Opinion
July 20, 2010
MEMORANDUM OF DECISION
FACTS
The defendant, Conrad Hock, was charged with sexual assault in the first degree and criminal trespass in the first degree as a result of events alleged to have occurred on or about August 24, 1989. The defendant's ex-wife complained that on that date, the defendant barged into her trailer, argued with her, grabbed her breasts against her will and forcibly engaged her in sexual intercourse. As a result of plea negotiations, the defendant pled guilty to one count of sexual assault in the third degree. On January 11, 1991, the defendant was sentenced to four years incarceration, execution suspended, and three years probation.
According to department of public safety records, the defendant first registered as a sex offender on April 10, 2000. On April 12, 2000, the defendant moved to have the dissemination of his registration information restricted to law enforcement personnel, which the court granted on April 18, 2000. On December 30, 2005, the defendant filed an application for exemption from sex offender requirements. No record was found indicating what action may have been taken. The defendant filed the present application on June 6, 2008.
DISCUSSION
The state argues in its brief that the law is perfectly clear that this defendant is not eligible for exemption from sex offender registration requirements. He was convicted of a sexual assault in the third degree. The crime for which he stands convicted is classified as a sexually violent offense. General Statutes § 54-250(11). General Statutes § 54-251 provides three specific instances in which a defendant may apply to be exempted from registering as a sex offender. All of the instances address persons who were convicted of offenses against minors or non-violent sexual offenses, as defined by § 54-250. Even so, the exemption does not include all offenses against minors or non-violent sexual offenses. Only if a defendant was convicted of the following three crimes can he apply for exemption from registration: 1) sexual assault in the second degree, if the violation involved intercourse between two persons where the defendant was under the age of nineteen and the complainant was between the ages of thirteen and sixteen, and there was at least a three-year difference in age between the parties at the time of the offense; 2) sexual assault in the fourth degree; and 3) voyeurism. The state also argues that Connecticut's sex offender registration laws are regulatory in nature and not punitive in fact. See Roe v. Office of Adult Probation, 125 F.3d 47 (2d Cir. 1997); Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997), cert. denied, 522 U.S. 1122, 118 S.Ct. 1066, 140 L.Ed.2d 126 (1998).
In Pataki, the court addressed the legality of New York's version of Megan's Law, which was enacted January 21, 1996. Doe v. Pataki, supra, 120 F.3d 1263, 1265. The three defendants who challenged the law and its notification provisions had all been convicted of, and sentenced for, qualifying sex offenses prior to the enactment of the laws. Id. The New York district court considered whether the statutes increased punishment for sex offenses in violation of constitutional ex post facto prohibitions, or whether they were merely regulatory. Id., 1270-71. The Second Circuit noted that "[t]he mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relative incident to a regulation of a present situation . . ." (Emphasis in original.) Id., 1273 n. 4.
In its analysis, the Pataki court applied a two-part test established by the United States Supreme Court. First, the Second Circuit reviewed the legislature's preference for one label or another — regulatory or punitive — as applied to the statutory scheme. Id., 1274-75. The court assessed the stated intent of New York's legislation and concluded that it was non-punitive. Id., 1276-78. The second prong of the test required that the court determine whether the laws were punitive in effect as applied to the defendants. Id., 1278-84. The Second Circuit found that the defendants had not presented "the clearest proof" required to successfully challenge the constitutionality of the statutes. Id., 1284. The defendants were required to register, and notification, as per the laws, was permissible. Id.
Following Pataki, the Second Circuit decided Roe v. Office of Adult Probation, 125 F.3d 47, 48 (2d Cir. 1997), which involved a challenge to a Connecticut state agency's notification policy. The defendant, who was convicted in 1991, prior to the enactment of Connecticut's registration statutes, challenged the ability of the office of adult probation to disseminate registration information. Id., 51-52. The district court ruled that notification provisions of Connecticut's "Megan's Law," as carried out through the probation department, were punitive and thus violated ex post facto prohibitions. Id., 52. The Second Circuit found, contrary to the district court, that "the intent underlying the Policy was regulatory and that any burdens resulting from notification are incidental to those non-punitive purposes," and noted that Roe had "not provided the `clearest proof' that notification pursuant to the Policy constitute[d] punishment in fact." Id., 54-55.
In State v. Kelly, 256 Conn. 23, 86-88, 770 A.2d 908 (2001), the Connecticut Supreme Court reviewed the state's sex offender registration statutes, pursuant to an ex post facto challenge and found the laws constitutional. Alex Kelly committed sexual assault in 1986, prior to the enactment of Connecticut's version of Megan's Law, but he fled the jurisdiction in 1987, and remained at large until 1995. Id., 27-30. He was convicted after trial, and was required to register as a sex offender. Id. The defendant alleged that because the sexual assault occurred before the registration statutes were enacted, they were punitive in fact as applied to him. Id., 90-94. In reaching its conclusion that Connecticut's laws were regulatory and non-punitive in fact, the Connecticut Supreme Court carefully reviewed Doe v. Pataki, and was "persuaded by the reasoning in Doe and . . . adopt[ed] that reasoning in interpreting the registration provision of Connecticut's Megan's Law." Id., 94.
The factors that the Kelly court adopted in assessing the "punitive in fact" claim included: 1) whether the regulatory scheme, in its operation, had traditionally been regarded as punishment; 2) whether the act subjected a defendant to an affirmative disability or restraint; 3) whether the act promoted the traditional aims of punishment; 4) whether the act had a rational connection to a legitimate, non-punitive purpose; and 5) whether the act was excessive with respect to its purpose. Id., 92-93. After applying those factors to the sex offender registration laws, the court held that the statutory scheme was regulatory and not punitive in nature. Id., 94.
