United States v. Hawkins

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-CO-1330
UNITED STATES, APPELLANT,
V.
DELONTA K. HAWKINS, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF1-10431-18)
(Hon. Danya A. Dayson, Trial Judge)
(Argued September 21, 2021 Decided October 21, 2021)
Sharon A. Sprague, Assistant United States Attorney, with whom Jessie K.
Liu, United States Attorney at the time this brief was filed, and Elizabeth Trosman
and Kenechukwu Okocha, Assistant United States Attorneys, were on the brief, for
appellant.
Lee R. Goebes, Public Defender Service, with whom Samia Fam and Shilpa
S. Satoskar, Public Defender Service, were on the brief, for appellee.
Before EASTERLY and MCLEESE, Associate Judges, and FISHER, Senior Judge.
EASTERLY, Associate Judge: The District’s Sex Offender Registration Act of
1999, D.C. Code §§ 22-4000 et seq. (2012 Repl.), authorized the Court Services and
2
Offender Supervision Agency (CSOSA) for the District of Columbia to create a
database of “sex offenders,” and provides that people shall register to be included in
that database for different periods of time—ten years or their lifetime—depending
on the nature of their specific offense. D.C. Code § 22-4002(a), (b). The statute also
imposes a lifetime registration obligation on recidivist sex offenders. See
§ 22-4002(b)(3), (4). The question before us is whether appellant, Delonta K.
Hawkins, is subject to the latter provisions.
Mr. Hawkins pled guilty in 2018 to one count of misdemeanor sexual abuse
of a child. Because he had already been convicted of misdemeanor sexual abuse of
another child two years prior, the government argued that the court should certify
him as a sex offender subject to lifetime registration. The trial court, however,
concluded that the recidivist provisions in § 22-4002(b)(3) and (4) required two prior
adjudications of guilt and sentencing, not including the instant offense, and thus
certified Mr. Hawkins as a sex offender subject to a ten-year registration period. On
appeal, as it did before the trial court, the government argues that the recidivism
provisions of the SORA statute, § 22-4002(b)(3) and (4), allow a trial court to count
the instant offense before the court and any previous conviction. We agree with the
government and reverse.
3
I. Statutory Framework
SORA was enacted “to establish a sex offender registration and notification
program that authorizes CSOSA to create and maintain the sex offender registry for
the District of Columbia.” The Sex Offender Registration Act of 1999, D.C.
Council, Comm. on the Judiciary, Report on Bill 13-350 at 2 (November 15, 1999).
Under the statute, CSOSA bears central responsibility for monitoring sex offenders
and keeping the registry up-to-date. See D.C. Code § 22-4007. Local agencies have
reporting obligations to CSOSA. 1 See §§ 22-4005, -4006. In addition, the Superior
Court, “[u]pon a finding that a defendant committed a registration offense,” is
required to “enter an order certifying that the defendant is a sex offender and that the
defendant will be subject to” the appropriate registration period. § 22-4003.
The statutory scheme defines the term “committed a registration offense” to
mean either: (1) “[w]as convicted or found not guilty by reason of insanity of a
registration offense,” § 22-4001(3)(A)(i), see also § 22-4001(6), (8) (enumerating
1
Although the majority of crimes categorized as registration offenses, D.C.
Code § 22-4001(6), (8), are prosecuted by the United States Attorney’s Office for
the District of Columbia, see D.C. Code § 23-101(c), SORA does not define any role
for that office.
4
registration offenses), or (2) “was determined to be a sexual psychopath under
§§ 22-3803 through 22-3811,” § 22-4001(3)(A)(ii). 2 Registration periods are set
forth in § 22-4002(a) and (b). Subsection 22-4002(a) sets forth a ten-year default
registration obligation “start[ing] when a disposition described in 22-4001(3)(A)
occurs,” § 22-4002(a), except as described in § 22-4002(b). Subsection 22-4002(b)
describes four categories of people required to register as sex offenders not merely
for ten years, but “throughout the[ir] lifetime[s],” which obligation also “starts when
a disposition described in 22-4001(3)(A) occurs.”
