MARK J. HORTON v. STATE OF MISSOURI, Respondent-Respondent.

MARK J. HORTON, )
)
Petitioner-Appellant, )
)
vs. ) No. SD33329
)
STATE OF MISSOURI, ) Filed: April 13, 2015
)
Respondent-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY
Honorable Timothy W. Perigo, Circuit Judge
AFFIRMED
Mark J. Horton (“Petitioner”) appeals the trial court’s denial of his petition for the
removal of his name from Missouri’s sex offender registry. We affirm the trial court’s
judgment because Petitioner “has been . . . required” to register under the federal Sex
Offender Registration and Notification Act (“SORNA”)1 and, as a result, is required to
register under Missouri’s Sex Offender Registration Act (“SORA”)2 even though he may
no longer be required to register under SORNA.
1
42 U.S.C. §§ 16901, et seq. (effective July 27, 2006).
2
Section 589.400, et seq., RSMo Cum.Supp. 2008.
1
Facts and Procedural History
As the appellant, Petitioner had the responsibility to prepare a record on appeal
that is sufficient to permit us to resolve his claim in this appeal. Rule 81.12(c)-(e);3 Hall
v. Hall, 345 S.W.3d 291, 292 n.1 (Mo.App. S.D. 2011). Petitioner has failed to do so.
The legal file contains only a docket sheet, a one-page petition, and a one-page judgment.
Only a single transcript was filed with us, and that transcript reflects a hearing at which
no evidence was tendered or admitted, and the trial court’s only substantive action at the
hearing was to take judicial notice of state and federal statutes. No exhibits were
deposited with us. We present the facts that are accepted as true by both Petitioner and
the State.4
These “agreed” facts are the following. In January 1996, Petitioner entered an
Alford plea of guilty to the class A misdemeanor of sexual abuse in the second degree for
conduct that occurred in 1993 in Newton County in violation of section 566.110, RSMo
Cum.Supp. 1990.5 At the time of the offense, Petitioner was older than twenty and
Petitioner’s victim was thirteen. Petitioner’s misdemeanor offense caused him to be “a
tier I sex offender” under SORNA.
In addition, the record shows that, on December 11, 2013, in Newton County,
Petitioner filed a petition to remove his name from the “sexual offender registry.”
3
All rule references are to Missouri Court Rules (2015).
4
See Riggins v. Director of Revenue, No. SD33368, 2015 WL 452440, at *1 n.2 (Mo.App. S.D. January
27, 2015) (discussing rules for determining facts on appeal when the record is incomplete).
5
North Carolina v. Alford, 400 U.S. 25 (1970). In a plea pursuant to the principles announced in Alford, a
defendant affirmatively claims he is innocent of the crime to which he is pleading guilty, but “intelligently
concludes that his interests require entry of a guilty plea and the record before the judge contains strong
evidence of actual guilt.” Id. at 37. “An Alford plea . . . ‘stands on equal footing with one in which an
accused specifically admits the commission of the particular act charged.’” Wilson v. State, 813 S.W.2d
833, 843 (Mo. banc 1991) (quoting Jenkins v. State, 788 S.W.2d 536, 538 (Mo.App. S.D. 1990)).
2
Among other facts alleged in the petition are that Petitioner “has duly registered” and
“[u]nder Section 16915(a)(1) of SORNA (42 U.S.C. § 16915), [Petitioner] no longer has
a duty to register.” The trial court held a hearing on February 14, 2014. At the hearing,
the trial court expressed the view that “[i]t’s a legal issue, not factual,” and counsel for
Petitioner responded “[a]ll right. That sounds good.” No evidence was tendered or
admitted at the hearing, and the trial court’s only substantive action at the hearing was to
take judicial notice of state and federal statutes. The trial court denied Petitioner’s
petition on April 2, 2014.
Analysis
In his sole point relied on, Petitioner claims that the trial court erred in denying
his petition to remove his name from Missouri’s sex offender registry because Missouri’s
Sex Offender Registration Act does not apply to Petitioner’s pre-2000 plea to a
misdemeanor, and because Petitioner is a “federal tier I sex offender” and “may be
removed from the registry 15 years after” his plea. We deny Petitioner’s point because it
ignores well-established Missouri law.
