602 S.W.3d 245
Mo. Ct. App.2020Background
- Petitioner (E.B.) pled guilty to possession of child pornography in 2002 (St. Charles County) and 2004 (St. Louis County) and received suspended impositions of sentence/probation. At those times SORA did not require registration for that offense.
- SORA was amended effective August 28, 2004 to add possession of child pornography as a registerable offense; Petitioner was later notified and placed on the sex-offender registry and remained on it for at least ten years.
- In August 2018 the legislature restructured SORA into three tiers with different registration durations (Tier I: 15 years, reducible to 10; Tier II: 25 years; Tier III: lifetime) and included provisions upgrading repeat offenders to higher tiers in certain circumstances.
- In September 2018 Petitioner petitioned under Section 589.401 to be removed from the registry, claiming his offenses are Tier I and that the relevant registration date was more than ten years earlier; MSHP argued Petitioner is a Tier II repeat offender under Section 589.414.6(2) because he had two Tier I adjudications.
- The trial court granted removal. On appeal, the court construed Section 589.414.6(2) and held that an upgrade to Tier II requires that, at the time of the second Tier I adjudication, the defendant already was required to register as a Tier I offender for a prior adjudication; because Petitioner was not required to register at the time of his second adjudication, he remains a Tier I offender and is eligible for removal after ten years.
Issues
| Issue | Petitioner's Argument | MSHP's Argument | Held |
|---|---|---|---|
| Whether a second adjudication for a Tier I offense automatically upgrades an offender to Tier II when the first adjudication later became registerable | Petitioner: Upgrade requires that the earlier adjudication had already created a registration requirement at the time of the second adjudication; here it did not, so he remains Tier I and is eligible for removal after 10 years. | MSHP: The legislature intended a recidivist/“three-strikes” approach; two Tier I adjudications are enough to elevate to Tier II even if the first became registerable later — courts should treat the first as a "registerable" offense and upgrade. | Court: Section 589.414.6(2) requires that the offender “is already required to register” for a prior Tier I adjudication at the time of the second adjudication; Petitioner was not, so no upgrade — affirming removal. |
Key Cases Cited
- Dixon v. Missouri State Highway Patrol, 583 S.W.3d 521 (Mo. App. W.D. 2019) (de novo review and strict construction of SORA amendments)
- Akins v. Director of Revenue, 303 S.W.3d 563 (Mo. banc 2010) (look beyond plain meaning only when statute ambiguous or absurd)
- Doe v. Phillips, 194 S.W.3d 833 (Mo. banc 2006) (SORA’s purpose includes responding to recidivism risk)
- Lumetta v. Sheriff of St. Charles County, 413 S.W.3d 718 (Mo. App. E.D. 2013) (presume every word in a statute has effect)
- Strosnider v. Replogle, 502 S.W.3d 756 (Mo. App. S.D. 2016) (court may not rewrite clear statutory language)
- Kersting v. Replogle, 492 S.W.3d 600 (Mo. App. W.D. 2016) (rule of lenity applied to resolve ambiguities in SORA amendments)