The first two categories of people who must register for life under
§ 22-4002(b) are those who have “[c]ommitted a registration offense that is a
lifetime registration offense,” § 22-4002(b)(1), or have been “determined to be a
sexual psychopath under §§ 22-3803 through 22-3811.” § 22-4002(b)(2). But see
supra note 2.
The other two categories of people who must register for life under
§ 22-4002(b) are described by the recidivism provisions, which are the provisions at
2
But see Tilley v. United States, 238 A.3d 961 (D.C. 2020) (holding that the
District’s Sexual Psychopath Act, D.C. Code §§ 22-3803 et seq., is unconstitutional
and void in full).
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issue in this case. Paragraph 22-4002(b)(3) states that the registration period shall
be lifelong for a person who “[h]as been subject on 2 or more occasions to a
disposition described in § 22-4001(3)(A) that involved a felony registration offense
or a registration offense against a minor.” 3 Paragraph 22-4002(b)(4) imposes
lifetime registration on an individual who “[h]as been subject to 2 or more
dispositions described in § 22-4001(3)(A), relating to different victims, each of
which involved a felony registration offense or a registration offense against a
minor.”
II. Facts and Procedural History
During Mr. Hawkins’ sentencing hearing for misdemeanor sexual abuse of a
child, an offense to which he had pled guilty, a dispute emerged between the
government and Mr. Hawkins about his classification under SORA. The
government, “understanding that . . . this [was] [Mr. Hawkins’] second conviction
for a child sexual abuse charge, . . . request[ed] . . . [that he] register as a sex offender
for life.” Counsel for Mr. Hawkins did not dispute that Mr. Hawkins’ convictions
3
The government stated at oral argument that it understands the term
“occasions” to refer to the occasions of separate cases resulting in an adjudication of
guilt and sentence (i.e., in its view, a person is not a recidivist under § 22-4002(b)(3)
simply by virtue of having being sentenced on multiple counts within a single case).
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for misdemeanor sexual abuse of a child were “registration offenses” under
§ 22-4001(8)(D). But he did question whether Mr. Hawkins was a recidivist under
SORA and therefore whether he should be subject to lifetime registration.
In subsequent briefing ordered by the trial court, the government argued that
Mr. Hawkins is a lifetime registrant under the plain language of both recidivism
provisions: under § 22-4002(b)(3), because each of his qualifying cases involved a
different minor victim, and/or under § 22-4002(b)(4), by virtue of having one prior
qualifying conviction as well as his instant qualifying guilty plea. Mr. Hawkins
interpreted that same language differently. He argued that lifetime registration under
either of the recidivism provisions should be imposed only upon a third qualifying
offense because the phrases “has been subject on 2 or more occasions to a
disposition” and “has been subject to 2 or more dispositions” “per force [could ]not
include the disposition that is presently before [the] court.”
After considering these arguments, the trial court ruled from the bench that
Mr. Hawkins was only subject to a ten-year registration period, not the lifetime
registration period requested by the government. The court reasoned that the non-
recidivist lifetime registration provisions, § 22-4002(b)(1) and (2), use different
language and vocabulary than the recidivist lifetime registration provisions,
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§ 22-4002(b)(3) and (4), and therefore concluded that “if [the Council] had meant to
convey the same idea [in all four provisions, it] would have used the same language.”
After ruling on the SORA issue, the trial court sentenced Mr. Hawkins for his present
offense. This timely appeal of the court’s sex offender certification order followed.
