State v. Cosgro

ALEXANDER, J.,

with whom SILVER, J. joins, dissenting.

[¶5] I respectfully dissent. In September of 2007, we published two opinions that signaled a dramatic change in how we will analyze claims of constitutional ex post facto violations in retroactive application of Maine’s sex offender registration and notification laws. In Doe v. District Attorney, 2007 ME 189, 932 A.2d 552, we extensively discussed changes in utilization of the SORNA laws and the enhancements of their punitive mandates that have occurred since our opinion in State v. Haskell, 2001 ME 154, 784 A.2d 4. We indicated that these changes may have rendered the combination of mandates and sanctions under the laws a punitive measure that, when applied to crimes committed prior to enactment of the enhanced mandates and sanctions, may result in violation of the constitutional prohibition on enactment of ex post facto laws that retroactively enhance criminal punishments. See Doe v. Dist. Attorney, 2007 ME 139, ¶ 31, 932 A.2d at 561. To develop a better record regarding the changed practices in implementation of the SORNA and its enhanced mandates and sanctions, we vacated the trial court’s dismissal of the constitutional challenge to SORNA and remanded for further fact-finding. See id. ¶¶ 36-37, 932 A.2d at 563.

[¶ 6] In State v. Diecidue, 2007 ME 137, 931 A.2d 1077, decided the same day, and with a charging document and facts very similar to the instant case, we vacated a conviction for failure to register pursuant to the SORNA. In Diecidue, we held that the close nature of the questions required that proof of the violation strictly conform to the violation pled, and that any ambiguities must be resolved in the defendant’s favor, thus requiring that the conviction be vacated. See id. ¶¶ 14-15, 931 A.2d at 1080-81. Like Cosgro, Diecidue had once filed a registration form under the law, making his conviction for failure to register inappropriate. Id.

[¶ 7] All of the events in this case — the initial charge, the denial of the motion to dismiss, the conditional plea and its requisite certification that the record before the court is adequate for appellate review, the notice of appeal and briefing by both the State and the defense-occurred prior to our decisions in Doe and Dieddue. At the time, the only governing law was State v. Haskell, which did not consider the more recent and dramatic changes in law and practice relating to sex offender registration.

[¶ 8] In light of our opinion in Doe and the closeness of the facts in the instant case to those of Dieddue, the record certified, pursuant to M.R.Crim. P. 11(a)(2), as adequate to permit review of the claims based on the conditional plea, is no longer adequate. To assure that essentially similar cases with similar issues are not treated differently and unfairly, we should remand this case for development of a proper record, as we did in Doe, to permit the parties to brief the issues recognizing the analytical changes we have adopted for consideration of constitutional ex post facto challenges to sex offender registration requirements.

[¶ 9] Separately, there is a question as to whether this case is really one on all fours with Dieddue. That question needs to be further briefed by the State and defense before we decide this appeal. As with Dieddue, the limited record available here indicates that, in 2005, Cosgro filed the requisite SORNA registration document. The State’s complaint with Cosgro, as was the complaint in Dieddue, is not really failure to file an original registration document but rather a failure to update the registration or pay the registration fees required by the law. However, as in Dieddue, the crime charged is a failure to register. If we are not going to permit a remand for development of a better record of the actual status and history of this charge, then it is difficult to see, as a matter of stare decisis, how we affirm here after vacating, on essentially the same facts, in Dieddue.

[¶ 10] Accordingly, I would vacate the conviction and remand for development of an adequate record and new briefing, properly addressing the issues raised in Doe and Dieddue, which were decided after appellate briefing was completed in this case.