Wolf v. State , 2012 Okla. Crim. App. LEXIS 13 ( 2012 )

SUMMARY OPINION

SMITH, Judge.

I 1 Angela Michelle Wolf pled guilty to five counts of Unlawful Purchase of Pseu-doephedrine While Subject to Oklahoma Methamphetamine Offender Registry Act in violation of 63 0.S8.Supp.2010, § 2-701(B), after one former felony conviction, in the District Court of Garfield County, Case No. CF-2011-405.¹ In accordance with a negotiated plea the Honorable Dennis W. Hladik sentenced Wolf to fourteen (14) years imprisonment on each count, to run concurrently with one another and with Wolf's sentence in Garfield County Case No. CF-2005-457. Wolf filed a timely motion to withdraw her plea, which was denied after a hearing on November 21, 2011. Wolf filed a Petition for Writ of Certiorari in this Court on March 13, 2012. This Court directed the State to file a response, and that response was filed on June 11, 2012.

1 2 Wolf raises one proposition of error in support of her petition:

I. In order to be constitutional, the offense of unlawfully purchasing pseu-dophedrine while subject to the methamphetamine registry act must be construed as having a mens rea component, and here, the factual basis was inadequate to establish such mens rea. The trial court abused its discretion by refusing to allow Petitioner to withdraw her plea of guilty when the court learned that Ms. Wolf was completely unaware that she was subject to the registry and prohibited from buying psue-dophederine.

After thorough consideration of the evidence before us, including the original record, briefs, transcripts and evidence, we reverse.

13 Wolf was subject to the Methamphetamine Registry Act. 68 0.S.Supp.2010 § 2-7O1(B). The Act establishes a registry of persons convicted of various methamphetamine crimes, and applies to all persons convicted after November 1, 2010, and all persons on probation for any specified offense as of that date. Upon conviction, the district court clerk is required to send the name of the offender to the Oklahoma State Bureau of - Narcotics - and - Dangerous - Drugs (OSBNDD), which maintains the registry. A person subject to the registry is prohibited from buying pseudoephedrine. Every pharmacist or other person who sells, manufactures or distributes pseudoephedrine must check the registry at each purchase, and deny the sale to any person on the list. Wolf claims that, to be constitutional, the Act must provide notice to the persons who are subject to criminal prosecution under its provisions. The statute does not provide such notice, and violates the Due Process Clause. U.S. Const, Amend. XIV.

{4 The State argues, first, that this issue was not properly raised in Wolf's motion to withdraw her plea, and has been waived. This is not correct. Wolf claimed in her motion to withdraw that her plea was not knowing and voluntary, and entered without understanding, because she did not know she was not allowed to buy pseudoephedrine as a result of the registry statute. In lay terms, this is exactly what she claims on appeal-that the statute is unconstitutional as applied to her because she did not know she had committed a crime when she engaged in otherwise lawful activity. Although Wolf's pro se language in her Motion to Withdraw was inartful, the issue is properly before the Court.

15 The State does not contest Wolf's claim that she did not know she was committing a crime by purchasing pseu-doephedrine-an action which was otherwise legal.² The State argues, rather, that § 2-701(B) is a strict liability crime and there is no legal requirement that a person know she has violated the statute or is subject to erimi-nal penalties-the same argument made by the prosecutor at the hearing on Wolf's motion to withdraw her plea. This interpretation of the law fails to take into account the Due Process Clause and United States Supreme Court case law. As we discuss below, when otherwise lawful conduct is eriminal-ized, the criminal statute must provide sufficient notice for a person to know she is committing a crime. Section 2-701 contains no such provisions. There is a distinction between knowledge that one is subject to criminal penalties, and intent to commit a crime. A strict liability crime does not require any intent to commit a crime. However, due process requires notice that specific conduct is considered a. criminal offense.