The United States Supreme Court utilized the same factors when it decided Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). Two plaintiffs, both of whom had been convicted in 1990 for offenses involving sexual abuse of minors, challenged Alaska's version of Megan's Law and its application to them retroactively. Id., 91-92. When the Court applied the factors to Alaska's statutes and analyzed the effect on the two men, it found that there was no constitutional violation because the legislative intent was regulatory and the effect of the laws was not punitive. Id., 97. Furthermore, the Court remarked in its decision that "[t]he Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences." Id., 103.
Shortly after that ruling, the Connecticut Supreme Court was again confronted with a challenge to § 54-250 et seq. in State v. Waterman, 264 Conn. 484, 825 A.2d 63 (2003). In Waterman, the defendant had been convicted of public indecency and received a suspended sentence. Id., 486. Some weeks after the sentence was imposed, however, the trial court made factual findings that the victims of the offense for which the defendant was convicted were minors, and the court then advised the defendant that he would be required to register as a sex offender. Id., 486-87. Though the challenge focused more on the jurisdiction of the trial court to make said findings and impose the registration requirement after sentencing, the court specifically noted that "the registration requirement of Megan's Law, rather than being part of a criminal judgment of conviction, is, instead, a separate regulatory incident of that judgment." Id., 488-89. The court reviewed Pataki, Kelly and Smith and, citing them with approval, ultimately upheld the trial court's jurisdiction, and the constitutionality of Connecticut's Megan's Law. Id., 492-98.
In the present matter, the defendant argues that the law was not in effect when he was sentenced. Thus, the defendant argues that he was never advised of the requirement by the court, which is mandated by General Statutes § 54-252, prior to the acceptance of his plea. Second, the defendant argues that the legislature deprived him of the opportunity, as a matter of right, to apply to have the requirement terminated after ten years when it enacted Public Acts 1999, No. 99-183. Prior to the enactment of this amendment, the court was required to grant such application, so long as the defendant could show that he did not suffer from some disability that would make him likely to offend again. This amendment, enacted long after his probation had terminated, resulted in depriving the defendant of a very substantial right. Third, the defendant argues that twenty years have lapsed since the offense, and more than fourteen years since he was released from probation. He has dutifully registered since the enactment of the law requiring him to do so. Fourth, the defendant argues that when the court granted his request to limit the dissemination of the registration information, it found that such an order expressly stated that public safety was not an issue with regard to him. Thus, the defendant questions why the continued collection of the information is required for public safety, and if it so not required, the defendant argues that it must be punitive since public safety is the only rationale for the requirement to do so. The defendant concludes that when taken together, the factors of duration and lack of redress, the lack of any advisement, the lapse of time and the finding that the dissemination is not required for public safety become punitive under the Doe/Kelly analysis. The defendant further asserts that since the requirements of § 54-250 et seq. are punitive as applied to him, then the requirement must be stricken as unconstitutional as applied under the ex post facto clause in article one, § 10 of the constitution of the United States.
After reviewing the briefs filed by both the state and the defendant, the court finds that the application of the statute to the defendant does not violate the ex post facto clause. This court adopts the two-pronged analysis established in applicable federal and state case law. First, this court recognizes that Connecticut's lawmakers clearly intended this state's version of Megan's Law to be regulatory in nature, as the courts have repeatedly recognized. Second, to determine if the law is punitive in effect as it pertains to the defendant, the court must use the factors promulgated by the United States Supreme Court and adopted by the Connecticut Supreme Court in State v. Kelly, supra, 256 Conn. 23.
As the state notes, none of the factors raised by the defendant either singularly or collectively provide this court with the clearest proof necessary for a finding that Connecticut's Megan's Laws are unconstitutional. Indeed, none of the defendant's assertions address the factors that have been relied upon by the Second Circuit and the Connecticut Supreme Court for over a decade to determine if a law is punitive in fact. Moreover, when this court considers the applicable and appropriate factors, it finds that Megan's Law is non-punitive in effect as applied to the defendant, Mr. Hock.
First, the sex offender registration imposes no affirmative disability or restraint upon this defendant. It does not restrict where he can live. It merely requires him to notify law enforcement officials of where he resides. Second, registration is certainly not something that has historically been regarded as punishment. Connecticut's version of Megan's Law has only been in effect for fifteen years, whereas the penal code has been in effect for centuries, and the traditional means of punishment included incarceration, fines and even death. Third, the operation of sex offender registration is not something that promotes the traditional aims of punishment — retribution or deterrence. To the contrary, the aim of requiring sex offenders to register is to promote public safety and to assist law enforcement. Fourth, the statutory scheme regarding sex offender registration is rationally connected to the legitimate, non-punitive aims stated above. Finally, it is not excessive, as the laws provide for a "sliding scale" of registration based on the nature of the offense and the type of victim. It not excessive merely because this defendant's victim has passed away and the dissemination of the information is restricted. This defendant was convicted of forcible sexual contact with his ex-wife, not an incidental touching. Lifetime registration is appropriate for individuals who subject others to sexual contact against their will. It is appropriate that law enforcement know of violent sex offenders' locations.
CONCLUSION
For all of the foregoing reasons, the court denies the defendant's application for exemption from the sex offender registration and also finds that Connecticut's Megan's Law is constitutional as applied to this defendant.