III. Jurisdictional Question
Mr. Hawkins’ first challenge to the government’s appeal is a jurisdictional
one. He argues that the trial court’s sex offender certification order is not appealable
as a final civil order under D.C. Code § 11-721 (2012 Repl.) because certification is
part of the criminal case and the government has no right to appeal in a criminal case
absent “express legislative authorization.” This argument is foreclosed by the
regulatory nature of the statutory scheme which establishes a registration and
notification program, assigns responsibility for that program to an agency (CSOSA)
which does not prosecute criminal cases, and defines no role for the government
attorneys who do. Supra Part I. It is also foreclosed by our precedent, specifically
our determination that SORA registration is a “civil remedy,” not a “criminal
penalty.” See In re W.M., 851 A.2d 431, 443 (D.C. 2004) (quoting Smith v. Doe,
538 U.S. 84, 92 (2003) (concluding that the Council’s intent in passing the statute
8
“was to create a civil, nonpunitive regime” (internal quotation marks omitted)). 4
Even if SORA registration overlaps operationally with criminal matters and
“[d]espite the cogency of . . . objections to SORA as stigmatizing, onerous, and
unfair to former offenders who have rehabilitated themselves,” the statute does not
create a criminal proceeding. Id. This certification order is thus appealable as of
right under § 11-721.
IV. Statutory Interpretation
Turning to the substantive question before us, we are confronted with a
question of statutory interpretation, which we analyze de novo. In re K.G., 178 A.3d
1213, 1219 (D.C. 2018). Our role is “to ascertain and give effect to legislative intent
and to give legislative words their natural meaning.” Lopez-Ramirez v. United
States, 171 A.3d 169, 172 (D.C. 2017) (internal quotation marks omitted). This is a
“holistic endeavor,” in which we look not at “words in isolation . . . but [at their]
4
To be sure, the Council’s “denominat[ion]” of SORA as a civil statute did
not end our analysis in In re W.M., where the question before us was whether SORA
effectively inflicts punishment and therefore was subject to constitutional challenges
under the Ex Post Facto, Double Jeopardy, and Due Process Clauses. 851 A.2d at
434. But we need not address whether SORA is “so punitive either in purpose or
effect as to negate the Council’s intention to deem it ‘civil,’” 851 A.2d at 442(brackets omitted) (citing Smith v. Doe, 538 U.S. 84 (2003)), to resolve the
jurisdictional question under D.C. Code § 11-721.
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placement and purpose in the statutory scheme.” Off. of the People’s Couns. v. Pub.
Serv. Comm’n, 163 A.3d 735, 740 (D.C. 2017) (internal quotation marks omitted).
Moreover, when called upon to interpret a regulatory statute such as SORA, see
generally In re W.M., 851 A.2d 431, we must construe it “liberally . . . for the benefit
of the class it is intended to protect,” In re Doe (“S.D.”), 855 A.2d 1100, 1102 (D.C.
2004) (internal quotation marks omitted), and so we are obligated to interpret SORA
with the understanding that it “was adopted to protect the public . . . from the threat
of recidivism posed by sex offenders who have been released into the community.”
Id.In their briefs and at oral argument, the parties made much of the terms
“conviction” and “disposition,” as well as the procedural matter of when SORA
registration “occurs” during the lifetime of a case. Mr. Hawkins argued that both
“conviction” and “disposition” refer to the “final judgment at the time of sentencing”
and so concluded that at the time of Mr. Hawkins’ plea in 2018, he had been subject
to only one disposition (i.e., the disposition from two years prior). He further
contended that sex offender certification must occur at sentencing and therefore that
the government would have no right to order Mr. Hawkins to register for life after
the conclusion of his present case. The government, on the other hand, argued that
“conviction” and disposition” both refer to the moment at which the defendant is
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“proved guilty,” including “once a guilty plea is entered,” and therefore that Mr.
Hawkins had two dispositions by the time of his sentencing on the present offense.
Indeed, the government claimed that Mr. Hawkins’ plea “triggered” lifetime
registration and that sex offender certification did not necessarily have to happen
alongside sentencing. Underlying this debate was a dispute over the significance of
the varying verb tenses throughout § 22-4002(b).