16 Subsection E of § 2-701 explains how OSBNDD is notified when persons are subject to the registry. However, Subsection E makes no provision for anyone to notify OSBNDD which persons currently serving probation, like Wolf, are subject to the registry. Wholly absent from the statute is any provision giving notice to a person in Wolf's position-someone on probation at the time the statute went into effect-that she is subject to the registry and thus subject to criminal penalties. In fact, the statute does not provide that court clerks notify any con-viected person that their name has been submitted to the OSBNDD, or that they are subject to the registry. These omissions are the crux of Wolfs claim, and the basis of our ruling.

T7 Wolf supports her Due Process claim with two Supreme Court cases, Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 484 (1985), and Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). Lambert held that a registration law which earried criminal penalties, but gave no notice to persons subject to the registration requirement, and required no proof of actual knowledge of the duty to register, violated due process. Lambert, 355 U.S. at 229, 78 S.Ct. at 248. Liparota concerned a statute prohibiting acquisition or possession of food stamps in a manner not authorized by statute or regulations, and including a criminal penalty. The Court held that due process required a showing that the defendant knew his conduct to be unauthorized: "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Liparota, 471 U.S. at 425, 105 S.Ct. at 2088, quoting Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 248, 96 L.Ed. 288 (1952). Liparota noted that construing the statute to require knowledge of the prohibited act "is particularly appropriate where, as here, to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct." Liparota, 471 U.S. at 426, 105 S.Ct. at 2088.

T8 The State argues that Lambert does not apply, because it involved a statute requiring only registration. The State argues that, because Lambert involved a status crime-failure to register-and § 2-701 prohibits the affirmative act of buying pseudoephedrine after certain criminal convictions, there is no need for an intent requirement. Lambert does not support this claim. Whether the offense is purely a status crime or requires an action, the notice requirement remains. The Supreme Court framed this issue: "We must assume that appellant had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this defense which was refused. The question is whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge." Lambert, 355 U.S. at 227, 78 S.Ct. at 242. Section 2-701 does not require that the felon subject to the registry register; for persons convicted after November 1, 2010, the district court clerk is responsible for informing the OSBNDD that the person is subject to the registry and the OSBNDD actually puts the name on the register, while for persons serving probation, etc., on that date, the statute fails to name any person or entity who is responsible for ensuring that name is put on the registry. Nobody is responsible for notifying the con-viected felon that she is subject to the registry.

T9 The State also relies on language in Lambert noting that the Legislature may criminalize conduct alone, without regard to the intent of the perpetrator. However, in that same passage Lambert goes on to distinguish the passive conduct at issue there-failure to register-from "the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed." Lambert, 355 U.S. at 228, 78 S.Ct. at 243 (emphasis added). Whether or not intent is required for the criminal conduct, it is essential that the person should be alerted that she is committing a crime. Furthermore, in Liparota, the Supreme Court discussed strict liability "public welfare" offenses, which require no intent, but involve forbidden acts or omissions. The Court noted that, in most instances, Congress "rendered criminal a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety." - Liparotao, 471 U.S. at 482-88, 105 S.Ct. at 2092.

T 10 Taken together, Lambert and Liparo-to suggest that, while a legislature may erim-inalize conduct in itself, with no intent requirement, the legislature must make some provision to inform a person that the conduct, as applied to her, is criminal. This is particularly important where the conduct in question is otherwise legal. This is precisely the cireumstance here: some convicted felons are prohibited from purchasing pseudocephed-rine, while others, along with the general population, are not. The criminal penalties are substantial.

