State v. Worm

• Decision Date: 28 May 2004
• Docket Number: No. S-02-1506.,S-02-1506.
• Citation: 268 Neb. 74,680 N.W.2d 151
• Parties: STATE of Nebraska, appellee, v. James R. WORM, appellant.
• Court: Nebraska Supreme Court

680 N.W.2d 151

268 Neb. 74

STATE of Nebraska, appellee, v. James R. WORM, appellant.

No. S-02-1506.

Supreme Court of Nebraska.

May 28, 2004.

Dennis R. Keefe, Lancaster County Public Defender, and Shawn Elliott for appellant.

Jon Bruning, Attorney General, Mark D. Raffety, and Jeffrey J. Lux for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

I. INTRODUCTION

James R. Worm appeals his sentence for attempted first degree sexual assault on a child and the district court's finding that he was subject to the amended provisions of Nebraska's Sex Offender Registration Act (Act), Neb.Rev.Stat. §§ 29-4001 to 29-4013 (Cum.Supp.2002). The court determined that Worm had committed an aggravated offense under an amendment that was not a part of the Act when the offense occurred. Worm contends that the court's finding violated the ex post facto clause and that he was denied procedural due process. We affirm.

II. BACKGROUND

In April 2002, the State filed an information against Worm, charging him with first degree sexual assault on a child, a Class II felony. The victim was the 7-year-old daughter of the woman that Worm was then dating. The offense occurred on March 29, 2002.

In August, under a plea agreement, the State amended the information to charge Worm with attempted first degree sexual assault on a child, a Class III felony. At the hearing, the court informed Worm of the factual basis for the charge and the possible imprisonment terms, fines, and collateral consequences of a plea of guilty, including that he would be subject to the Act's terms and conditions. Worm pleaded guilty, and the court accepted his plea. Worm was also committed to the Lincoln Regional Center for psychiatric observation and treatment not to exceed 60 days.

In November 2002, after the 2002 amendments were in effect, Worm appeared for sentencing. Worm argued that the offense had occurred before the Act was substantively changed by the April 2002 amendments, which became effective July 20, 2002, see 2002 Neb. Laws, L.B. 564, and that the amended provisions should not be applied retroactively. The hearing was continued on this issue until December 13. When the hearing reconvened, the court determined the law's purpose was regulatory rather than punitive and that, therefore, the amendment was applicable to Worm. Also, the court found that Worm had committed an aggravated offense under § 29-4005(4)(a)(ii), but that the evidence did not show he was a sexually violent predator. The court informed Worm that because he had committed an aggravated offense, he must register for life, and explained his duties under the Act. The court sentenced him to 8 to 12 years' imprisonment, with credit given for time served.

III. ASSIGNMENTS OF ERROR

Worm assigns that the district court erred in (1) determining that he had committed an aggravated offense under the amended Act in violation of the Ex Post Facto Clauses of the Nebraska and federal Constitutions, (2) determining that he had committed an aggravated offense under the amended Act without affording him procedural due process, and (3) imposing an excessive sentence.

IV. STANDARD OF REVIEW

Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the court below. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003). A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality. State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002).

Sentences within statutory limits will be disturbed by an appellate court only if the sentence complained of was an abuse of judicial discretion. State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004).

V. ANALYSIS

In April 2002, the Nebraska Legislature amended the Act to bring it in compliance with the federal law. The 1996 original Act required a person convicted of an enumerated sex offense, or its equivalent in another jurisdiction, to register with the Nebraska State Patrol's sex offender registry. Under this Act, the offender had to verify that registration on an annual basis for a period of 10 years after his or her release from a correctional facility or other institution, or after discharge from probation, parole, or supervised release. See §§ 29-4003 to 29-4005 (Cum.Supp.2000).

In addition, the amendments added new sex offenses, aggravated offenses and repeat offenses, which require the offender to verify his or her registration annually. §§ 29-4003 and 29-4005(2) (Cum.Supp. 2002). An aggravated offense is defined as "any registrable offense ... which involves the penetration of (i) a victim age twelve years or more through the use of force or the threat of serious violence or (ii) a victim under the age of twelve years." § 29-4005(4)(a). The amendments require the sentencing court to make the finding of an aggravated or repeat offense as part of the sentencing order. § 29-4005(2).

