tulsa County, Case No. CF–2013–720, with Failure To Register As Sex Offender (57 O.S.2011, § 587). The State alleged that Appellee was subject to the terms and conditions of the Sex Offenders Registration Act but had failed to register on or about July 20, 2012. Appellee waived preliminary hearing but filed his Motion to Dismiss and argued that the Sex Offenders Registration Act (57 O.S.2011, §§ 581–590.2) could not be retroactively applied to him. At a hearing held May 13, 2013, the Honorable Kurt G. Glassco sustained Appellee's motion. The State announced its intent to appeal in open court.

¶ 2 The State timely filed its written Notice of Intent to Appeal and Designation of Record seeking to appeal pursuant to subsections 1 and 5 of 22 O.S.2011, § 1053. Since the District Court's order did not suppress or exclude any evidence, we find that § 1053(5) does not provide a method of appeal for the State in the present case. As the District Court quashed or set aside the Information because the facts stated did not constitute a public offense, we find that the State's appeal may properly proceed pursuant to § 1053(1). See State v. Delso, 2013 OK CR 5, ¶¶ 5–7, 298 P.3d 1192, 1193–94; 22 O.S.2011, § 504(4).

¶ 3 In Proposition One, the State contends that the District Court erred when it determined that the 2004 and 2007 amendments to the Sex Offenders Registration Act only applied prospectively. Because this claim raises a question of statutory interpretation, it presents a question of law which this Court reviews de novo. Smith v. State, 2007 OK CR 16, ¶ 40, 157 P.3d 1155, 1169.

¶ 4 On June 10, 1994, Appellee was convicted in District Court of Tulsa County Case No. CF–1993–4114 of Second Degree Rape (Female Under 16) (21 O.S.Supp.1990, § 1111). The District Court sentenced Appellee to imprisonment for ten (10) years all suspended. At that time, the Sex Offenders Registration Act required a sex offender to register with the Department of Corrections within ten (10) business days of being convicted or receiving a suspended sentence if the person was not incarcerated. 57 O.S.Supp.1989, § 583(A). The Act required offenders to maintain registration with the Department of Corrections for a period of ten (10) years from the date of registration. 57 O.S.Supp.1989, § 583(C).

¶ 5 Appellee's ten-year registration period under 57 O.S.Supp.1989, § 583(C) was set to expire on or about June 23, 2004. Just prior to that date, the Oklahoma Legislature amended the mandatory period of registration within § 583(C). 57 O.S.Supp.2004, § 583(C) (Version 2). Effective April 26, 2004, the statute provided that: “Except for habitual or aggravated sex offenders, the person shall be required to register for a period of ten (10) years from the date of the completion of the sentence....” Id.

¶ 6 The Legislature amended the period of registration, again, in 2007. Effective November 1, 2007, the Sex Offenders Registration Act required each offender to be assigned to one of three risk levels. 57 O.S.Supp.2007, §§ 582.1–582.5. Section 583(C) was also amended to set the registration period for each of the three risk levels. 57 O.S.Supp.2007, § 583(C). An offender assigned to the risk level of “one” shall be required to register for a period of fifteen (15) years from the date of completion of the sentence. Id. An offender assigned to the risk level of “two” shall be required to register for a period of twenty-five (25) years from the date of completion of the sentence. Id. A habitual offender, aggravated offender or an offender assigned to the risk level of “three” shall be required to register for life. Id.

¶ 7 If either the 2004 or the 2007 amendments to § 583(C) apply retroactively, they would require Appellee to register as a sex offender during the time frame alleged within the Information. However, “[i]t is a fundamental rule of statutory construction that intervening changes in the law should only be applied prospectively from their effective date, unless the Legislature has specifically declared that they have retroactive effect.” State v. Salathiel, 2013 OK CR 16, ¶ 8, 313 P.3d 263, 266.

