State v. Hawkins

the trial As eight months. for over stances be broadened guardian to tory of definition noted, was conduct her specifically see court we requires," otherwise "context when of" needs as the inadequate as far "wholly the abandonment of in the context nothing definition, and Janet. requires another that statute any other contextual advance fails to Spencer clearly erroneous. not findings are Thus, superior adopt one. reason court's the trial supports Thus, the record aban had Spencer that properly court 47.10.011(10) that Janet ruled ruling under AS complete the state's Janet doned Spene of harm because risk of at substantial reunification. plan for of the review And our abuse.12 er's substance court did the trial that us convinces record superior challenges the Spencer also concluding that in its discretion not abuse chronic substance finding her that court's interests. in best Janet's of termination risk at substantial placed Janet abuse her continued that Spencer contends harm. CONCLUSION IV. any expose Janet abuse did substance arranged for Spencer had danger because order. the termination AFFIRM We re Spencer when for Janet to care Schultz supe But the abuse.11 into substance lapsed clearly errone findings are rior court's

ous. that, despite properly found The court Spencer's caregiving, competent

Schultz's Alaska, Appellant, of STATE to a sub- expose Janet continued conduct v. sub- Spencer's because of harm risk stantial Appellee. HAWKINS, forming W. Harold from prevented Janet abuse stance superior theAs child/parent bond. stable Cross-Appellant, Hawkins, Harold W. need problem of Janet's explained, the court simply not be solved stability could child. for the to care available having Schultz Cross-Appellee. Alaska, of State instability: she cause of the Spencer was A-7615, A-17616. Nos. parent as a available make herself would life of Alaska. drifting Appeals out of Janet's occasionally, and Court of needs, and (Spencer's) her it suited 25, 2002. Jan. way that lifestyle in a change her refusing to form a stable allow Janet would out Spencer had been relationship.

healthy abusing sub- continuously treatment of by placing her avoided have been would to Janet note 10. See supra. care, allowing Spencer to con- while in Schultz's superior court for fo- Spencer criticizes relationship. Spenc- existing maternal tinue her her substance to address cusing her failure on Janet of risk argument assumes er's focusing risk than rather abuse problems, primary danger focus suffering physical was the points Spencer out to Janet. of harm But, as superior court to terminate. that led the expressly findings do not superior court's written text, supe- in the our discussion indicated continued Spencer's abuse substance rights parental Spencer's terminated rior court But a substantial harm. place at risk of Janet continuing risk to emotional basis of the on the complete superior court's more of review desperately Janet; Janet found that the court fully con- the court findings establishes oral depend- a stable a bond with to form needed expressly to Janet risk of harm sidered suffering devastat- parent that she able continued Spencer's abuse substance continuing expo- from her harm emotional suffering danger substantial place Janet in in and out drifted mother-who to her sure harm. emotional Continuing pleased. whenever she life Janet's affirming superior court on Spencer would not 12. Our over control court-exerted unnecessary address the ground makes it risk of emotional from this protected Janet have grounds for termi- findings alternative perpetuated harm; simply would have rather it Spencer's address need not We also nation. existing harm. on the in- which claim, depends constitutional of harm assumption that the risk factual correct Rosenstein, Kenneth M. Assistant Attor- ney General, Special Office of Prosecutions Appeals, Anchorage, and Bruce M. Bo- telbo, Attorney General, Juneau, Appel- lant/Cross-Appellee. Hall,

Michelle Defender, Assistant Public Nome, Brink, and Barbara K. Public Defend- er, Anchorage, for Appellee/Cross-Appellant. COATS,

Before: Judge, Chief STEWART, MANNHEIMER and Judges.

OPINION

COATS, Judge. Chief Harold W. charged Hawkins was with fail register as a sex offender under the (ASO-R Alaska Sex Registration Offender Act A).1 Hawkins dismiss, moved to asserting grounds. number of Magistrate Bradley Hawking's rejected N. Gater all grounds one; magistrate but granted motion to ground dismiss on the that ASORA post violated the ex clause of the federal facto constitution face, because on its re quired sex register offenders to nearly forty days before ASORA actually passed. The appeals, arguing that register under ASORA continuing is a of fense, and that there was no ex violation because Hawkins's offense was fail ure to years more than three the law was enacted. cross-ap peals, arguing Gater erred when he found that Hawkins had a register under though ASORA even the state prosecute could not him for failing regis ter. below, For the reasons set out we re magistrate's verse the decision that Haw king's prosecution violated the federal ex clause and affirm his decision that Haw kins had a under ASORA. Facts and proceedings Hawkins was convicted first-degree sex- ual assault in 1981. He was sentenced to six years imprisonment, years with three sus- pended. He discharged from his August 1994, conviction in In requirement under effect, ASORA went into Hawkins failed to (1998). 1. See former AS 11.56.840 a month than 1994-more record, he has According to

