FRY v. STATE ex rel. DEPARTMENT OF CORRECTIONS
2017 OK 77
Case Number: 114942
Decided: 09/26/2017
THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2017 OK 77, __ P.3d __
ADAM RAY FRY, Petitioner/Appellee,
v.
STATE OF OKLAHOMA ex rel. DEPARTMENT OF CORRECTIONS, Respondent/Appellant.
ON APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY,
STATE OF OKLAHOMA
HONORABLE GARY E. MILLER, TRIAL JUDGE
¶0 In 2002, Petitioner received a five year deferred sentence for rape by instrumentation from the district court in Pottawatomie County. Upon completion of this sentence in 2007, the Oklahoma Department of Corrections (DOC) informed Petitioner he would have a lifetime sex offender registration requirement. In October of 2009, the sentencing judge granted an "override" of Petitioner's lifetime registration pursuant to 57 O.S. Supp.2008, § 582.5(D). This override reduced the period of registration to fifteen years from the date of completion of his sentence. Shortly thereafter, § 582.5(D) was repealed, effective November 1, 2009. While not participating in the Pottawatomie County proceeding, DOC received the override order and did not seek relief therefrom either in the district court or on appeal. In October of 2015, Petitioner filed a petition seeking an order for deregistration because DOC would not honor the Pottawatomie County override order. Petitioner sought this relief from the district court in Canadian County where he was residing. Over the objection of DOC, the district court in Canadian County enforced the Pottawatomie County override order and ordered that Petitioner be removed from the Oklahoma Sex Offender Registry. DOC appealed and Petitioner asked this Court to retain this appeal.
APPEAL RETAINED; ORDER GRANTING PETITION FOR DEREGISTRATION
AS SEX OFFENDER & REMOVAL FROM SEX OFFENDER REGISTRY
AFFIRMED.
Michael A. Risely, MICHAEL A. RISELY, ATTORNEY & COUNSELOR AT LAW PLLC, Oklahoma CIty, Oklahoma, for Petitoner/Appellee,
Margie Weaver, Assistant General counsel, OKLAHOMA DEPARTMENT OF CORRECTIONS, Oklahoma City, Oklahoma, for Respondent/Appellant.
¶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 57 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 on 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. DOC 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 case held the law in effect when the sex offender voluntarily entered Oklahoma to reside governed his registration. The Cerniglia case similarly held the law in effect at the time of sex offender's conviction controls the period of registration. DOC argues that the law-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 ___. (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 ___. In the case 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 cases 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.
Wyrick, J., with whom Winchester, J., joins, dissenting:
¶1 We have previously - - and repeatedly - - held that sex offenders are subject to the version of Oklahoma's Sex Offender Registration Act1 (SORA) in effect on the date the offender became subject to the Act.2 Because he committed his sex crime in Oklahoma, Fry became subject to SORA upon the date of his 2002 conviction for rape by instrumentation.3 The version of SORA in effect at that time, 57 O.S.Supp.2002 § 584(H)(2), categorized Fry as an "aggravated sex offender" and required that he register as a sex offender for life. Indeed, under all versions of SORA in effect from 2002 to present, Fry qualifies as an "aggravated sex offender" who must register for life.4 Because the majority allows Fry to deregister despite his aggravated sex offender status, I respectfully dissent.
¶2 Fry's case jumped track when DOC assigned Fry a "risk level" pursuant to a risk level system that did not exist in the 2002 version of SORA, and strayed further afield when a district court subsequently reduced that risk level pursuant to a mechanism that also did not exist in the 2002 version of SORA.5 Finally, the district court here granted Fry's petition to deregister altogether despite his being an aggravated sex offender subject to lifetime registration under the 2002 version of SORA - - and every version since.6 But instead of correcting these missteps, the majority countenances them by creating an exception to our well-settled rule regarding which version of SORA governs an offender's registration obligations. After today, the version of SORA in effect on the date the offender becomes subject to the Act governs his or her registration obligations unless a later version is more favorable to the sex offender.7 "[D]eviation" from our normal rule "is permissible," we say, "so long as it does not add or increase sanctions or requirements of registration."8 And so deviate we do.