[340 P.3d 9]

¶ 8 “[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.” Landgraf v. USI Film Products, 511 U.S. 244, 265, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229 (1994). “Retroactive legislation presents problems of unfairness that are more serious than those posed by prospective legislation, because it can deprive citizens of legitimate expectations and upset settled transactions.” General Motors Corp. v. Romein, 503 U.S. 181, 191, 112 S.Ct. 1105, 1112, 117 L.Ed.2d 328 (1992). Thus, the general common law rule of statutory construction is that statutes and amendments are to be construed to operate only prospectively unless the legislature clearly expresses an intent to the contrary. State v. Watkins, 1992 OK CR 50, ¶ 5, 837 P.2d 477, 478 ( citing Welch v. Armer, 1989 OK 117, ¶ 27, 776 P.2d 847, 850).

¶ 9 The Legislature expressly declared its intent in enacting the Sex Offenders Registration Act. 57 O.S.Supp.1997, § 581(B). The Legislature found that sex offenders pose a high risk of re-offending and implemented the system of registration to protect public safety. Id. Upon its initial implementation, the Legislature provided for prospective application of the Act. The registration requirements only applied to those offenders that were convicted or received a suspended sentence after the effective date of the Act. 57 O.S.Supp.1989, § 582.

¶ 10 We review the amendments to § 583(C) under the presumption against retroactive application and Legislature's original expression of prospective effect within the Act. Turning to 57 O.S.Supp.2004, § 583(C), we find that the Legislature did not expressly declare whether the amended registration period applied prospectively or retroactively.

¶ 11 As the Legislature did not expressly declare that the 2004 amendment was to have retroactive effect, we construe the amendment as having prospective operation unless the intent for retrospective effect is necessarily implied from the language used. Good v. Keel, 1911 OK 264, ¶ 4, 29 Okla. 325, 116 P. 777, 777. However, a statute ought not to be construed as having retrospective operation unless the intention of the Legislature cannot be otherwise satisfied. Adair v. McFarlin, 1911 OK 129, ¶ 5, 28 Okla. 633, 115 P. 787, 788. “It is a rule of construction that statutes will not be given a retroactive effect if any other reasonable construction is possible.” Casey v. Bingham, 1913 OK 321, ¶ 4, 37 Okla. 484, 132 P. 663, 665. “In every case of doubt the doubt must be resolved against the retrospective effect.” Good, 1911 OK 264, ¶ 4, 116 P. at 777.

¶ 12 We find that retroactive effect is not necessarily implied from the language used within the 2004 amendment to § 583. Certainly, there is a doubt concerning the Legislature's intent. Prospective application of the enhanced registration requirements is a reasonable construction of the amendment. As there is not a clear expression of an intent to the contrary from the Legislature, we find that the amendment to the registration period within 57 O.S.Supp.2004, § 583(C), only applies prospectively.

¶ 13 Turning to 57 O.S.Supp.2007, § 583(C), we find that the Legislature did not expressly declare whether the three-tiered registration period enacted within 57 O.S.Supp.2007, § 583(C), applied prospectively or retroactively. However, we are guided by the other statutory provisions that the Legislature enacted to work in conjunction with the three-tiered registration period. See State v. Doak, 2007 OK CR 3, ¶ 17, 154 P.3d 84, 87 (finding that where possible, statutory amendments should be construed together). The three-tiered registration period within 57 O.S.Supp.2007, § 583(C), works in conjunction with the provisions of 57 O.S.Supp.2007, §§ 582.1–582.5. Both § 582.1 and § 582.2 expressly provide that the assignment of a risk level to a sex offender applies to “a person, who will be subject to the provisions of the Sex Offenders Registration Act.” (emphasis added). Therefore, we construe 57 O.S.Supp.2007, § 583(C) as only applying prospectively. See Starkey v. Oklahoma Dept. of Corrections, 2013 OK 43, ¶¶ 28–32, 305 P.3d 1004, 1015–16 (finding 2007 amendments to Sex Offenders Registration Act were intended...