March 11, 2010
JOHN T. SULLIVAN, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CF2-20909-07) (Hon. Gerald T. Fisher, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Argued February 16, 2010
Before RUIZ, GLICKMAN and THOMPSON, Associate Judges.
On March 27, 2009, the Superior Court convicted appellant, John Sullivan, of failure to register as a sex offender, in violation of the District of Columbia Sex Offender Registration Act of 1999 ("SORA" or "the Act"). See D.C. Code §§ 22-4014, 22-4015 (2001).*fn1 Appellant challenges his conviction on the ground that he was not required to register under SORA because, prior to the statute's enactment, he was released from custody in connection with the sex offense of which he was convicted, and because his post-SORA conviction of driving without a license is not the type of offense that could bring him within the reach of the Act. The government argues that appellant waived this argument by stipulating at trial that he is required to register under SORA and by failing to seek judicial review of his sex-offender designation within the time described in section 5 of SORA (D.C. Code § 22-4004). As to the merits of appellant's claim, the government contends that appellant's post-SORA conviction of driving without a permit did render him subject to the SORA registration requirements. We are unpersuaded by the government's waiver arguments, but we agree that appellant's post-SORA conviction brought him within the reach of the Act, and we therefore affirm the judgment of conviction.
SORA provides in pertinent part that any "person who lives, resides, works, or attends school in the District of Columbia, and who" "[c]ommitted a registration offense at any time and is in custody or under supervision on or after July 11, 2000," is a "sex offender" and must register under the Act and comply with periodic registration verification, reporting and other requirements as established by the Court Services and Offender Supervision Agency ("CSOSA"). D.C. Code §§ 22-4001 (9), 22-4007, 22-4014 (2001). "Registration offenses" are those offenses described in D.C. Code § 22-4001 (8)(D) (2001), including "[a]ny offense under the District of Columbia Official Code that involved . . . assaulting or threatening another with the intent to . . . commit rape." Id. SORA defines "in custody or under supervision" as being "incarcerated . . . on probation, on parole, [or] on supervised release," "because of . . . [b]eing convicted of . . . an offense under the District of Columbia Official Code." D.C. Code § 22-4001 (5) (2001).
On May 13, 1982, appellant was convicted of assault with intent to rape and sentenced to four to fifteen years of incarceration. He was released from prison on December 21, 1997, almost two years before SORA was enacted. On March 29, 2002, however, appellant was convicted of driving without a permit and placed on one year of supervised probation. Subsequently, his probation was revoked and he was incarcerated until February 28, 2003.
CSOSA sent a letter to appellant at his last known address on March 18, 2003, notifying him that he was required to register under SORA. Appellant eventually did register, but, on August 19, 2005, he signed a form indicating that he wished to seek judicial review in the Superior Court of his designation as a sex offender, the dispute-resolution procedure described in D.C. Code § 22-4004 (a)(1)--(3). After August 19, 2005, appellant never filed a motion for judicial review pursuant to section 22-4004 (a). What he did do after that date was fail repeatedly to provide verification of his registration information.
On September 10, 2007, appellant was charged with violating D.C. Code § 22-4014 for knowingly failing to report to the registration office in person to verify his registration information. On January 16, 2008, he filed a motion to dismiss the charge, contending that the SORA registration requirements do not apply to him because he completed serving his sentence for a registration offense before SORA came into effect. After the trial court denied the motion to dismiss, the parties agreed to a trial by stipulation.*fn2 On March 27, 2009, the court convicted appellant of failure to register. This appeal followed.
Appellant does not dispute that his pre-SORA offense-assault with intent to rape-is a registration offense. His contention on appeal is that he is not a "sex offender" within the meaning of D.C. Code § 22-4001 (9)(B), and is not required to register, because the legislative history of SORA does not support interpreting the Act to require registration for an individual who committed a registration offense and completed his sentence before SORA took effect, and who came into custody or supervision in the District after the effective date of SORA only for a non-violent traffic offense.
We begin our analysis by addressing briefly the government's argument that appellant waived any claim that he is not required to register because he stipulated that he "is a sex offender required to register pursuant to" SORA. We reject this argument because, unlike a guilty plea, a stipulated trial preserves a defendant's right to appeal and preserves a claim that the trial court erred in denying a pre-trial motion. See Graves v. United States, 490 A.2d 1086, 1099 n.13 (D.C. 1984), overruled on other grounds by Sell v. United States, 525 A.2d 1017, 1021 (D.C. 1987) (referring to a stipulated trial as a vehicle for "preserv[ing] the claim of error in the denial of [a pre-trial] motion"); Whyte v. United States, 471 A.2d 1018, 1019 n.3 (D.C. 1984) (noting that a stipulated trial was conducted to preserve appellant's right to appeal). Here, after the trial court denied appellant's motion to dismiss and appellant's counsel objected to the ruling, the court stated specifically that "the issue is preserved." And, after the parties informed the trial court that they had entered into a stipulated trial agreement, the trial court specifically informed appellant that by entering into a stipulated trial, he gave up his right to a full trial, but preserved his right to appeal from the denial of the motion in which he sought dismissal on the ground that he is not a "sex offender." Further, when the trial court found appellant guilty of failure to register, appellant's trial counsel stated that appellant would "appeal whether or not he is a sex offender . . . which is one of the facts [the parties had] just stipulated." These statements made clear that appellant did not intend to waive his argument that he was not required to register.*fn3
That brings us to the government's other waiver argument (or, perhaps more accurately, its forfeiture argument), which is that appellant forfeited the opportunity to challenge his "sex offender" designation because he did not file a motion in the Superior Court seeking judicial review of the designation within the time period described in D.C. Code § 22-4004 (a). In pertinent part, section 22-4004 (a) provides:
(a) (1) A person, other than a person for whom a certification has been made under § 22-4003(a) [pertaining to a court order certifying that a defendant is a sex offender], may seek review of a determination by the Agency that the person is required to register or to register for life under this chapter if:
(A) The determination depends on a finding or findings which are not apparent from the [registration offense] disposition . . . .