register. excep general one With enacted.6 law was offender. a sex registered never of all convicted tion, required ASORA On Department. with the fenders with fail 11.56.840 charged reg exempt from the only sex offenders moved He offender. ure to had were those requirements among other arguing, charge, the to dismiss and offense single a convicted been pro federal the violated ASORA things, that that convie discharged from Magis laws.2 post against ex hibition facto creat 1, also July ASORA 1984.7 before tion motion, and the granted agreed, trate Gater and set of sex offenders categories ed various Hawking's on his Based case.3 dismissed of them.8 for each filing specific out regulations, its related and of ASORA review which Department, the Consequently, although Haw found Magistrate Gater ASORA, pro implementing for responsible register as to ASORA duty had a kins Included regulations. number of mulgated a prosecute offender, could not state the problem the to correct (apparently in these 1, by July 1994. to him for date, 1, 1994, registration July by the caused decision, Magistrate Gater part of his As regulation extend a things) was among other Safety of Public Department the found that sex offend certain filing the authority (the its exceeded Department) 31, ASORA 1996.9 Under until ers Alaska Administra 13 passed former it when regulations, Hawkins Department's and 09.010(d), (AAC) extended which tive Code a sex offender. required to the deadline offenders for certain 1998, 28, had not he However, by January magis essence, In registration. initial yet done so. register under failure trate reg- ASORA's ruled that Magistrate Gater continuing offense. a is not ASORA "punishment" requirement was Haw the dismissal appealed ©The the other purposes. On post ex facto king's However, many like ASORA case. of Haw- prosecution hand, he found this stayed pending cases, case was violate register would kins for v. State4 in Patterson decision In clause. post ex constitution's federal facto court issued After this v. Otness5 State - that under words, magistrate found other Otness, case in Patterson decisions only prosecute ASORA, could the state Upon re for reconsideration. remanded failing to like Hawkins offenders change his did not mand, Gater Magistrate 1994. Hawkins, ASORA that, applied as however, nar- on a is based finding, This clause. post federal ex violated facto ini- it was interpretation of ASORA appeal, row its renewed the state Consequently, state con- Clearly, as the tially enacted. cross-appeal. filed a to file for failure cedes, prosecuting 1, 1994, the ex would violate by July Discussion evident equally But it is clause. appeal The state's in- it passed legislature a con- upon sex offenders impose August tended into effect went ASORA pros- and to requirement tinuing registration required things, it Among other 1994. register. As this refused those who ecute convicted certain 12(a), (1998); § AS 12.63 former Const., 6. See § art. 10. U.S. 2. SLA 1994. did that Hawkins noted Gater 3. State, (Alaska 1114 Nunley 26 P.3d v. 7. See Constitu- the Alaska challenge ASORA under 1999). 41,§ (citing App.2001) clause. ex tion's (3) (2), 12.63.010(a)(1), 8. See (Alaska App.1999). P.2d 1007 4. 985 (1998). 09.010(d) (1996). AAC See former 13 (Alaska 9. App.1999). P.2d 890 986 State,10 Nunley court found in prosecute "[the lan and to those fail register, who 12.63.010(a) guage of former AS it implemented. would be By extending maldle clear '[all]l sex offender{s] who [are] initial deadline for certain sex physically present in the register.... state shall Department's regulation is this, 11 From we concluded that consistent purposes with the policies physically present "sex offenders in Alaska ASORA.14 probation had been released from the effective date of ASORA still were re cross-appeal Hawkins's quired comply general Hawkins, in his cross-appeal, con set forth former - tends that Magistrate Gater erred when he 12.63.010(a)." Moreover, majority of this found that Hawkins had a under ASO- court legislature concluded "that the intend register.15 RA to contention is subject ed to convicted sex offenders such as rejected the same as the one this court in appellants the to penalties criminal under Nunley. Like the defendants in Nunley, former failing AS 11.56.840for comply to Hawkins claims that he duty had no regis to 13 general duty ASORA's register." to ter because former AS 12.63.010 did not Hawking's cireumstances are similar to those explicit its (1), (2), terms in subsections appellants of the therefore, in Nunley; the (8) include above, him. As however, set out magistrate's narrow construction of ASORA in Nunley only we not decided that the de completely legislature's defeats the intent to duty fendants had register a to under ASO- force certain register. sex offenders to RA, majority but a of the court held that the magistrate We find the erred when he defendants criminally prosecuted could be for legislature decided that the only intended to register, failure to Because cir prosecute sex failing register offenders for to cumstances are similar to those of the defen 1, by July Accordingly, 1994. we conclude is, dants in Nuniley-that Hawkins and those that because the charged Hawkins with defendants were discharged failure to 28, on or January about July 1984, prior August 10, but to 1998, there was no ex violation. 1994-our in Nunley decision disposes of Hawking's contention that he duty had no In a argument, related Hawkins as register. Additionally, majority the decision serts that Gater correctly found in Nunley disposes of implicit Hawkins's ar Department that the exceeded authority its gument that he prosecuted could not be promulgated when it former 13 AAC register. 09.010(d),the regulation that extended the registration deadline for certain sex offend Conclusion 31,