The amendments also require an offender to provide his or her place of vocation and any school which he or she attends in addition to the previous requirement of providing the offender's address and place of employment. 2002 Neb. Laws, L.B. 564. Under both versions, the Act is retroactive to defendants convicted of or pleading guilty to most registrable offenses on or before January 1, 1997. Id.

The amendments, however, did not substantively change the sections concerning community notification. The Nebraska State Patrol's registration and community notification division is responsible for assigning a notification level after an offender initially registers. The assigned notification corresponds to the offender's assessed recidivism risk, which can be assessed as low, moderate, or high. See § 29-4013(2). If the risk is low, law enforcement officials who are likely to encounter the offender are notified of the registry information. § 29-4013(2)(c)(i). If the recidivism risk is moderate, schools, daycare centers, and youth and religious organizations are additionally notified. § 29-4013(2)(c)(ii). If the recidivism risk is high, individuals likely to encounter the offender must also be notified, in addition to those notified for low and moderate notification levels. § 29-4013(2)(c)(iii). If a risk assessment indicates that public notification is warranted, it can be accomplished by direct contact, news releases, or a method using a telephone system, including an electronic database. Id. See, also, 272 Neb. Admin. Code, ch. 19, § 013.06 (2003). The State Patrol maintains a public Web site, which disseminates specified information about offenders only if they are assigned a high-risk notification level.

1. RIPENESS

(a) Registration Provisions

The State argues that Worm's constitutional challenges are not properly before this court because the Act's requirements are collateral to the criminal conviction. The State relies on two cases in which we held that the registration provisions were collateral to the defendant's conviction. See State v. Torres, 254 Neb. 91, 574 N.W.2d 153 (1998), and State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (2002). Worm, however, contends that his constitutional challenges to the Act are properly before this court, because after the Act was amended, the sentencing court had an affirmative duty to determine whether an aggravated offense had occurred, thus triggering a lifetime registration requirement.

In Torres, we held that a defendant who was subject to the registration requirements lacked standing to challenge the Act in a direct appeal from the underlying conviction because the Act's registration requirements were separate and collateral to the sexual offense that had triggered the requirements. We held that "the district court's order did not address the [Act's] requirements; rather, the [Act's] registration requirements arose solely and independently by the terms of the [A]ct itself only after Torres' conviction." (Emphasis in original). 254 Neb. at 95, 574 N.W.2d at 155.

Torres is distinguishable in two respects. First, the defendant in Torres argued that the Act constituted an ex post facto law because it potentially increased his sentence by imposing an additional penalty if he failed to register. He did not argue that the registration requirements themselves violated the ex post facto clause as retroactive punishment.

Second, unlike the 10-year registration requirement for the registrable offense in Torres, the lifetime registration requirement for an aggravated offense does not arise solely and independently from the defendant's conviction. Rather, the amendments require the court, as part of the sentence, to determine if the defendant committed an aggravated offense. See § 29-4005(2). As such, the court's finding that Worm committed an aggravated offense was part of the court's judgment. See People v. Hernandez, 93 N.Y.2d 261, 711 N.E.2d 972, 689 N.Y.S.2d 695 (1999).

Neither is Schneider controlling. In Schneider, this court determined that a guilty plea was not involuntary or unintelligent because the trial court failed to inform the defendant of the Act's requirements before accepting his plea. We relied on Torres in concluding that the requirements were a collateral consequence of the defendant's plea and that it had no direct effect on the range of the defendant's possible sentences or incarceration periods. Schneider, supra.

Ripeness, however, was not an issue in that case. We specifically declined to use the intent-effects test for analyzing the penal nature of the statutory scheme because the defendant had not raised a double jeopardy or ex post facto challenge. Id.

Thus, we determine that the registration requirement for an offender convicted of an aggravated offense under the Act's amended provisions is part of the sentencing court's judgment for purposes of filing an appeal. Worm's...