111 This Court has interpreted some apparent strict liability criminal statutes to require a finding of intent. Discussing the question of criminal intent, we held that the offense of Carrying a Firearm After Former Conviction of a Felony requires proof of intent or knowledge. Williams v. State, 1977 OK CR 119, ¶ 11, 565 P.2d 46, 48, overruled on other grounds, Lenion v. State, 1988 OK CR 230, 763 P.2d 381. We noted, "criminal intent is the essence of all criminal liability." Williams, 1977 OK CR 119, Okla. Crim. App. 6, 565 P.2d at 48 (citation omitted). We recognized that there are statutes whose purpose would be obstructed by a scienter requirement. Williams, 1977 OK CR 119, ¶ 8, 565 P.2d at 48, A court determines whether a given statute creates such a crime by interpreting the legislative intent. Id. We noted, "When the statute is silent, knowledge and criminal intent are generally essential if the crime involves moral turpitude, but not if it is malum prohibitum. [] Other elements to consider in determining the legislative intent include the subject matter of the prohibition and its manifest purpose and design, and the consequences of the several constructions to which the statute may be susceptible." Williams, 1977 OK CR 119, ¶ 9, 565 P.2d at 49 (quotations omitted). Wolf's case illustrates the consequences of treating § 2-701, with its lack of notice provisions, as a strict liability crime: a defendant who does not know she is prohibited from buying pseu-doephedrine is sentenced to prison for what is otherwise lawful conduct.

112 In Dear v. State, 1989 OK CR 18, ¶ 6, 773 P.2d 760, 761, we held that the offense of Carrying a Weapon implicitly contained an element that the defendant must have knowledge of the crime. Citing Williams, we repeated that criminal intent is the essence of all criminal liability,. Id. Wolf correctly notes that the statutes at issue in Williams and Dear are similar to § 2-701. They all begin "It shall be unlawful" and deseribe the prohibited conduct. See 63 O.S.Supp.2010. § 2-701(B); 21 O.S.2011, $ 1272; 21 O.S.2011, § 1283. The brief discussion in Williams of malum prohibitum, or strict liability, crimes did not touch on whether a defendant must have notice that she is subject to prosecution for such a crime if she engages in otherwise lawful activity.

113 The State argues that the Supreme Court has upheld the constitutionality of strict liability criminal statutes, citing two cases from the 1940s. As Wolf notes, in neither of these cases was the constitutionality of a strict liability criminal statute at issue, and neither supports the State's argument.

{14 In Williams v. North Caroling, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945), the issue was whether North Carolina could refuse full faith and credit to a divorce decree issued in Nevada, if, contrary to the Nevada court's finding, North Carolina found that there was no bona fide domicile in Nevada at the time of the divorce. The question was whether the parties had committed bigamy. The Court concluded that, in seeking a divorce in Nevada when they lived in North Carolina, the petitioners assumed the risk that the Court would find they had not been domiciled in Nevada, their divorces were illegal, and any subsequent marriages in North Carolina were subject to prosecution for bigamy. The Court noted, "In vindicating its public policy and particularly one so important as that bearing upon the integrity of family life, a State in punishing particular acts may provide that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance." Williams, 325 U.S. at 238, 65 S.Ct. at 1099 (quotations omitted). This involves, as the Supreme Court says, ignorance of the facts-the petitioners relied on Nevada's factual findings when acting in contravention of North Carolina law. Id. By contrast, the issue before this Court is whether persons like Wolf, who commit an otherwise lawful act, know that the act is, for them, a crime. This is a very different question.

{15 In U.S. v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1948), a corporation and Dotterweich, its president and general manager, were federally prosecuted for the misdemeanor offense of shipping adulterated or misbranded drugs in interstate commerce. The corporation was acquitted, but Dotterweich was found guilty. An appellate court reversed the conviction, finding that only the corporation was the person subject to prosecution under the statute. The Supreme Court disagreed, holding that the statute embraced both corporations and, to an undefined extent but including Dotterweich, their employees. The Court explicitly noted that the central purpose of this statute was to safeguard the public welfare. Dotterweich, 820 U.S. at 284, 64 S.Ct. at 138. This crime falls in the category of "public offenses" discussed in Liparota, supra, which may carry a criminal penalty though the offender has no consciousness of wrongdoing in the transaction. Dotterweich, 320 U.S. at 284, 64 S.Ct. at 138. In dicta, the Court notes that, in enacting the statute, Congress placed the hardship of possible criminal prosecution "upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce." Id. (emphasis added). This is the only mention in the opinion of the strict liability nature of this offense, and nothing in the opinion discusses if or what kind of knowledge would be necessary to secure a conviction for this "public offense" erime. Dotterweich does not support the State's claim that the lack of notice provisions in § 2-701 is constitutional.

