State of Tennessee v. Ashley Marie Witwer
M2014-00834-CCA-R3-CD
Tenn. Crim. App.Mar 16, 2015Background
- In 2010 Ashley Witwer pled guilty to promoting prostitution (Class E felony) and received one year incarceration as a Range I offender, consecutive to another sentence.
- In 2012 the Tennessee Act was amended to add promoting prostitution as a “sexual offense” requiring registration with the Tennessee Sex Offender Registry effective July 1, 2012.
- In July 2013 Witwer was notified to register; she attended a registration appointment but refused to complete registration.
- Witwer was indicted for failing to timely register and for failing to sign the TBI registration form; she pled guilty to failure-to-register (Class E felony) after the signatory count was dismissed.
- Witwer reserved a certified question: whether retroactive application of the 2012 amendment to require her registration violates the federal and Tennessee prohibitions on ex post facto laws.
- The trial court stayed sentence pending resolution; the Court of Criminal Appeals reviewed the constitutional challenge de novo and affirmed the statute’s retroactive application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether retroactive application of T.C.A. § 40-39-202(20)(xviii) (adding promotion of prostitution to listed sexual offenses) violates ex post facto clauses | Witwer: retroactive designation increases punishment and is therefore an unconstitutional ex post facto law as applied to her | State: registry is a civil, nonpunitive regulatory scheme intended to protect public safety; retroactive application does not increase the measure of punishment | Court: Held constitutional — registration requirement is nonpunitive in intent and effect and does not increase punishment |
Key Cases Cited
- Smith v. Doe, 538 U.S. 84 (2003) (upholding Alaska’s sex-offender registry as civil and nonpunitive)
- Ward v. State, 315 S.W.3d 461 (Tenn. 2010) (Tennessee Supreme Court treating registration requirement as nonpunitive and applicable retroactively)
- Peugh v. United States, 133 S. Ct. 2072 (2013) (ex post facto inquiry turns on whether change creates a sufficient risk of increased punishment)
- Garner v. Jones, 529 U.S. 244 (2000) (assessing risk that legislative changes increase punishment)
- Miller v. State, 584 S.W.2d 758 (Tenn. 1979) (Tennessee Ex Post Facto Clause principles)
- Calder v. Bull, 3 U.S. 386 (1798) (classic articulation of what constitutes an ex post facto law)