Three State Supreme Courts Rule on Post-release Issues for Sex Offenders
by Matt Clarke
In six separate opinions, the Supreme Courts of Kansas, Ohio and Colorado ruled on issues related to sex offender registration and probation requirements.
In a trio of decisions handed down on April 22, 2016, the Supreme Court of Kansas held the 2011 amended version of the Kansas Offender Registration Act (KORA) could not be applied retroactively to increase the mandatory registration term of a defendant whose offense was committed prior to the 2011 amendment.
In 2001, Promise D. Redmond pleaded no contest to one count of indecent solicitation of a child 14- to 15-years-old. He was sentenced to life in prison, but the sentence was suspended and he was placed on parole. Under the 2001 version of the KORA he was required to register as a sex offender for ten years.
The amended 2011 KORA required sex offenders to register for 25 years. Redmond stopped registering after ten years, and the state charged him with three counts of violating the 2011 KORA. Redmond moved to dismiss the charges and argued application of the amended 2011 KORA was an unconstitutional ex post facto violation.
The trial court granted the motion and the state appealed. The Kansas Supreme Court affirmed, holding that to retroactively apply the 2011 KORA to increase a mandatory registration period would violate the ex post facto clause. Therefore, Redmond could not be prosecuted for failing to register beyond the ten-year period that applied at the time of his conviction. See: State v. Redmond, 304 Kan. 283, 371 P.3d 900 (Kan. 2016).
In a separate but similar case, a John Doe defendant pleaded guilty to indecent liberties with a minor in 2003. After being notified that his original ten-year registration period had been extended to 25 years by the 2011 KORA, he filed a petition for declaratory judgment seeking a judicial declaration that such a retroactive application would violate the ex post facto clause. The district court granted summary judgment in Doe’s favor and the Kansas Supreme Court affirmed after the state appealed. See: Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (Kan. 2016).
In a third case, Joseph M. Buser pleaded no contest to indecent liberties with a child in 2009 and was sentenced to life in prison; based upon a prior juvenile adjudication, he was ordered to register for life. He appealed on the grounds that the juvenile adjudication could not be used to enhance the registration requirement. The Court of Appeals agreed, but held that Buser must register for 25 years pursuant to the 2011 KORA.
The Kansas Supreme Court reversed, again finding that the 2011 KORA could not be used to retroactively increase the ten-year registration requirement in effect at the time the offense was committed. “Given that Buser committed his crime in 2009, he cannot be subjected to the subsequently enacted 25-year registration period in the 2011 version of KORA,” the Court wrote. See: State v. Buser, 304 Kan. 181, 371 P.3d 886 (Kan. 2016).
However, in a fourth case that was also decided on April 22, 2016, the Kansas Supreme Court held that lifetime registration of sex offenders pursuant to KORA “does not constitute punishment for purposes of applying provisions of the United States Constitution” and Section 9 of the Kansas Constitution Bill of Rights. Any contrary findings in the above three cases were expressly overruled. See: State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127 (Kan. 2016).
In Ohio, the state Supreme Court decided on May 18, 2016 that termination of sex offender supervision provisions of the Adam Walsh Act, 2007 Am.Sub.S.B. No. 10 (effective January 1, 2008) could not be applied retroactively to terminate a sex offender registration requirement that arose under Megan’s Law, 1996 Am.Sub.H.B. No. 180.
Aaron K. Von was convicted in Colorado of sexual assault of a child, a fourth-degree felony, and sexual assault in the third degree, a misdemeanor. He moved to Ohio in 2011 and registered as a sex offender. He later filed a motion to terminate his sex offender registration under the Adam Walsh Act. However, Megan’s Law contained no termination provision.
While awaiting a decision on his motion, Von also moved for a preliminary injunction to prevent the state from changing his classification from tier one to tier three (sexual predator). The trial court granted the preliminary injunction pending a decision on the merits, but ultimately denied Von’s motion to terminate his registration requirements. He appealed.
The Court of Appeals reversed, concluding that the termination provision could be severed from the parts of the Adam Walsh Act that could not be retroactively applied, and directing the trial court to determine Von’s proper tier level because the termination provision only applied to tier one sex offenders. The state sought discretionary review by the Ohio Supreme Court, which was granted.
The Court held that, like the rest of the Adam Walsh Act, the termination provision could not be retroactively applied to a sex offender covered by Megan’s Law. “The registration termination procedure delineated in R.C. 2950.15 does not apply to sex offenders who committed their offenses prior to January 1, 2008,” the Court wrote. The appellate ruling was reversed and the case remanded to the trial court with instructions to determine Von’s proper tier level under Megan’s Law. See: In re Von, 146 Ohio St.3d 448, 2016-Ohio-3020, 57 N.E.3d 1158 (Ohio 2016).
Finally, on May 16, 2016, the en banc Colorado Supreme Court held that an offender’s probation could not be revoked because he refused to answer questions posed during a polygraph exam if his refusal was based on a reasonable fear that providing incriminating information could be used against him in a criminal prosecution.
Bryan Roberson was placed on probation following his conviction for sexual assault of a child. One condition of probation was that he submit to “routine maintenance polygraphs” as part of a sex offender treatment program. When he was asked questions about his use or viewing of child pornography while on probation and whether he had sexual fantasies involving minors, he refused to answer because his attorney had told him his responses could be used against him in a possible future retrial of his case, which was still on appeal.
A complaint was filed seeking to have Roberson’s probation revoked for failure to participate in the treatment program. The court denied the complaint, because “to require Roberson to answer sexual[ly] oriented questions, under the circumstances, violates his Fifth Amendment rights, and his probation cannot be revoked on those grounds.” The state appealed.
The Colorado Supreme Court agreed with the district court that requiring Roberson to answer questions about his use and viewing of child pornography, a felony, would violate the Fifth Amendment. Therefore, his refusal could not justify a probation revocation. The Court rejected the state’s argument that Roberson should have answered the questions and invoked his Fifth Amendment rights at any future trial, since the Fifth Amendment may not be invoked for previously-made statements.
The Supreme Court also noted that this case, involving a probationer with an appeal pending, was very different from one involving a defendant not on probation or parole who refused to answer a polygraph examiner’s questions. In the former case, the prospect of revocation of probation that had already been granted was sufficient compulsion for the Fifth Amendment’s prohibition against self-incrimination to apply.
The Court was less certain about Roberson’s refusal to answer questions regarding sexual fantasies involving minors, as that would not have been admitting to a felony. The Fifth Amendment would only apply if Roberson had a reasonable fear that the polygraph examiner’s questions would elicit an incriminating response.
Therefore, the Supreme Court remanded the case for further proceedings. If the district court determined that Roberson’s fear of incriminating questions was reasonable, then its order denying his probation revocation would be affirmed. If not, the district court must determine in its discretion whether revocation was appropriate under the circumstances of the case. See: In re People v. Roberson, 2016 CO 36, 377 P.3d 1039 (Colo. 2016).