¶3 This "heads the sex offender wins, tails the State loses" approach is justified by neither notions of retroactivity nor the doctrine of preclusion. First, we have repeatedly held that the Legislature did not intend for the 2007 level system to apply retroactively.9 Those prior holdings were correct; there is a presumption against the retroactive application of new laws that is only overcome by express legislative declaration of retroactivity.10 As we have previously held, the Legislature made no such declaration with regard to the level system.11 The majority offers nothing- -nothing- -to explain what has changed between then and now that would justify this new conclusion that the 2007 level system applies retroactively.
¶ 4 The only possible explanation is that the majority believes the Ex Post Facto Clause somehow requires retroactivity.12 It doesn't. The Ex Post Facto Clause prohibits the retroactive application of laws that increase punishment;13 it does not concomitantly authorize or demand the retroactive application of laws that decrease punishment. Thus, when the Legislature enacts a law that either does not punish or decreases punishment, the Legislature has the discretion to either require, or not require, the retroactive application of that law. There simply is no constitutional basis for overriding the Legislature's decision to forego retroactive application of the level system.
¶5 Second, because no court has previously squarely addressed Fry's aggravated sex offender status, we are not precluded from now determining that Fry is an aggravated sex offender and thus subject to lifetime registration. The 2009 level-reduction order never mentions Fry's aggravated status, a fact recognized by the 2016 deregistration order presently on appeal,14 and the deregistration order likewise fails to account for Fry's aggravated status in granting his petition to deregister. The fact that no court has ever directly passed on the issue of Fry's aggravated status and its mandatory lifetime registration is not surprising given that no law at any time has authorized the reduction or expunction of aggravated sex-offender status. At most, the level-override procedure in 57 O.S.Supp.2007 § 582.5(D) allowed courts to reduce a risk level assignment. But an aggravated classification is not a risk level,15 nor is the power to reduce a risk level the same as the power to set registration obligations.16 Registration obligations are determined by statute,17 and for as long as those statutes have recognized the concept of an "aggravated sex offender," the persons classified as such have been required to register for life.18 Fry's aggravated offender status is thus not a "thing adjudicated." DOC should therefore be permitted to raise Fry's aggravated status and its lifetime registration requirement as a basis for opposing Fry's deregistration request.
¶6 Given all of this, Fry's case should be resolved like Butler v. Jones ex rel. State ex rel. Oklahoma Department of Corrections.19 In Butler, the offender pleaded guilty to two counts of sexual abuse of a minor and received two five-year deferred sentences.20 As a result of his plea to an aggravated sex offense, the offender was also required to register under SORA for life.21 Ten years later, the district court entered an order purporting to expunge any record of the offender's guilty plea pursuant to a procedure outlined in 22 O.S. § 991c.22 The Legislature, however, never intended the expunction process in section 991c to apply to sex offenders and, as such, explicitly forbade such application in subsection (G) of that statute. Nevertheless, the offender then sought to use his unlawful expunction order to enjoin the DOC from requiring him to register.23 The district court granted the injunction and, on appeal, we explained the following:
[The law in effect at the time of his plea] required a person like Butler who received "any probationary term" for a crime provided for in 10 O.S., § 7115, to be designated an "aggravated sex offender" and register under SORA for his or her lifetime. Even if deferred sentencing of a sex offender and the subsequent expungement of the offender's criminal records were lawful, which it is not and was not, this law is clear, an aggravated sex offender must register under SORA for his or her lifetime. This law was in place prior to Butler's plea and controls his SORA registration.24
In conclusion, we said that the district court "gave deference to an unlawful expungement over valid law requiring Butler to register under SORA for his lifetime."25 But instead of perpetuating that error to the benefit of the individual in front of us, we chose to correct it, and in doing so we specifically noted our rule that offenders must register in accordance with the version of SORA in effect when they become subject to the act - - even though doing so resulted in a less favorable outcome for the offender.
