Opinion
No. IN-07-03-0827, ID NO. 0703000027.
Additional Submissions: September 10, 2007.
Decided: October 25, 2007.
Non-Jury Trial — August 2, 2007, Decision after Non-Jury Trial.
Stuart E. Sklut, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, attorney for State of Delaware.
Raymond M. Radulski, Esquire, Wilmington, Delaware, attorney for defendant.
MEMORANDUM OPINION
The defendant, Stacy Duker, is charged with failure to properly report as a sex offender. The case against him was heard non-jury as the facts are not in dispute. The issue presented is whether, as a result of a 1994 adjudication of delinquency for unlawful sexual contact second degree, he had in 2007 an on-going duty to register and/or provide notice of any change in address.
11 Del.C. § 4120.
The discrete issue presented results from a 1994 law which appears to require juveniles adjudicated delinquent to be sex offenders to register as such and produce notice of any change in residence. Stacy was seventeen when as adjudicated. At that time, the law provided that when he was twenty-five, the registration forms and information would be destroyed if he had not been arrested for a new sex offense. This provision would seem to imply that as of his twenty-fifth birthday, Stacy no longer had any continuing registration and notice duties.
In 1999, however, the statute requiring registration was amended. Among the amendments was the removal of the expungement provision relating to juvenile offenders later reaching their twenty-fifth birthday.
The law was passed and signed in 1998, but it was not to take effect until 1999. For convenience sake, the Court will refer to it as the 1999 law, enactment or amendment.
One undisputed fact in this case was that Duker had changed his registered Delaware address to an unregistered one in Maryland, but had not notified any appropriate Delaware authority of that change. Based on the changed registration requirements and deletion of the juvenile expungement provision contained in the 1999 amendment, this Court holds that Duker had a continuing duty to notify Delaware authorities of his change of residence which, or course, existed in 2007.
Accordingly, he is found guilty as charged.
Facts
The facts at trial were stipulated. They show:
1. Duker was born on November 7, 1976.
2. He was adjudicated delinquent on October 1, 1994 of the charge of unlawful sexual contact in the second degree.
3. Duker, abiding by a 1994 statute, shortly thereafter registered as a sex offender.
4. Between 1994 and his twenty-fifth birthday in 2001, he was not arrested for any new sex offense.
5. The Delaware State Police Sex Offender Registry sent a letter on January 3, 2007 to Duker's address as indicated on his most recent registration. The letter was never returned.
6. New Castle County Police Detective Marc Alfree went to that last reported residence thereafter and was informed by Duker's mother that her son usually stays with his girlfriend in Maryland. None of Duker's clothing was at the Delaware residence and he stayed there only 5 — 10 times over the prior 15 months also according to his mother.
7. Duker had not reported this change of residence to any Delaware Authority.
8. The date of the indicted offense is February 28, 2007.
11 Del.C. § 768.
State's Exhibit 2, affidavit of New Castle County Police Detective Marc Alfree.
1d.
Discussion and Conclusions of Law
On June 27, 1994, a new law became effective requiring persons convicted of certain enumerated sex offenses to register. Among the enumerated sex offenses was unlawful sexual contact in the second degree.A threshold issue to that of whether Duker had any duty to keep his registered residence up-to-date, is whether he was covered at all by this 1994 enactment. The reason is that the 1994 statute provided, "Any person who is hereafter convicted . . ." Since Duker was seventeen, adjudicated delinquent, he was not "convicted." Convictions are for crimes, but juveniles found to have violated a criminal offense are adjudicated delinquent and not deemed to have committed a crime.
Even though not the paradigm of draftsmanship, the 1994 enactment, nevertheless, when read as a whole, must be interpreted to cover juvenile adjudication.
In its interpretation of the 1994 and 1999 legislation, there are several principles of statutory construction which are implicated. The Court is to determine and give effect to the legislature's intent. Statutes are to be read as a whole and all words must be given effect. If a statute is reasonably susceptible of different conclusions or interpretations, it is ambiguous. Ambiguity can result if the interpretation leads to absurd conclusion. Additionally, if uncertainty exists, the statute must be viewed as a whole and the Court must seek to harmonize it and avoid mischievous or absurd results.
Coleman v. State, 729 A.2d 847, 851 (Del. 1991).
Williams v. State, 818 A.2d 906, 912 (Del. 2002).
Snyder v. Andrews, 708 A.2d 237, 241 (Del. 1998).
Newtowne Village Service Corp. v. Newtowne Rd. Dev. Co., 772 A.2d 172, 175 (Del. 2001).
