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S-2013-413

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State of Oklahoma v Mark Anthony Herfurth

S-2013-413

Filed: Nov. 20, 2013

Not for publication

Prevailing Party: Mark Anthony Herfurth

Summary

Mark Anthony Herfurth appealed his conviction for Failure to Register as a Sex Offender and Sex Offender Living within 2000 feet of a School. The court affirmed the conviction and sentence by dismissing the charges against him. Judge Lewis dissented.

Decision

The ruling of the District Court granting the Motion to Quash and dismissing the cases is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

  • was there an abuse of discretion by the trial court in ruling that the Department of Corrections assigned the Appellee to a "Level 3" status without authority?
  • did the trial court err in determining that the 2007 amendment to the Sex Offender Registration Act does not apply retroactively to the Appellee?

Findings

  • the court did not err in affirming the District Court's ruling that the 2007 amendment to § 583 of the Sex Offender Registration Act does not apply retroactively to Appellee
  • the court found that the District Court did not abuse its discretion in granting the motion to quash and dismiss both cases
  • the court concluded there was no need to address the State's arguments regarding the Ex Post Facto Clause

S-2013-413

Nov. 20, 2013

State of Oklahoma

Appellant

v

Mark Anthony Herfurth

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellee Mark Anthony Herfurth was charged in the District Court of Cleveland County in Case No. CF-2011-225 with Failure to Register as a Sex Offender (Count 1) and Sex Offender Living within 2000 feet of a School (Count II), both offenses After Former Conviction of Two or More Felonies. Preliminary Hearing was held on August 24, 2011, and on September 14, 2011, Appellee was formally arraigned and bound over for trial. On January 23, 2012, Appellee filed a Motion to Quash and Dismiss on the grounds that no crime had been committed. On February 23, 2012, the State filed a response. The case was set for hearing on April 24, 2013, before the Honorable Tom Lucas, District Judge. Appellee was also charged in Case No CF-2011-1332, with Providing False/Misleading Registration Information, After Former Conviction of Two or More Felonies. On September 8, 2011, Appellee was arraigned on the charge and the case was assigned to Judge Lucas. On January 23, 2012, Appellee filed a Motion to Quash and Dismiss on the basis that no crime had been committed. The disposition of the case was held until resolution of Appellee’s motion. After the filing of the State’s response, the motion hearing was set for April 24, 2013. The cases were combined for the hearing and after hearing argument, the District Court sustained the Motion to Quash in each case and dismissed both cases. The State announced its intent to appeal and lodged this appeal. The State now appeals from the District Court’s decision pursuant to 22 O.S.2011, § 1053(4) and raises the following proposition of error:

I. The trial court abused its discretion and erroneously ruled that the Department of Corrections assigned the Appellee to a Level 3 status without authority after he was originally sentenced and 57 O.S. 583 does not apply retroactively and the change to the statute was substantive and dismissed the charges against Appellee.

As each case raises this same proposition of error, we have combined the cases for purposes of appeal. After thorough consideration of this proposition of error and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we find the ruling of the District Court granting the motions to quash and dismiss the cases should be affirmed.

The State asserts that on August 25, 1995, Appellee pled guilty to one count of Indecent Exposure and was ordered to register as a sex offender upon his release from the Department of Corrections (hereinafter DOC). Appellee was released from DOC in May 1998 and registered as a sex offender consistent with the Sex Offender Registration Act, 57 O.S.Supp. 1995, § 582 et. seq., which required him to register with DOC for ten years and with local law enforcement for five years. Appellee’s ten-year registration period was to expire May 5, 2008.

On November 1, 2007, the Sex Offender Registration Act was amended to provide for assignment of defendants to a risk level, 1, 2, or 3, with an accompanying mandatory registration period of 15 years, 25 years or life, respectively. In 2007, Appellee was assigned to Level 3 and required to register for life. On November 12, 2010, Appellee registered with the Cleveland County Sheriff’s Office as a sex offender residing at 7631 125th S.W., Noble, OK. On December 6, 2010, Appellee registered with DOC the same address. A police investigation revealed that Appellee had not been living at the Noble address but at 1026 Biloxi Drive, Norman. This address was approximately 1300 feet away from Kennedy Elementary School. Appellee never registered with the Norman police department. The current charges were filed as a result.

The cases were combined for hearing on the defense Motions to Quash and Dismiss. After hearing argument, the trial court found that DOC did not have the authority to assign Appellee to a Level 3 status, that 57 O.S. § 583 was not in effect at the time of the plea, that it is not retroactive and therefore not applicable to the defendant. The court granted the motion to quash and dismissed both cases. The State announced its intent to appeal and lodged this appeal.

Now on appeal, the State challenges only the District Court’s finding that the 2007 Amendment to § 583 of the Sex Offender Registration Act does not apply to Appellee. The State requests this Court find the District Court’s dismissal of the charges due to the erroneous ruling by Judge Lucas was not supported by the evidence or the law and therefore must be reversed and the charges against Appellee reinstated. In appeals brought to this Court pursuant to 22 O.S.2011, § 1053 this Court reviews the trial court’s decision to determine if the trial court abused its discretion. State v. Delso, 2013 OK CR 5, 5, 298 P.3d 1192, 1194. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue or a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented.

