Duane E. Roberts v. State of Mississippi

• Court: Court of Appeals of Mississippi
• Decided: May 28, 2019
• Docket: 2018-CA-00212-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-00212-COA

DUANE E. ROBERTS A/K/A DUANE ROBERTS APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/12/2018 TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JOE S. DEATON III MATTHEW E. RUTHERFORD ATTORNEYS FOR APPELLEE: LORA E. HUNTER ANTHONY L. SCHMIDT JR. NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: AFFIRMED - 05/28/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.

C. WILSON, J., FOR THE COURT:

¶1. Duane Roberts appeals the Rankin County Circuit Court’s denial of his petition for

relief from the duty to register as a sex offender. Finding no error, we affirm.

FACTS

¶2. In 1985, a circuit court jury convicted Roberts of sexual battery of a child under

twelve years old pursuant to Mississippi Code Annotated section 97-3-95 (Supp. 1984).

Roberts was sentenced to serve twelve years in the custody of the Mississippi Department

of Corrections. Roberts filed a direct appeal, and the Mississippi Supreme Court affirmed

Roberts’s conviction. Roberts v. State, 502 So. 2d 625 (Miss. 1987). In January 1987, Roberts began serving his twelve-year sentence. After serving approximately five and a half

years, Roberts was released for good behavior in June 1992.

¶3. In March 2006, as a result of new legislation, the State notified Roberts that he had

to register as a sex offender for his 1985 sexual battery conviction. Since that time, Roberts

has maintained his registration as a sex offender with the Mississippi Department of Public

Safety.

¶4. In July 2017, Roberts filed a petition for relief from the duty to register as a sex

offender. Following a hearing, the circuit court denied Roberts’s petition for relief. Roberts

timely filed a notice of appeal.

STANDARD OF REVIEW

¶5. “An appellate court reviews questions of law under ‘a de novo standard of review and

will only reverse for an erroneous interpretation or application of law.’” Williams v. State,

161 So. 3d 1124, 1126 (¶7) (Miss. Ct. App. 2015) (quoting Rice v. Merkich, 34 So. 3d 555,

557 (¶7) (Miss. 2010)). Appellate courts also review the interpretation of statutes de novo.

Tillis v. State, 43 So. 3d 1127, 1131 (¶9) (Miss. 2010).

ANALYSIS

¶6. Roberts asserts that the circuit court erred in denying his petition for relief from the

duty to register as a sex offender pursuant to Mississippi Code Annotated section 45-33-47

(Rev. 2015). Roberts raises two related issues: (1) whether the State had a duty to notify him

of his obligation to register as a sex offender; and (2) whether the doctrine of laches estops

the State from applying section 45-33-47(2)(f) against him because the State failed to notify

2 him of the duty to register as a sex offender in a timely manner. The State contends that

Roberts did not raise these two issues in circuit court and that this Court should not consider

them. We agree. “One of the most fundamental and long established rules of law in

Mississippi is that [an appellate court] will not review matters on appeal that were not raised

at the trial court level.” Estate of Myers v. Myers, 498 So. 2d 376, 378 (Miss. 1986).

Because Roberts did not raise the issues of a purported duty to notify and laches in the circuit

court, the issues are procedurally barred from consideration, and we will not address them.

See Lewis v. Forest Family Practice Clinic P.A., 124 So. 3d 654, 658 (¶16) (Miss. 2013).

¶7. We will, however, address Roberts’s assertion that the circuit court erred in denying

his petition for relief. In asserting that the circuit court erred, Roberts “adopts and

incorporates by reference” his underlying petition for relief from the duty to register as a sex

offender and supporting memorandum. In his petition for relief and memorandum, Roberts

contended that he qualifies for relief from section 45-33-47(2)(d)’s lifetime sex-offender-

registration requirement because he “[m]eets all of the [r]equired [e]lements” of section 45-

33-47(3) and Mississippi Administrative Code section 31-2:12.24 (Rev. 2013).1 We find that

1 Section 45-33-47 sets forth the requirements for relief from sex-offender registration. Specifically, section 45-33-47(3) sets forth the standards for the trial court to follow in deciding petitions for relief. Mississippi Administrative Code section 31-2:12.24 provides that:

The offender may petition the court of the sentencing jurisdiction for relief from the duty to register as set forth in Miss. Code Ann. § 45-33-47 if the offender has maintained registration in Mississippi for not less than ten (10) years from the most recent date of occurrence of one of the following:

a. release from prison,

3 Roberts is subject to lifetime registration under section 45-33-47(2)(f) rather than section 45-

33-47(2)(d), so we disagree.

¶8. The Mississippi Sex Offenders Registration Law requires “[a]ny person having a

permanent or temporary residence in this state or who is employed or attending school in this

state who has been convicted of a registrable offense in this state . . . [to] register with the

responsible agency and the Mississippi Department of Public Safety.” Miss. Code Ann.

§ 45-33-25(1)(a) (Rev. 2015). “Mississippi Code Annotated section 45-33-47 provides the

only relief from [sex-offender] registration.” Williams, 161 So. 3d at 1128 (¶21). “Section

45-33-47 separates registrable offenses into distinctive tiers, which details exemptions that

each offense may qualify for, if any.” Id.

¶9. Roberts contends that his conviction, sexual battery of a child under twelve years old,

is a “tier three” offense and that he is eligible for relief from his duty to register under section

45-33-47(2)(d). Roberts is correct that sexual battery is typically a “tier three” offense under

section 45-33-47(2)(d). But when a sexual battery conviction involves an offender who is

twenty-one years of age or older and a victim who is fourteen years of age or younger,

section 45-33-47(2)(f), rather than section 45-33-47(2)(d), is applicable. Section 45-33-

b. placement on parole, or

c. supervised release or probation.

(Emphasis added). To the extent that Roberts contends Mississippi Administrative Code section 31-2:12.24 only requires him to register for ten years prior to petitioning the circuit court for relief from the duty to register, Roberts is incorrect. And to the extent Mississippi Administrative Code section 31-2:12.24 conflicts with Mississippi Code Annotated section 45-33-47, section 45-33-47 controls.

4 47(2)(f) provides:

An offender, twenty-one (21) years of age or older, who is convicted of any offense where the victim was fourteen (14) years of age or younger shall be subject to lifetime registration and shall not be relieved of the duty to register.

(Emphasis added).

¶10. A jury convicted Roberts of sexual battery of a child under twelve years old. At the

time of the crime, Roberts was at least twenty-one years old. Accordingly, section 45-33-

47(2)(f) applies, and Roberts does not qualify for relief from his lifetime duty to register as

a sex offender. We therefore affirm the circuit court’s denial of Roberts’s petition for relief

from the duty to register as a sex offender.

¶11. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR.