Wolf v. State

• Decision Date: 28 November 2012
• Docket Number: No. C–2011–1035.,C–2011–1035.
• Citation: 292 P.3d 512
• Parties: Angela Michelle WOLF, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

292 P.3d 512

Angela Michelle WOLF, Petitioner,

v.The STATE of Oklahoma, Respondent.

No. C–2011–1035.

Court of Criminal Appeals of Oklahoma.

Nov. 28, 2012.

An Appeal from the District Court of Garfield County; the Honorable Dennis W. Hladik, District Judge.

John Greg Camp, Attorney at Law, Enid, Oklahoma, attorney for defendant at trial.

Tallena C. McMichael, Assistant District Attorney, Garfield County District Attorney's Office, Enid, Oklahoma, attorney for State at trial.

Lee Ann Jones Peters, Appellate Defense Counsel, Oklahoma Indigent Defense System, Norman, Oklahoma, attorney for petitioner on appeal.

E. Scott Pruitt, Attorney General Of Oklahoma, Jared Aden Looper, Assistant Attorney General, Oklahoma City, Oklahoma, attorneys for respondent on appeal.

SUMMARY OPINION

SMITH, Judge.

¶ 1 Angela Michelle Wolf pled guilty to five counts of Unlawful Purchase of Pseudoephedrine While Subject to Oklahoma Methamphetamine Offender Registry Act in violation of 63 O.S.Supp.2010, § 2–701(B), after one former felony conviction, in the District Court of Garfield County, Case No. CF–2011–405. ¹ In accordance with a negotiated plea the Honorable Dennis W. Hladik sentenced Wolf to fourteen (14) years imprisonment on each count, to run concurrently with one another and with Wolf's sentence in Garfield County Case No. CF–2005–457. Wolf filed a timely motion to withdraw her plea, which was denied after a hearing on November 21, 2011. Wolf filed a Petition for Writ of Certiorari in this Court on March 13, 2012. This Court directed the State to file a response, and that response was filed on June 11, 2012.

¶ 2 Wolf raises one proposition of error in support of her petition:

I. In order to be constitutional, the offense of unlawfully purchasing pseudophedrine while subject to the methamphetamine registry act must be construed as having a mens rea component, and here, the factual basis was inadequate to establish such mens rea. The trial court abused its discretion by refusing to allow Petitioner to withdraw her plea of guilty when the court learned that Ms. Wolf was completely unaware that she was subject to the registry and prohibited from buying psuedophederine.

After thorough consideration of the evidence before us, including the original record, briefs, transcripts and evidence, we reverse.

¶ 3 Wolf was subject to the Methamphetamine Registry Act. 63 O.S.Supp.2010 § 2–701(B). The Act establishes a registry of persons convicted of various methamphetamine crimes, and applies to all persons convicted after November 1, 2010, and all persons on probation for any specified offense as of that date. Upon conviction, the district court clerk is required to send the name of the offender to the Oklahoma State Bureau of Narcotics and Dangerous Drugs (OSBNDD), which maintains the registry. A person subject to the registry is prohibited from buying pseudoephedrine. Every pharmacist or other person who sells, manufactures or distributes pseudoephedrine must check the registry at each purchase, and deny the sale to any person on the list. Wolf claims that, to be constitutional, the Act must provide notice to the persons who are subject to criminal prosecution under its provisions. The statute does not provide such notice, and violates the Due Process Clause. U.S. Const, Amend. XIV.

¶ 4 The State argues, first, that this issue was not properly raised in Wolf's motion to withdraw her plea, and has been waived. This is not correct. Wolf claimed in her motion to withdraw that her plea was not knowing and voluntary, and entered without understanding, because she did not know she was not allowed to buy pseudoephedrine as a result of the registry statute. In lay terms, this is exactly what she claims on appeal—that the statute is unconstitutional as applied to her because she did not know she had committed a crime when she engaged in otherwise lawful activity. Although Wolf's pro se language in her Motion to Withdraw was inartful, the issue is properly before the Court.

¶ 5 The State does not contest Wolf's claim that she did not know she was committing a crime by purchasing pseudoephedrine—an action which was otherwise legal.² The State argues, rather, that § 2–701(B) is a strict liability crime and there is no legal requirement that a person know she has violated the statute or is subject to criminal penalties—the same argument made by the prosecutor at the hearing on Wolf's motion to withdraw her plea. This interpretation of the law fails to take into account the Due Process Clause and United States Supreme Court case law. As we discuss below, when otherwise lawful conduct is criminalized, the criminal statute must provide sufficient notice for a person to know she is committing a crime. Section 2–701 contains no such provisions. There is a distinction between knowledge that one is subject to criminal penalties, and intent to commit a crime. A strict liability crime does not require any intent to commit a crime. However, due process requires notice that specific conduct is considered a criminal offense.

¶ 6 Subsection E of § 2–701 explains how OSBNDD is notified when persons are subject to the registry. However, Subsection E makes no provision for anyone to notify OSBNDD which persons currently serving probation, like Wolf, are subject to the registry. Wholly absent from the statute is any provision giving notice to a person in Wolf's position—someone on probation at the time the statute went into effect—that she is subject to the registry and thus subject to criminal penalties. In fact, the statute does not provide that court clerks notify any convicted person that their name has been submitted to the OSBNDD, or that they are subject to the registry. These omissions are the crux of Wolf's claim, and the basis of our ruling.

¶ 7 Wolf supports her Due Process claim with two Supreme Court cases, Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), and Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). Lambert held that a registration law which carried criminal penalties, but gave no notice to persons subject to the registration requirement, and required no proof of actual knowledge of the duty to register, violated due process. Lambert, 355 U.S. at 229, 78 S.Ct. at 243.Liparota concerned a statute prohibiting acquisition or possession of food stamps in a manner not authorized by statute or regulations, and including a criminal penalty. The Court held that due process required a showing that the defendant knew his conduct to be unauthorized: “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Liparota, 471 U.S. at 425, 105 S.Ct. at 2088, quoting Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952).Liparota noted that construing the statute to require knowledge of the prohibited act “is particularly appropriate where, as here, to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct.” Liparota, 471 U.S. at 426, 105 S.Ct. at 2088.

¶ 8 The State argues that Lambert does not apply, because it involved a statute requiring only registration. The State argues that, because Lambert involved a status crime—failure to register—and § 2–701 prohibits the affirmative act of buying pseudoephedrine after certain criminal convictions, there is no need for an intent requirement. Lambert does not support this claim. Whether the offense is purely a status crime or requires an action, the notice requirement remains. The Supreme Court framed this issue: “We must assume that appellant had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this defense which was refused. The question is whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.” Lambert, 355 U.S. at 227, 78 S.Ct. at 242.Section 2–701 does not require that the felon subject to the registry register; for persons convicted after November 1, 2010, the district court clerk is responsible for informing the OSBNDD that the person is subject to the registry and the OSBNDD actually puts the name on the register, while for persons serving probation, etc., on that date, the statute fails to name any person or entity who is responsible for ensuring that name is put on the registry. Nobody is responsible for notifying the convicted felon that she is subject to the registry.

¶ 9 The State also relies on language in Lambert noting that the Legislature may criminalize conduct alone, without regard to the intent of the perpetrator. However, in that same passage Lambert goes on to distinguish the passive conduct at issue there—failure to register—from “the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.” Lambert, 355 U.S. at 228, 78 S.Ct. at 243 (emphasis added). Whether or not intent is required for the criminal conduct, it is essential that the person should be alerted that she is committing a crime. Furthermore, in Liparota, the Supreme Court discussed strict liability “public welfare” offenses, which require no intent, but involve forbidden acts or omissions. The Court noted that, in most instances, Congress “rendered criminal a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety.” Liparota, 471 U.S. at 432–33, 105 S.Ct. at 2092.

¶ 10 Taken together, Lambert and Liparota suggest that, while a legislature may criminalize conduct...