In support of its argument, the State relies on Smith v. Doe, 538 U.S. 84, 123 S.Ct.1140, 155 L.Ed.2d 163 (2003) where the United States Supreme Court reviewed the State of Alaska’s sex offender registration act and determined that its retroactive application was non-punitive and did not violate the Ex Post Facto Clause. The State argues that pursuant to Smith, and as the Oklahoma Legislature intended for the Oklahoma Sex Offender Registration Act to be a civil regulatory scheme designed to protect the public, and as Appellee was registering at the time the amendment became effective, the Sex Offender Registration Act does apply retroactively to Appellee. The State further asserts that as Appellee has not met his burden under 22 O.S. § 504.1, he is subject to prosecution for failing to register in accordance with the Sex Offender Registration Act.

We find the State’s reliance on Smith not persuasive as the first determination we must make is whether the 2007 amendment to § 583 is applicable to Appellee. As stated above, Appellee entered his guilty plea in 1995 and at that time agreed to register as a sex offender for ten years upon his release from DOC. The general common law rule of statutory construction is that statutes and amendments are to be construed to operate only prospectively unless the legislature clearly expresses an intent to the contrary. State v. Watkins, 1992 OK CR 50, 5, 837 P.2d 477, 478.

[I]ntervening changes in the law and new legislative enactments should only be applied prospectively from their effective date, unless they are specifically declared to have retroactive effect. The presumption against retroactive legislation is deeply rooted in our nation’s jurisprudence and embodies a legal doctrine centuries older than our Republic.

There is no indication that the 2007 amendment to § 583 is to be given retroactive effect. The language of the amendment does not state that it applies to those persons registered as sex offenders in 2007. Therefore, as there is no clear indication the 2007 amendment is to be given retroactive effect, the amendment applies prospectively only. This Court has adopted the procedural remedial exception to the rule on non-retroactivity for pending cases. A remedial or procedural statute that does not create, enlarge, diminish, or destroy vested rights is generally held to operate retrospectively. An amendment is substantive and not procedural or remedial if it alters the right and obligations of the individual.

In the present case, the 2007 amendment to § 583 is substantive. The amendment does not simply alter or clarify the procedure or method of registration. If the amendment was given retroactive effect, it would require Appellee to register for a longer period of time than he agreed when he entered his plea in 1995. As a retroactive application of the amendment would alter Appellee’s obligations, the amendment is substantive and, without a clear expression from the Legislature that the amendment is to be given retroactive effect, it must only be applied prospectively. We find the District Court did not abuse its discretion in determining that the 2007 amendment to § 583 is not applicable to Appellee.

Therefore, it is not necessary to address further the State’s argument and determine whether the retroactive application of the amendment violates the Ex Post Facto Clause. The District Court’s order granting the motion to quash and dismissing the cases is affirmed.

DECISION

The ruling of the District Court granting the Motion to Quash and dismissing the cases is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

  1. 57 O.S. Supp. 1995, § 583(C & (D).
  2. 57 O.S. Supp. 2007, §§ 582.5; 583.
  3. 22 O.S.2011, § 1053(4).
  4. State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194.
  5. Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 163 (2003).
  6. State v. Watkins, 1992 OK CR 50, I 5, 837 P.2d 477, 478.
  7. Salathiel, 2013 OK CR 16, II 8, P.3d.
  8. Landgraf v. USI Film Products, 511 U.S. 244, 265, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229 (1994).
  9. General Motors Corp. v. Romein, 503 U.S. 181, 191, 112 S.Ct. 1105, 1112, 117 L.Ed.2d 328 (1992).
  10. Cartwright v. State, 1989 OK CR 41, IT 11, 5 778 P.2d 479, 482-483.
  11. Watson v. State, 642 S.E.2d 328 (Ga. App. 2007).
  12. Peters v. Donald, 639 S.E.2d 345 (Ga. App. 2006).
  13. Thompson v. State, 603 S.E.2d 233 (Ga. 2004).
  14. Starkey v. Oklahoma Department of Corrections, 2013 OK 43, IT 28, 305 P.3d 1004, 1015.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 22 § 1053 (2011) - Appeal process
  • Okla. Stat. tit. 57 § 583 (2011) - Sex offender registration obligations
  • Okla. Stat. tit. 57 § 582 (2011) - Sex offender registration requirements
  • Okla. Stat. tit. 57 § 582.5 (2011) - Assignment of risk level to sex offenders
  • Okla. Stat. tit. 22 § 504.1 (2011) - Prosecution for failing to register

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

  • 11 U.S.C. § 106 - Federal Debt Relief
  • 42 U.S.C. § 1983 - Civil Action for Deprivation of Rights
  • 42 U.S.C. § 2000d - Nondiscrimination Under Programs Receiving Federal Assistance
  • 51 U.S.C. § 329 - Federal Offenses
  • 42 U.S.C. § 12132 - Discrimination on the Basis of Disability in Public Services

Other citations:

No other rule citations found.

Case citations:

  • State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194
  • Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 163 (2003)
  • State v. Watkins, 1992 OK CR 50, I 5, 837 P.2d 477, 478
  • Salathiel v. State, 2013 OK CR 16, II 8, P.3d
  • Landgraf v. USI Film Products, 511 U.S. 244, 265, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229 (1994)
  • General Motors Corp. v. Romein, 503 U.S. 181, 191, 112 S.Ct. 1105, 1112, 117 L.Ed.2d 328 (1992)
  • Cartwright v. State, 1989 OK CR 41, IT 11, 778 P.2d 479, 482-483
  • Thompson v. State, 603 S.E.2d 233 (Ga. 2004)
  • Watson v. State, 642 S.E.2d 328 (Ga. App. 2007)
  • Peters v. Donald, 639 S.E.2d 345 (Ga. App. 2006)
  • Starkey v. Oklahoma Department of Corrections, 2013 OK 43, I T 28, 305 P.3d 1004, 1015

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