Thompson v. State , 409 S.C. 386 ( 2014 )

FEW, C.J.

Clifford Thompson appeals the circuit court’s order dismissing his declaratory judgment action. In that action, he sought a declaration that his kidnapping convictions did not include a criminal sexual offense and would not require him to register as a sex offender. Thompson argues the circuit court erred in ruling (1) no justiciable controversy existed;¹ (2) it did not have subject matter jurisdiction to change Thompson’s prison classification based on Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (1999); and (3) Thompson’s claims were moot. We affirm.²

Thompson pled guilty to four kidnapping and six armed robbery offenses in 2001, and the court sentenced him to twenty-five years in prison. At that time, a person convicted of kidnapping was required to register as a sex offender when released from prison “except when the court makes a finding ... the offense did not include a criminal sexual offense.” S.C.Code Ann. § 23-3-430(C)(15) (Supp.2000); see also S.C.Code Ann. §§ 23-3-430(A), -440(1) (Supp.2000). The sentencing court did not determine whether any of the kidnappings included a criminal sexual offense. Thompson appealed, and this court affirmed all of his convictions except one kidnapping and one armed robbery. State v. Thompson, Op. No. 2003-UP-252 (S.C.Ct.App. filed Apr. 3, 2003).

In 2009, Thompson filed this action. We find the circuit court properly determined no justiciable controversy existed and dismissed the action because the question of whether Thompson should be required to register as a sex offender is not ripe for adjudication. See Pee Dee Elec. Coop., Inc. v. Carolina Power & Light Co., 279 S.C. 64, 66, 301 S.E.2d 761, 762 (1983) (“Before a court may render a declaratory judgment, an actual, justiciable controversy must exist. A justiciable controversy is a real and substantial controversy [that] is ripe and appropriate for judicial determination, as distinguished from a contingent, hypothetical or abstract dispute.”). This case does not present a justiciable controversy because the current statutes requiring registration do not contemplate that Thompson will register until he is released from prison.³ See S.C.Code Ann. § 23-3-430(A) (2007) (“Any person ... who ... has been convicted of ... an offense described below ... shall be required to register pursuant to the provisions of this article.”); S.C.Code Ann. § 23-3-430(C)(15) (Supp.2013) (listing “kidnapping” as an offense requiring registration “except when the court makes a finding ... the offense did not include a criminal sexual offense”); S.C.Code Ann. § 23-3-440(1) (2007) (“The Department of Corrections ... shall provide verbal and written notification to the offender that he must register with the sheriff of the county in which he intends to reside within one business day of his release.”). Moreover, “the applicable statute [for determining whether a person must register] is the statute that exist[s] at the time of [that person’s] release from prison,” and thus it is unknown whether Thompson will be required to register. Hazel v. State, 377 S.C. 60, 64, 659 S.E.2d 137, 139 (2008).⁴ Because the law does not require Thompson to register as a sex offender until he is released from prison, and because the sex offender registry statute may be amended between now and Thompson’s release, we find the circuit court properly dismissed Thompson’s action. Therefore, we do not reach the merits of Thompson’s claim.

Thompson’s claim will become ripe for adjudication when he is released from prison, if he is then required by law to register. The plaintiff in Hazel was convicted of kidnapping in 1979 and released from prison on parole in 2002. 377 S.C. at 62, 659 S.E.2d at 138. “Upon release, he was informed that he would be required to register on the Sex Offender Registry.” Id. He later filed an action in circuit court claiming he should not be required to register. Id. “The court granted [Hazel]’s motion for declaratory judgment and found that [he] is not required to register as a sex offender.” 377 S.C. at 63, 659 S.E.2d at 138. The supreme court held the circuit court had jurisdiction to hear the dispute and affirmed. 377 S.C. at 65, 659 S.E.2d at 140. Under Hazel, therefore, if Thompson is required upon release from prison to register as a sex offender, he may file a declaratory judgment action at that time to litigate the propriety of the requirement.⁵

As to Thompson’s other issues on appeal, the circuit court properly determined any issue relating to Thompson’s classification as a sex offender by the Department of Corrections must first be addressed through administrative proceedings. See AlShabazz, 338 S.C. at 375-78, 527 S.E.2d at 753-55 (noting an inmate must initiate a grievance within the Department of Corrections to challenge his custody status, and holding an inmate can seek judicial review only after the administrative law court has issued a final decision). Thompson also argues the circuit court erred in finding his claims were moot. We do not address this issue because the circuit court did not make such a finding in its order.

AFFIRMED.

KONDUROS, J., concurs.

1 . Thompson presented this issue as two separate issues, but we believe combining them into one enables us to more accurately address the point he raises.

2 . We decide this case without oral argument pursuant to Rule 215, SCACR.

3 . Thompson’s projected release date is August 5, 2020, and he is not currently registered on the sex offender registry. Offender Search, S.C.Law Enforcement Div., http://www.icrimewatch.net/index.php? AgencyID=54575 & disc= (agree to terms and conditions; then follow "Continue” hyperlink; then follow "Name” hyperlink; then search Clifford Thompson’s name) (last visited Jun. 30, 2014). Although the record contains a printout from the Department of Corrections' website indicating Thompson is to be included in the sex offender registry, the Department of Corrections recently updated its website, and the website no longer indicates Thompson will be required to register. Inmate Search Detail Report, S.C. Dep’t of Corr. Incarcerated Inmate Search, http://public.doc.state.sc.us/scdcpublic/ inmateDetaiIs.do?id=00274805 (last visited Jun. 30, 2014).

4 . The sex offender registry statutes have been amended many times since their enactment. See § 23-3-430(C) (enacted by Act No. 497, § 112A, 1994 S.C. Acts 5794-98; amended by Act No. 444, § 16, 1996 S.C. Acts 2684-90; Act No. 384, § 1, 1998 S.C. Acts 2302-2311; Act No. 74, § 1, 1999 S.C. Acts 244-45; Act No. 363, § 2, 2000 S.C. Acts 2444; Act No. 208, § 14, 2004 S.C. Acts 1930-31; Act No. 141, § 2, 2005 S.C. Acts 1608-11; Act No. 212, § 3, 2010 S.C. Acts 1517-19; Act No. 289, § 8, 2010 S.C. Acts 2112-13; and Act No. 255, § 5, 2012 S.C. Acts 2043-45). Many of the amendments have related to the status of kidnapping as a registration-triggering offense. See Hazel, 377 S.C. at 63-64, 659 S.E.2d at 139 (analyzing amendments to the sex offender registry statutes and noting kidnapping has been deleted from and added to the list of offenses that require registration).

5 . We recognize the sex offender registry, specifically section 23-3-430(C)(15), did not exist when Hazel pled guilty in 1979. Therefore, the sentencing court in Hazel, unlike here, did not have the opportunity to determine whether the kidnapping included a criminal sexual offense. The difference is not significant, however, because in both cases the only version of the statute applicable to the requirement for registration is the one in effect on the date of release. See Hazel, 377 S.C. at 64, 659 S.E.2d at 139 (holding "[s]ection 23-3-430[ (0(15) ] had no effect ... until [the person] was released from prison”).