Murphy v. Board of Pension Trustees, 442 A.2d 950, 951 (Del. 1982).
The 1994 statute required that the sex offender registration forms be sent to and held by the Department of Justice. There were different requirements for the process of registration depending on whether the person was sentenced to jail and later released or placed on probation at the time of sentencing. The 1994 statute had a provision specifically covering juvenile offenders, i.e., those adjudicated delinquent. It provided:
Id.
(d) Persons discharged or paroled from Juvenile Corrections: destruction of records.
(1) Any person who hereafter, is discharged or paroled from the Department of Services for Children, Youth and their Families, Division of Youth Rehabilitative Services, after having been adjudicated a juvenile delinquent because of the commission or attempted commission of the above-mentioned offenses shall be subject to registration under the procedures of this section.
(2) Prior to discharge or parole from the Department of Services for Children, Youth and their Families, Division of Youth Rehabilitative Services, all persons subject to registration shall be informed of the duty to register under the procedures set forth in this section. Division officials shall transmit the required forms and information to the Department of Justice.
11 Del. C. § 4120 (d) as enacted in 60 Del. Laws c. 282.
Preferably, the initial statutory sections providing for "any person . . . convicted" should have also said "or adjudicated delinquent." Even though the initial sections of § 4120 placed registration/notice requirements only on persons convicted, the above subsection makes it clear enough that persons adjudicated delinquent were to be covered. And the Courts's duty not to reach absurd results in their statutory interpretations compel this Court to say juvenile delinquency adjudications were covered in all the 1994 registration requirements.
Having resolved that threshold issue of its reach, the next step is to determine the registration steps laid out in the 1994 statute as they would or did apply to Duker. The undisputed fact is that he complied with his initial registration obligations. That law also required him to thereafter notify the Superintendent of the Delaware State Police of any change in his residence within ten days of the change. The Superintendent was obligated to forward any such notice to the Department of Justice as that agency was the central registry under the 1994 law.
11 Del. C. § 4120(b)(c)(f) as enacted in 1994.
But Duker argues that another provision in the 1994 statute terminated that duty when he reached his twenty-fifth birthday in 2001:
(3) Such forms and information transmitted to the Department of Justice as above required shall be destroyed if upon reaching the age of 25 years, the registrant has not been arrested for any like offense since his or her release, discharge or parole from the Department of Services for Children, Youth and their families, Division of Youth Rehabilitative Services.
11 Del. C. § 4120 (d)(3) as enacted in 69 Del. Laws c. 282.
Before he reached his twenty-fifth birthday, however, the Legislature enacted a substantial revision to § 4120 and added a new section, § 4121, creating sex offender risk assessment tiers, community notification procedures and other matters. The role of the new section in this case will be considered later. The 1999 statute repealed the above provision relating to juvenile offenders. Fortunately for statutory construction perhaps, the 1999 statute expressly defined sex offenders to include persons adjudicated delinquent.
Those provisions have been further revised by an enactment in 2007.
The revision in § 4120 relating to the obligation of notification when residence was changed required notice to the Superintendent within seven business days of the change, as distinct from the former requirement of 10 calendar days. Since the law effective in 1999 changed the central registry from the Department of Justice to the State Police, the Superintendent no longer had to pass a long the change of residence notice to the Department.
Changed by 76 Del. Laws c. 25 to three days.
Duker argues that he admitted to unlawful sexual contact in the second degree in reliance upon the 1994 law providing that his obligation to register or provide notice of residence change would end upon his twenty-fifth birthday (assuming no new sex offense arrests). He equates that reliance to the principle that plea agreements are contracts and subject to contract law principles. He contends, therefore, that the "promise" in the 1994 version of § 4120 must be fulfilled and that means his record should have been destroyed in 2001 and that he no longer had to notify any Delaware authority of his change of residence.
Cole v. State, 922 A.2d 354 (Del. 2005).
He cites Shields v. State, 374 A.2d 816, 820 (Del. 1997) as support.
Accepting arguendo that Duker admitted delinquency on the premise his reporting obligations ended on his twenty-fifth birthday, there was no "breach of contract." Statutory changes such as these are not covered by "contractual" principles but by others, such as, constitutional principles. The Delaware Supreme Court has held that the registration (and community notification) provisions are not punitive and do not violate any constitutional ex post facto principle. His argument is not that, of course. It is the elimination of the twenty-fifth birthday provision upon which he claims he relied. But that change violated no constitutional or contract law principle. And it was made before he reached his twenty-fifth birthday.
