FRY v. STATE ex rel. DEPARTMENT OF CORRECTIONS

2017 OK 77, 404 P.3d 38, 2017 WL 4250659, 2017 Okla. LEXIS 79

• Court: Supreme Court of Oklahoma
• Decided: September 26, 2017
• Docket: Case Number: 114942
• Status: Published

Opinions

REIF, J.:

¶ 1 In October of 2015, Adam Ray Fry (Petitioner) brought a proceeding in the district court of Canadian County for an order to “deregister” as a- sex offender. Petitioner contended he was entitled to this relief based on an earlier order entered by the sentencing judge in his Pottawatomie County criminal case. In that case, Petitioner received a five year deferred sentence based on his plea to a charge of rape by instrumentation. As a consequence of this sentence, Petitioner was originally required to register as a sex offender for life. In October of 2009, however, the sentencing judge granted an “override” of Petitioner’s lifetime registration requirement, .pursuant to 67 O.S.Supp.2008, 582.5(D). The sentencing judge’s override order reduced the period for registration to fifteen years from the completion of his five year deferred sentence.

¶2 This override was granted over the objection of the Pottawatomie County District Attorney who represented the State of Oklahoma at the hearing on Petitioner’s override request. While not participating in the override proceeding, DOC received the override order. -Neither the'District Attorney nor DOC sought relief from the override order in the trial court or bn appeal.

¶ 3 The case at hand was spawned by DOC’s refusal to. follow the override order and its insistence that case law from this Court precludes any retroactive application of the Sex Offenders Registration Act. DQC asserts that this Court has held a sex offender’s registration period is fixed by the law in effect at the,time the offender becomes subject to the Act. . ¡

¶ 4 DOC relies primarily on two cases handed down in 2013—Burk v. State ex rel Department of Corrections, 2013 OK 80, 349 P.3d 545 and Cerniglia v. Oklahoma Department of Corrections, 2013 OK 81, 349 P.3d 542. The Burk ease held the law in effect when the sex offender voluntarily entered Oklahoma to reside governed his registration. The Cemiglia case similarly held the law in effect at the time of sex offender’s conviction controls the period of registration. DOC argues that the íaw-in-effect-rule of these cases implements the prohibition against retroactive application of the Sex Offenders Registration Act pronounced earlier in 2013 in Starkey v. Oklahoma Department of Corrections, 2013 OK 43, 305 P.3d 1004. DOC points out the law in effect at the time of Petitioner’s Pottawatomie County sentence provided for lifetime registration. For the reasons that follow, we reject DOC’s narrow reading of this case law and affirm the trial court’s enforcement of the override order.

¶ 5 The Starkey case did not purport to prohibit the retroactive effect of every provision in the Sex Offenders Registration Act. What the Starkey case held was: “The Oklahoma Constitution prohibits the addition of sanctions imposed on those already convicted before the legislation increasing sanctions and requirements of registration were enacted.” ¶ 78, 305 P.3d at 1030. (Emphasis added). The override remedy provided by 582.5(D), did not add or increase sanctions and requirements of registration. In fact, it did just the opposite.

¶ 6 The Legislature provided override as a remedy to lessen any unintended effects of the newly imposed assessment levels and the attendant periods of registration. More particularly, it gave a way for a sex offender to show “the risk level assessed is not an accurate prediction of the risk the offender poses.” Persons subject to registration could pursue this statutory remedy any time before its repeal on November 1, 2009. As this Court observed in Burk, “the November 1, 2009, amendments eliminating the option to reduce a level assignment do not affect a proceeding already begun prior to the amendments’ effective date.” ¶ 9, 349 P.3d at 545. In the ease at hand, the district court in Pottawatomie County granted the override relief to Petitioner ten days before the Legislature eliminated the override remedy on November 1, 2009.

¶ 7 Equally important is the fact that DOC admits it received the Pottawatomie County override order in 2009. DOC did not. seek relief from that order, either in the district court of Pottawatomie County or on appeal. Even though the District Attorney for Pottawatomie County appeared and represented the interests of the State of Oklahoma, DOC could have asserted the same “real party in interest” status before the .district court of Pottawatomie County or on appeal, as it asserted in the district court of Canadian County. The only reasonable conclusions-that can be drawn from its failure to seek timely relief from the Pottawatomie County order are (1) DOC believed the District Attorney in Pottawatomie County had adequately represented the interests of the State of Oklahoma concerning Petitioner’s . registration requirements and (2) DOC treated the Pottawatomie County order as valid and effective to change Petitioner’s risk level and period of registration. In any event, the override order is a final and binding adjudication of Petitioner’s “requirements of registration,” as provided in 582.5(D).

¶8 In eases like Petitioner’s case, where override relief was timely sought and granted pursuant to 582.5(D), and neither the prosecuting District Attorney nor DOC appealed, or otherwise timely challenged the override order, DOC is required to honor and implement the “requirements of registration” adjudicated in such an order. This override relief is a statutory remedy from Legislatively prescribed registration requirements. As such, it does not offend the prohibition against retroactive application of the Sex Offenders Registration Act as pronounced in the Starkey case* even if it produces ■ an exception to the general rule that sex offenders are subject to the registration requirements in effect at the time they become subject to the Act. Such retroactive deviation is permissible so long as it does not add or increase sanctions or requirements of registration.

APPEAL RETAINED; ORDER GRANTING PETITION FOR DEREGISTRATION AS SEX OFFENDER & REMOVAL FROM SEX OFFENDER REGISTRY AFFIRMED.

CONCUR: GURICH, V.C.J., KAUGER, WATT, EDMONDSON, COLBERT, and REIF, JJ. DISSENT: WINCHESTER and WYRICK, JJ. (by separate writing). DISQUALIFIED: COMBS, C.J.