4/28/2020
by: Guest Blogger Lawrence Zimmerman
Effective in 2006, the Adam Walsh Child Protection and Safety Act mandates that states meet minimum legal requirements in keeping a sex offender registry. The registry under federal law is known by the acronym SORNA. Dealing with a case that involves registration lawyers must familiarize themselves with both state and federal laws.
There is now, throughout the United States, a patchwork of sex offender registrations that differ from state to state—these state regulations rarely maintain uniformity. While a person may not be required to register in one state, the person may be required to register in a bordering state. Even if that person is removed from one state’s registry, the removal in one state does not mean that the person is exempt from registration in another state when he or she visits. How should attorneys handle these issues?
A practical example highlights the problem. Your client moves to Miami for a new job, but his permanent residence is in Massachusetts. When it comes to sex offender laws, there is a large gulf between Massachusetts and Florida, much like the gulf between their professional sports franchises (Perhaps there is a correlation between winning championships and having reasonable laws, but that is a study for another day). Your client decides it would be nice to meet a woman or a child, so he hops a flight to Atlanta and finds a hotel. At the hotel, client is online looking at profiles and voila, he meets the girl of his dreams. The girl tells your client she is eighteen but then says she is 13—the ostensible girl is, in fact, a police officer.
Client is indicted for a Georgia sex offense and wants to resolve the case. Georgia’s First Offender Act is not available for most sex offenses. You can find a statute to enter a plea but, as part of negotiations, the prosecutor insists on registration as a condition of probation, but not necessarily because the charge mandates it. You agree to Cruelty to Children in the Second Degree (with no sex elements), but it is a five-year probated sentence and as a condition your client must register for the length of probation.
Here is where things get tricky. If your client returns to Florida – even after completing first offender probation – Florida sex offender registration is mandatory, possibly for life. This is true notwithstanding that Georgia would not require registration upon the client’s completion of his first offender sentence. The problem arises because Florida law considers a withheld adjudication, specifically in sex cases, a conviction. See Fla. Stat. § 943.0435 (1) (b). In Georgia, a plea under the First Offender Act, O.C.G.A. § 42-8-61, withholds adjudication. The Florida definition of who registers is a broad one creating a problem for this client who entered a plea to even a nonsexual offense. Setting aside the fact that Florida does not recognize withheld adjudications, Florida will nevertheless require registration based on the mere fact that the client previously registered as a condition of probation in this state or another one. See Fla. Stat § 943.0435 (h) (1) (a) (II) (b). Getting off Florida’s registry is very difficult, so we will need a guest Florida blogger to discuss that issue, but it will be a short blog.
After client completes his Georgia probation and living in Florida does not work out, he relocates to New England because he prefers cold winters, reasonable laws, and winning professional sports teams. Massachusetts is a dream state for someone who was previously on a registry with a withheld adjudication. Here is why: Massachusetts defines a “sex offender” as someone who has been convicted of a sex offense or “who has been adjudicated as a youthful offender or as a delinquent juvenile by reason of a sex offense or a person released from incarceration or parole or probation supervision or custody with the department of youth services for such a conviction or adjudication or a person who has been adjudicated a sexually dangerous…” G.L. c. §178 C.
What is the material difference here? Unlike Florida, Massachusetts does not have a catchall provision regarding prior sex offender designations or registrations, and an adjudication withheld is not a conviction. Massachusetts mandates only those who have been adjudicated of a crime to register. Great news, right? Sure, unless you want to travel outside of Massachusetts for the weekend, or for a work trip.
Take the case of William Bridges. Bridges moved from Florida to Virginia after a sex battery plea, and at some point, he failed to update his address with the sex offender board. United States v. Bridges, 741 F.3d 464 (2014). In 2001, Bridges in Florida entered a nolo contendre (withheld adjudication) plea to a sex offense and received one-year probation. Id. at 465. Years later while living in Virginia as a registered offender, the federal government indicted him for failing to update his address. Id.
Bridges claimed his plea was not considered a conviction, but SORNA does not recognize withheld adjudication. In Bridges the court referenced the federal registry stating, “[t]he federal registration requirement, in other words, cannot be avoided simply because a jurisdiction “has a procedure under which the convictions of sex offenders in certain categories ... are referred to as something other than ‘convictions.’” Bridges at 468 (quoting 73 Fed. Reg. at 38,050). Where does that leave us? Bridges does not squarely address our issue if a client enters a plea under First Offender and registers as a probation condition. Yet this case is another example of how this area of law is rife with pitfalls and future collateral consequences. These different issues will arise on a case-by-case and state-by-state basis and interplay with federal law.
To get clarity under federal law prior to advising a client to enter a plea under state law, one must review 34 U.S.C. § 20911, a federal statute that covers the types of crimes requiring sex offender registration under federal law. A good discussion about the registry, as it pertains to Georgia’s First Offender act, is authored by our friend, Hon. Alan J. Baverman, whose report and recommendation provides a comprehensive analysis. SeeUnited States v. Grant, 2018 WL 4516008. However, unlike in Grant, a Georgia defendant may no longer avail oneself of the First Offender Act for a child molestation charge.
In Georgia, most sex offenses do not qualify for first offender; the disqualifying offenses are enumerated in O.C.G.A. § 42-8-60. The best advice is to first find a criminal offense (for example, cruelty to children) which allows for first offender disposition. Then, if the prosecutor insists on registration, agree to it only as a last resort to close the deal. Upon successful completion of probation, there is no conviction and in Georgia no registry requirement. It is especially important to ask the prosecutor to dismiss the indictment and draw a separate accusation with elements not alleging any sexual component. Even with these safeguards, you will still need to apprise your client that the mere fact of Georgia registration can pose a future problem depending on where a client chooses to reside—now or twenty years from now. Most prosecutors are unaware of the federal registration requirements, or potential collateral consequences in other states, so you may be able to convince them that lifetime registration was not the intent of the parties. Therefore, it is possible once you show prosecutors the law, or this blog article, a better negotiation can be achieved.