In reviewing a court-tried case, we will:
affirm the trial court’s judgment unless it is not supported by substantial
evidence, it is against the weight of the evidence, it erroneously declares
the law, or it erroneously applies the law. [Murphy v. Carron, 536
S.W.2d 30, 32 (Mo. banc 1976)]. The interpretation and application of a
statute to a given set of facts is a question of law we review de novo,
giving no deference to the trial court’s conclusions. See Otte v. Edwards,
370 S.W.3d 898, 900 (Mo.App. E.D.2012).
Solomon v. St. Charles County Prosecuting Attorney’s Office, 409 S.W.3d 487, 489
(Mo.App. E.D. 2013).
3
Petitioner is correct that SORA does not require him to register as a sex offender
based solely on his pre-2000 plea to a misdemeanor because (1) SORA did not require
registration for a misdemeanor until August 28, 2000, and (2) Missouri’s constitutional
prohibition on laws enacted by the state being “retrospective in [their] operation”
prevents SORA from applying retroactively to Petitioner’s pre-2000, misdemeanor plea.
Doe v. Keathley, 290 S.W.3d 719, 20 (Mo. banc 2009) (“On August 28, 2000, [SORA]
was amended to require registration for misdemeanor offenses under chapter 566.”); Doe
v. Phillips, 194 S.W.3d 833, 849-53 (Mo. banc 2006) (SORA cannot be applied to “those
persons who were convicted or pled guilty prior to” SORA’s effective date because of
Missouri’s constitutional prohibition of “laws [that are] retrospective in their operation”);
Doe v. Blunt, 225 S.W.3d 421 (Mo. banc 2007) (applied Phillips to an amendment of
SORA that added an offense to those offenses requiring registration).
However, SORA also requires a person to register as a sex offender who “has
been or is required to register under . . . federal . . . law.” Section 589.400.1(7), RSMo
Cum.Supp. 2008; Doe v. Toelke, 389 S.W.3d 165, 167 (Mo. banc 2012). The federal Sex
Offender Registration and Notification Act (effective July 27, 2006) imposes an
independent, federally mandated registration requirement that is not subject to Missouri’s
constitutional ban on state laws that operate retrospectively. Doe v. Keathley, 290
S.W.3d at 720; Roe v. Replogle, 408 S.W.3d 759, 767-69 (Mo. banc 2013). Further,
SORNA has applied to persons who pled guilty before its enactment since at least August
1, 2008, following the United States Attorney General’s issuance of final guidelines.
Vaughan v. Missouri Department of Corrections, 385 S.W.3d 465, 468 (Mo.App. W.D.
2012); United States v. Whitlow, 714 F.3d 41 (1st Cir.), cert. denied, 134 S. Ct. 287
4
(2013); see also Doe v. Keathley, 290 S.W.3d at 720 (“SORNA applies to individuals
who committed a sex offense prior to July 2[7], 2006. 42 U.S.C. section 16913(d); 28
C.F.R., section 72.3.”); Roe v. Replogle, 408 S.W.3d at 768 (“SORNA’s registration
requirement applies to all individuals convicted of a sex offense. Sections 16911(1),
16913. Accordingly, an offender who completed his involvement with the criminal
justice system before the enactment of SORNA, such as Mr. Roe, still may be required to
register. Doe v. Keathley, 344 S.W.3d [759,] 770 [(Mo.App. W.D. 2011)].”).
As a tier I sex offender under SORNA, Petitioner was required to “keep his
registration current for” fifteen years “unless . . . allowed a reduction.” 42 U.S.C.
§16915(a)(1). If allowed, the reduction for a tier I sex offender is five years. 42 U.S.C.
§16915(b)(3)(A). The record does not contain any evidence that Petitioner ever sought or
was “allowed” a reduction. As a result, at a minimum, Petitioner was required to register
as a sex offender under SORNA from at least August 1, 2008 to January 2011, when his
fifteen year registration period expired. Inasmuch as Petitioner “has been” required to
register under federal law, he now is required to register in Missouri under SORA even
though he may no longer be required to register under federal law. Toelke, 389 S.W.3d
at 167. As the Eastern District recently summarized in the context of a defendant’s guilty
plea to a misdemeanor in April 1996:
In their first point on appeal, Defendants contend the trial court
erred in finding Solomon met his federal registration obligation and,
therefore, did not have to register under Missouri law. Defendants argue
that a sex offender who has been or is required to register under federal
law is required to register under Missouri law, even if the federal
requirement has lapsed. We agree.
