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Sullivan v. United States

March 11, 2010

JOHN T. SULLIVAN, APPELLANT,
v.
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.

I.

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.

II.

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

III.

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 ...


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