Helman v. State, 784 A.2d 1058 (Del. 2001).
Duker remains bound to a duty to report change of residence and to register. But that duty is not quite clear in all of its dimensions. The reason arises from the sequence of these statutory enactments and several provisions in them.
The 1994 law was a statute requiring sex offender registration and notice of any change of residence. The enactment which became effective in 1999 not only amended that provision, § 4120, it added the new one about sex offender risk assessment, assignment to risk levels, "tiers," based on the offense, and the process for community notification. This was done in the new § 4121.
71 Del Laws c. 429.
In the new law assigning tier levels, the crime of unlawful sexual contact in the second degree was assigned to Risk Assessment Tier II. In the revision to the registration provisions in § 4120, a Tier II offender had to verify residence once per year from the date of the initial registration.
And, as noted, a change in residence was to be done within seven business days. Subsequent to the date of Duker's offense in February 2007, §§ 4120 and 4121 have been amended again. The offender now must provide notice in person to the Delaware State Police and do so within three, not seven days.
76 Del. Laws c. 25.
11 Del. C. § 4120(f)(1) as amended in 2007.
At first glance, these 1999 and 2007 registration/notice provisions would seem to clarify Duker's on-going obligations to periodically register and provide notice of change of residence. But when § 4121 was added by the 1999 enactment, a new § 4122 was added also. It expressly stated that the provisions of § 4121 "shall be applicable to any person convicted after June 21, 1996 but before March 1, 1999. As indicated, Duker was adjudicated delinquent in October 1994. Two issues arise. First, the word again is convicted. For the same reasons discussed earlier, for this Court, to not reach an absurd result, holds this subsection also means adjudicated.
The second issue is less clear. The March 1, 1999 date, at least, is clear. It was the effective date of the enactment in 1998. The June 21, 1996 date is unclear and what is at first glance puzzling is the effect on those offenders, both those convicted or adjudicated, who were convicted or adjudicated between June 27, 1994 and June 21, 1996. Duker, of course, is in that group.
Duker, therefore, remains in somewhat of a legal "Twilight Zone." Since he was convicted before June 21, 1996 he is not placed into any tier level. There were no tier levels in the 1994 statute and the legislature appears to exclude tier level designations andcommunity notification from persons convicted prior to June 21, 1996. And this Court so holds.
If Duker were covered by § 4121 and be classified into Tier II, his registration requirement under the 1999 law would cease in 2009, fifteen years from his adjudication. Under the 2007 revision, it would now be 25 years. But there were no time limits in the original 1994 version of § 4120 which set in motion his reporting requirements, or any amendments since applicable to him. While not violating any constitutional provision (and Duker made no argument that the result did), his notice and re-registration requirements do not end. His duties to remain duly registered and provide notice of a residence change are greater than persons who are in Tier II starting in 2010 and akin to the lifelong obligations imposed upon Tier III sex offenders, the worst of the worst. It is an anomaly begging for legislative correction/clarification.
The ultimate result remains unchanged, however. His obligation to register and to provide notice of change of residence to any and all appropriate authorities existed at the time, February 2007, brought out by the undisputed facts of this case. He failed in that obligation.
Both parties cite State v. Paoletti as support for their opposing positions. In that case, the defendant convicted in 1995 sought to have his Tier II designation removed along with his duty to register. This Court, without reference to the exclusion of pre-June 21, 1996 convictions from § 4121's tier designation, held that the defendant was to be a no-tier sex offender. The Court also held that, even though excluded from the tier designations in § 4121, the defendant was still subject to the registration provisions in § 4120.
2007 WL 969513 (Del.Super.).
It is unclear, without citing § 4122(a), how the Court came to the no-tier designation of where such a designation exists in the statute. It is clear and correct that registration obligation continues, as shown above.
Duker argues that Paoletti supports his argument that he should be able to rely upon the principle that when admitting delinquency in 1994 he was entitled to rely upon his registration obligation ceased when he reached the age of 25 in 2001. That argument misses the mark. There is no contractual principle governing the legislature's choice in 1999 to delete that age 25 provision and no public policy supporting such "reliance."
The State's reliance on Paoletti is correct. It argues the case supports Duker's continuing need to register. As this Court has said, that duty persists.
Conclusion
For the reasons stated herein, defendant Stacy Duker is found GUILTY as charged in Criminal Action No. IN-07-03-0827. A pre-sentence investigation is ordered. Sentencing will be on December 14, 2007, at 9:30 a.m.
IT IS SO ORDERED.