¶7 So, what about our attitude toward aggravated sex offenders has changed in the four years since Butler? Perhaps the majority disagrees with the Legislature's determination that Fry's sex crime - - being twenty and engaging in sexual activity with his fifteen-year-old girlfriend - - warrants lifetime registration. Or perhaps there is some sympathy for Fry because his attorney failed to inform him that his guilty plea would trigger the lifetime registration requirements. None of this, however, justifies the creation of a new rule that, if applied to this aggravated sex offense, must also be applied to all others, a category of stomach-turning sex crimes that includes:
Sexual child abuse;26
Child sexual exploitation, including child prostitution and the creation of child pornography;27
Rape by an adult of a child under fourteen;28
Rape of a mentally-ill or incompetent person;29
Rape accomplished by means of force or violence;30 and
Forcible sodomy.31
Had Fry earned his "aggravated" status through one of these offenses, I suspect we would be less sympathetic to his petition. I respectfully dissent.
Citationizer© Summary of Documents Citing This Document
| Cite |
Name |
Level |
| None Found. |
Citationizer: Table of Authority
| Cite |
Name |
Level |
| Oklahoma Court of Criminal Appeals Cases |
| | Cite | Name | Level |
| | 1982 OK CR 115, 648 P.2d 1271, | SPITZNAS v. STATE | Discussed |
| Oklahoma Supreme Court Cases |
| | Cite | Name | Level |
| | 1993 OK 166, 867 P.2d 451, 65 OBJ 23, | Houck v. Hold Oil Corp. | Discussed |
| | 2001 OK 114, 37 P.3d 890, 72 OBJ 3688, | BARNHILL v. MULTIPLE INJ. TRUST FUND | Discussed |
| | 2003 OK 4, 64 P.3d 1093, | DOLESE BROS. CO. v. STATE EX REL. OKLAHOMA TAX COMM. | Discussed |
| | 2013 OK 43, 305 P.3d 1004, | STARKEY v. OKLAHOMA DEPARTMENT OF CORRECTIONS | Discussed at Length |
| | 2013 OK 71, 349 P.3d 531, | HENDRICKS v. JONES | Discussed |
| | 2013 OK 72, 349 P.3d 537, | BOLLIN v. JONES | Discussed |
| | 2013 OK 80, 349 P.3d 545, | BURK v. STATE ex rel. DEPT. OF CORRECTIONS | Discussed at Length |
| | 2013 OK 81, 349 P.3d 542, | CERNIGLIA v. OKLAHOMA DEPT. OF CORRECTIONS | Discussed at Length |
| | 2013 OK 89, 313 P.3d 926, | OSBURN v. OKLAHOMA DEPT. OF CORRECTIONS | Discussed at Length |
| | 2013 OK 97, 315 P.3d 386, | LUSTER v. STATE ex rel. DEPT. OF CORRECTIONS | Discussed |
| | 2013 OK 105, 321 P.3d 161, | BUTLER v. JONES ex rel. STATE ex rel. DEPT. OF CORRECTIONS | Discussed at Length |
| | 1911 OK 264, 116 P. 777, 29 Okla. 325, | GOOD v. KEEL | Discussed |
| Title 10. Children |
| | Cite | Name | Level |
| | 10 O.S. 7115, | Renumbered as 21 O.S. § 843.5 by Laws 2009, HB 2028, c. 233, § 207, emerg. eff. May 21, 2009 | Cited |
| Title 21. Crimes and Punishments |
| | Cite | Name | Level |
| | 21 O.S. 888, 21 O.S. 888, | Forcible Sodomy | Cited |
| | 21 O.S. 1114, | Rape in First Degree - Second Degree | Cited |
| Title 22. Criminal Procedure |
| | Cite | Name | Level |
| | 22 O.S. 991c, | Deferred Sentence | Cited |
| Title 57. Prisons and Reformatories |
| | Cite | Name | Level |
| | 57 O.S. 583, | Procedure for Registration | Discussed |
| | 57 O.S. 582.5, | Sex Offender Level Assignment Committee | Discussed at Length |
| | 57 O.S. 581, | Short Title | Cited |
| | 57 O.S. 584, | Information Required on Registration - Form - Notice of Address Change - Maintenance of Files - Availability | Discussed at Length |