The interplay between the federal registration requirements
pursuant to SORNA and Missouri’s registration requirements pursuant to
SORA has been well-documented. See Doe v. Toelke, 389 S.W.3d 165,
166–67 (Mo. banc 2012); Doe v. Keathley, 290 S.W.3d 719, 720–21 (Mo.
5
banc 2009). SORA requires a Missouri resident to register as a sex
offender if he or she “has been or is required to register under ... federal ...
law....” Section 589.400.1(7). SORNA provides “a sex offender shall
register ... in each jurisdiction where the offender resides.” 43 U.S.C.
Section 16913(a).
....
Solomon’s requirement to register as a sex offender pursuant to
SORNA triggered an independent obligation for him to register as a sex
offender pursuant to SORA. As such, Solomon’s contention that his
federal registration requirement cannot serve as the sole basis to require
registration under Missouri law is belied by the controlling precedents. In
Toelke and Keathley, the Missouri Supreme Court held that a Missouri
resident deemed a sex offender pursuant to the terms of SORNA has an
“independent, federally mandated registration requirement” that triggers
the individual’s duty to register in Missouri. Toelke, 389 S.W.3d at 167;
Keathley, 290 S.W.3d at 720. The court found that the State’s registration
requirements in Section 589.400.1(7) of SORA are based on the person’s
present status as a sex offender who “has been or is required” to register
pursuant to SORNA. Toelke, 389 S.W.3d at 167. Therefore, if an
individual has been required to register pursuant to SORNA, he or she is
presently required to register pursuant to SORA. Id.
Solomon concedes that he was required to register as a sex
offender pursuant to SORNA. That registration requirement triggered an
independent obligation for him to register pursuant to Section
589.400.1(7) of SORA. The registration requirements of SORA are
lifetime registration requirements, unless . . . narrow criteria are met[.]
Solomon, 409 S.W.3d at 489-90; see also Doe v. Replogle, 445 S.W.3d 573, 575-76
(Mo.App. S.D. 2013), cert. denied, 134 S. Ct. 2853 (2014) (similar summary of the law in
the context of a tier III sex offender). Petitioner does not claim that he meets any of the
“narrow criteria” that permit a reduced registration period under SORA. Petitioner now
is required to register under SORA because he “has been” required to register under
federal law (i.e., SORNA) from at least August 1, 2008 until January 2011.
In the argument portions of his briefs, Petitioner raises two claims that were not
pled, or presented to, or decided by the trial court, and were not included in his point
relied on in this appeal. We decline to review either of these claims because we will not
6
convict a trial court of error on an issue not presented to the trial court for decision.
Vaughan, 385 S.W.3d at 468; see also Brown v. Brown, 423 S.W.3d 784, 788 (Mo. banc
2014) (“‘An issue that was never presented to or decided by the trial court is not
preserved for appellate review.’” (quoting State ex rel. Nixon v. American Tobacco Co.,
Inc., 34 S.W.3d 122, 129 (Mo. banc 2000)); Doe v. Keathley, 344 S.W.3d 759, 770
(Mo.App. W.D. 2011) (“Doe’s petition only sought relief on the basis that he had not
been ‘convicted’ of a sex offense within the meaning of the statute. He did not allege that
he should be exempted from SORNA’s registration requirements because he had
completed his involvement in Missouri’s criminal justice system at the time the statute
became effective. Doe is not entitled to relief on a ground he did not assert in the circuit
court.”). In addition, an argument not included in an appellant’s point relied on is not
preserved for our review. Rule 84.04(e) (“The argument shall be limited to those errors
included in the ‘Points Relied On.’”); State v. Guinn, No. SD33028, 2014 WL 6845559,
*3 n.4 (Mo.App. S.D. Dec. 4, 2014).
Petitioner’s point is denied, and the trial court’s judgment is affirmed.
Nancy Steffen Rahmeyer, J. - Opinion Author
Mary W. Sheffield, P.J. - Concurs
Don E. Burrell, J. - Concurs
7