For the purposes of this case, we do not think it matters very much who is
right, on any of these points. That is because no party to the case denies that
§ 22-4002(b)(1) and (2) apply to first-time offenders, despite the fact that
“committed” and “determined”—and “convicted” in the incorporated clause
§ 22-4001(3)(a)—are firmly in the past tense, and despite the parties’ disagreement
over when, procedurally speaking, SORA registration ought to occur. That is to say,
whatever a conviction is, and whenever it happens, it is undisputed that a person who
commits a lifetime offense or is determined a sexual psychopath under
§ 22-4002(b)(1) and (2)—even if it is their first such conviction or determination—
must register for life.
This shared interpretation of § 22-4002(b)(1) and (2) as applying to first-time
offenders is impossible to square with Mr. Hawkins’ suggested reading of
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§ 22-4002(b)(3) and (4) as applying only to third-time offenders. The fact that the
first two provisions conjugate verbs using the simple past tense, while the third and
fourth provisions use the present perfect tense (i.e. “has been”), is perhaps inelegant.
But seeing as both tenses are used to refer to events that have already happened, 5
this inelegance does not create any substantive difference in the provisions’
application.
Nor are we persuaded that there is any great significance in the Council’s use
of the phrase “committed a registration offense” in § 22-4002(b)(1), and its use of
the term “disposition” in § 22-4002(b)(3) and (4). The statute defines “committed a
registration offense” in § 22-4001(3)(A)(i) to mean, in relevant part, “[w]as
convicted or found not guilty by reason of insanity of a registration offense.”
Although the statute does not define “disposition” as such, § 22-4002(b)(3) and (4)
explicitly incorporate the very same definition of “committed a registration offense,”
in their reference to “dispositions described in § 22-4001(3)(A).” There can be no
doubt that, by its own description, the Council is using the phrases “committed a
5
See The Present Perfect Tense, Collins Online Dictionary, https://grammar.
collinsdictionary.com/easy-learning/the-present-perfect-tense; https://perma.cc/
3D3T-SCV5 (last visited September 22, 2021) (explaining that the present perfect is
“used to talk about events that are relevant to the present but that happened in the
past”).
12
registration offense,” “was convicted,” and “has been subject to [a] disposition[]”
interchangeably, further confirming our conclusion that, if § 22-4002(b)(1) and (2)
include the present offense, so must § 22-4002(b)(3) and (4).
Reinforcing our understanding that § 22-4002(b)(3) and (4) operate in parallel
with § 22-4002(b)(1) and (2) is the notable absence of any other statutory provision
setting out the registration obligations of a person convicted for a second qualifying
offense. If Mr. Hawkins were correct, and § 22-4002(b)(3) and (4) were effectively
“three strikes” rules, we would expect the statutory scheme to clarify whether a
second-time offender should register for multiple ten-year registration periods
consecutively or simultaneously. The lack of any such guidance suggests that the
Council did not contemplate a situation involving “stacked” registration periods.
Lastly, the statute does not specify a moment at which certification must
occur, nor is it necessary to determine that moment in order to decide the issue before
us. Although the parties argue as if it matters whether the Superior Court certifies
sex offenders before or after sentencing, the statute does not reference any stage of
a criminal case. All it says is that certification occurs “[u]pon a finding that a
defendant committed a registration offense,” § 22-4003. As above, we are satisfied
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that this language encompasses the instant case, and thus discern no need to decide
whether certification must happen at a particular moment in time.
For all of these reasons, we conclude that D.C. Code § 22-4002(b)(3) and (4)
apply to individuals upon their second qualifying disposition; or, in other words, that
the language “two or more” is inclusive of the instant disposition.
V. Conclusion
We vacate the trial court’s certification of Mr. Hawkins as a ten-year SORA
registrant and remand this case for redetermination of his status in accordance with
D.C. Code § 22-4002(b).
So ordered.