1 16 The State also argues that, even if a knowing element is required by § 2-701(B), it was satisfied in this case because Wolf knowingly purchased pseudoephedrine. This confuses knowledge that one is subject to criminal penalties-notice-with intent to commit a erime. It also misstates the crime created by § 2-701(B). The State argues earlier in its brief that Wolfs crime was buying pseudoephedrine "after being convicted of multiple methamphetamine offenses." Later, the State appears to argue that the crime was simple purchase of pseudcephed-rine. The State had it right the first time. The question here is not whether a person subject to the registry knows that she is buying pseudoephedrine. That is, under most cireumstances, a lawful act, and if (as here) the sale is not refused, the person has no reason to believe she has committed a crime. The issue is precisely whether the person subject to the registry knows that, because of that status, she is not allowed to purchase pseudoephedrine. That is the criminal offense in question. Wolf was not prosecuted and sentenced to prison because she bought pseudoephedrine. She was prosecuted and sentenced to prison because she was prohibited by law from buying pseu-doephedrine.

17 The State also argues that ignorance of the law is no excuse. This shows a clear misunderstanding of the interplay between criminal liability and the requirements of due process. Ignorance of the law will ordinarily not protect a person from the criminal consequences of her actions. In Lambert the United States Supreme Court noted that this maxim is limited by due process. Lambert, 355 U.S. at 228, 78 S.Ct. at 243. The Court described these limits: "Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act. ... [The principle is equally appropriate where a person, wholly passive and unaware of any wrongdoing, is brought to the bar of justice for condemnation in a criminal case." Id. Wolf was not wholly passive-she bought pseudoephedrine. However, as far as Wolf knew this was a lawful act. The mere purchase of pseudoephedrine is not a crime, unless one is subject to $ 2-70I(B). The wrongdoing was created by Wolf's status as a person subject to the statute. The uncontested record shows Wolf was completely unaware that she was subject to § 2-701(B). The statute itself makes no provision that relevant persons should be informed they are subject to its requirements. This is a violation of due process.

118 The Supreme Court eloquently described the essential nature of notice that one is subject to criminal prosecution for otherwise lawful conduct. "As Holmes wrote in The Common Law, 'A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear. [] Its severity lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it. Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convieted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community." Lambert, 355 U.S. at 229-80, 78 S.Ct. at 248-44 (citation omitted). Section 2-701 fails to meet the basic notice requirements of due process. As any notice requirement is wholly omitted from the statutory language, there is no statutory language regarding notice which this Court may interpret in a constitutional manner. This Court cannot provide constitutional language where no language exists in the statute. For this reason, we find Subsections (B) and (H) of Section 2-701 unconstitutional.

DECISION

119 The Petition for Writ of Certiorari is GRANTED. The case is REMANDED to the District Court of Garfield County with instructions to allow Wolf to withdraw her plea and DISMISS the case. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

A. JOHNSON, P.J., LEWIS, V.P.J. and C. JOHNSON, J.: concur. LUMPKIN, J.: dissent.

1 . The State dropped two counts of the same charge as part of a negotiated plea.

2 . The record consists of Wolf's sworn testimony at the hearing on her motion to withdraw her plea. The State did not contest any of Wolf's claims at that hearing, arguing only that the statute was a strict liability crime which was satisfied by her purchases of pseudoephedrine. The State appears to suggest that this Court should disregard the uncontested evidence at the hearing, simply because it was offered by Wolf. While we have occasionally viewed a defendant's testimony with skepticism, this Court cannot choose to disregard an uncontested record. The State implies that the trial court similarly gave Wolf's testimony little weight in denying her motion. The record does not support this claim. The trial court merely confirmed that Wolf's plea form and testimony at her guilty plea proceedings were correct-a matter not at issue here- and denied her request to withdraw her plea.