(2) In order to seek review of a determination, as authorized by paragraph (1) of this subsection, the person shall:
(A) At the time the person is first informed by the Agency that it has determined that the person must register as a sex offender or must register as a sex offender for life, provide the Agency with a notice of intent to seek review of the determination; and
(B) Within 30 days of providing the notice of intent described in subparagraph (A) of this paragraph, file a motion in the Court setting forth the facts which he or she disputes and attaching any documents or affidavits upon which he or she intends to rely. . . (3) If a person fails to follow the procedures set forth in paragraph (2) of this subsection, he or she may nevertheless seek review of a determination, as authorized by paragraph (1) of this subsection, but only for good cause shown and to prevent manifest injustice, by filing a motion within 3 years of the date on which a determination is made by the Agency that the person must register as a sex offender or must register as a sex offender for life.
D.C. Code § 22-4004 (a)(1)--(3).
There is no dispute that appellant did not file a motion for judicial review within the time prescribed in either section 22-4004 (a)(2) or section 22-4004 (a)(3) (and, as to the latter section, appellant has not made a claim of manifest injustice or attempted to show good cause for delay). However, rather than affording a basis for readily rejecting appellant's claim, the government's forfeiture argument raises the issue of whether, in light of the particular basis of appellant's challenge to his "sex offender" designation, appellant was required to seek judicial review of that designation, if at all, within the time prescribed in section 22-4004 (a). We conclude that he was not.
An individual may seek review of a designation as a sex offender via the dispute resolution procedures set out in section 22-4004 (a) (2) if "the determination depends on findings" that are not apparent from the conviction of a registration offense. D.C. Code § 22-4004 (a)(1).*fn4 The statutory language and the legislative history both suggest that the findings envisioned by this section involve factual determinations (rather than solely a legal determination, such as is entailed in resolving appellant's claim). D.C. Code § 22-4004 (a)(2)(B) provides that, in the motion for judicial review, an individual is to "set forth the facts which he or she disputes and attach any documents or affidavits upon which he or she intends to rely" (italics added). Similarly, the legislative history of the Act explains that "recourse to the dispute resolution process is authorized . . . where a fact necessary to the registration requirement is not apparent from the conviction or other disposition."*fn5 Council of the District of Columbia, Committee on the Judiciary, Report on Bill 13-350, The District of Columbia Sex Offender Registration Act of 1999, 24 (1999) [hereinafter Judiciary Committee Report] (italics added).*fn6 By contrast, here-no issue having been raised about the fact or nature of appellant's post-SORA conviction or about his having been in custody as a result of his post-SORA conviction-the issue regarding appellant's designation as a "sex offender" turns solely on a legal interpretation that appellant's "custody or . . . supervision on or after July 11, 2000"*fn7 in connection with his conviction of driving without a permit made him subject to the SORA registration requirements. It is not clear that the Council envisioned the section 22-4004 review mechanism as a vehicle (let alone the sole vehicle) for challenging such a legal interpretation. More to the point, we are not persuaded that the Council intended timely resort to the section 22-4004 (a) dispute-resolution mechanism to be a prerequisite to obtaining judicial review of a legal interpretation that underlies a CSOSA "sex offender" designation when the interpretation is challenged in an appeal from a failure-to-register conviction. We conclude that appellant's failure to resort to that mechanism is no bar to our consideration of his claim.*fn8
We now turn to the merits of appellant's argument that he was not required to register because the legislature did not intend that a post-SORA conviction of a nonviolent traffic offense such as driving without a permit would trigger application of the Act's registration requirements to an individual whose only conviction for a registration offense was pre-SORA. Because this is an issue as to the reach of SORA, our review is de novo. See, e.g., Mitchell v. United States, 977 A.2d 959, 963 & n.8 (D.C. 2009) (reviewing de novo the trial court's interpretation of the SORA term "in custody").
By its terms, SORA mandates registration for any individual who "[c]ommitted a registration offense at any time and is in custody or under supervision on or after July 11, 2000" because of "[b]eing convicted of . . . an offense under the District of Columbia Official Code." D.C. Code § 22-4001 (5)(A)(I), (9). The language "convicted of . . . an offense under the District of Columbia Official Code" is broad and unambiguous and does not exclude any type of conviction for which a court may order an individual into custody or supervision.*fn9 The legislative history underscores that the Council of the District of Columbia intended the Act to have such a broad reach. The Judiciary Committee explained that "a person who had merged into the general population-because he had finished serving his sentence for a registration offense before the enactment of this act-would generally not be required to register. But if that person later returned to D.C. custody or supervision because of conviction of another crime, he would become subject to the act's registration provisions." Judiciary Committee Report 22. In this example, the Committee referred to "another crime" without limiting the triggering offense to crimes of a sexual nature, violent crimes, or any other category of crimes.*fn10 Moreover, as we recognized in Doe, the Council contemplated that the terms of the Act "would be given a broad construction to effectuate the goals of the legislation." 855 A.2d at 1105 (explaining also that SORA is a "remedial regulatory enactment" that "should be liberally construed for the benefit of the class it is intended to protect," id. at 1102 (citations omitted)). There can be no doubt that appellant's post-SORA conviction of driving without a permit brought him within SORA's reach.
Considering all the foregoing, and appellant having cited no other reason why the SORA registration requirements should not apply to him, we can find no error in the trial court's denial of his motion to dismiss the charge of failure to register as a sex offender, and we therefore uphold his conviction.