ers until conclude, 1996. We however, Department's the regulation The decision of the district court is RE- was within scope the Department's of the part in VERSED part. AFFIRMED in authority. regulation This ensures that the We REVERSE the dismissing decision the legislature's regulate intent to charge and return this case to the trial court (Alaska App.2001). 10. 26 P.3d 1113 ("The 14. Otness, 986 P.2d at 892 Depart- Cf. persons ment's conclusion that whose conviction 11. (quoting 12.63.010(2)) Id. at 1114 former AS had been set aside should regis- have the (brackets Patterson, Nunley); in see also 985 ter is a reasonable construction consistent with (observing P.2d at legislature, 1011 find- purposes policies ASORA."). the of ing pose high risk of re- offending after release from enacted sex custody, initially 15. points Hawkins raised four of error in registration promote public offender safety); However, his cross-appeal. notice of appeal (Mannheimer, Otness, 986 P.2d at 894 J., concur- ("the argues ring) he purpose one of these-that ASORA did regis- of the sexual offender apply protect tration act to him public by any is to because he did alerting not fall under presence persons provisions them to the who have listed been in former AS - - offenses"). convicted of 12.63.010(a)(1), (2), (3). Accordingly, we will not address his other claims. 12, Nunley, 26 P.3d at 1115. Id. law, SLA session in an uncodified also complaint. We on the action further 12(a)-as by for later modified Department ch. see. decision REVERSE 09.010(d), then 13 AAC mer promulgated it authority when its exceeded 25(a).1 see. 09.010(d). AFFIRM We 13 AAC former that, under district a crimi enacted has never legislature as a had a Hawkins is, That this deadline. enforce penalty to nal offender. penalizes though AS 11.56.840 even registration meet failure offender's MANNHEIMER, dissenting. Judge, 12.63.010(a), no in specified AS that the State's my colleagues agree with I sex offender's penalizes a statute criminal no ex presents Hawkins prosecution es deadline registration to meet failure Nevertheless, could problem. 12(a). 41, sec. in SLA tablished lawfully prosecuted be provide failed to has legislature Because of- as a sex 11.56.840 failing to meet penalty a criminal fender. Haw applies to 11.56.840(a)(1) person that a declares of fail convicted kins, not be could register as a failing to crime of commits Nunley my dissent register. See "knowingly fails person if the sex offender (Alaska App. State, 1115-17 P.3d 12.63.010". required in AS ... as ... 2001). 12.63.010(a) reg three different contains AS categories of various dead three of these but none sex who like applies to defendants

lines their discharged from were of the Sex the enactment before convictions Registration Act. Offender is category for this [F.e.,by A sex offender 25(a) 1999]. March speci- this Act sec. Currently, SLA only kidnapper one conviction category of or child for this registration deadline fies aggravated offense sex not an that is sex offense It states: offenders. kidnapping, child only for a conviction or one (a) or child A offender APPLICABILITY. unconditionally discharged from who was with, this date of effective kidnapper before the 1, 1984, does not have that offense aggravated (1) for an conviction one Act, child offender or Act. A sex register under this offense, (2) for a sex more convictions two or only one conviction kidnapper with (3) kidnapping, one conviction or child offense or or aggravated sex offense an that is not offense for a conviction kidnapping and one a child kidnapping a child conviction for one offender or regardless whether offense, register under sec. required to unconditionally discharged kidnapper has been provided continue convictions, shall shall or that conviction from 12.63.010, by 7-11 of secs. amended as AS 7-11 amended sees. 12.63.010, this Act. Act, date of day the effective the 60th

Case Details

Case Name: State v. Hawkins

Court Name: Court of Appeals of Alaska

Date Published: Jan 25, 2002

Citation: 39 P.3d 1126

Docket Number: A-7615, A-17616

Court Abbreviation: Alaska Ct. App.