Opinion
No. ID No. 9412011030.
Submitted: December 26, 2006.
Decided: March 30, 2007.
ORDER
Upon Defendant's Motion for Modification of Sentence —
DENIED IN PART, GRANTED IN PART.
Defendant asks for an order relieving him of both his Tier II sex offender designation and his duty to register. He relies on the fact that he was convicted and sentenced before the current law about community notification of sex offenders was enacted. As discussed below, Defendant is not subject to tier designation, but he is required to register.
I.
On July 30, 1994, shortly after the original registration of sexual offenders law — "Megan's Law" — became effective, Defendant committed Unlawful sexual intercourse in the third degree. He pleaded guilty and was convicted on January 11, 1995. The court immediately sentenced him to prison followed by probation. On March 5, 2002, Defendant reached the sentence's maximum expiration date, and he was discharged from probation.Meanwhile, after Defendant was sentenced but while he was still on probation, the General Assembly amended and expanded the registration law. Since Defendant's release from prison, and consistent with the amended law, he has been a Tier II registered sex offender.
11 Del. C. § 4120 et. seq. See generally, Wilkerson v. State, 2006 WL 822733 (Del.Super.).
On November 2, 2006, Defendant filed this, his pro se motion for modification of sentence. As mentioned, he contends that he should not have to comply with the community notification law, including the requirement to register as a sex offender.
On November 17, 2006, the court asked for a response from the State. On December 26, 2007, the State responded as ordered. The State opposes Defendant's request to be taken off the sex offender register, but it does not oppose Defendant's designation as "Duty to Register Only — No Tier."
II.
The original, registration of sexual offenders law simply required that anyone convicted of enumerated sex offenses, including Unlawful sexual intercourse in the third degree, had to register with the State Police. The original law became effective on June 27, 1994. It contained no exceptions, and its registration requirement was forever. Thus, because Defendant committed his crime on July 30, 1994, he was indisputably subject to the original law's registration requirement.
The original law was amended in 1999, while Defendant was still under sentence. The current, community notification of sex offenders law contains two operative parts: a registration requirement plus a risk assessment and tier designation. By the terms of the current law's enactment, it generally became effective on March 1, 1999.
The specific provision establishing Risk Assessment Tier designation is "applicable to any person convicted after June 21, 1996, but before March 1, 1999." Thus, the tier designation procedure does not apply to Defendant. The same, however, is not true for the registration requirement.
As mentioned, Defendant was covered by the original "Megan's Law." Moreover, the current law provides that "any sex offender who . . . has completed a sentence imposed following a conviction for any offense specified in § 4121(a)(4) of this title shall be required to register as a sex offender." Section 4121(a)(4)'s definition of a sex offender specifically includes any person: "[c]onvicted after June 24, 1994 of any of the offenses specified in §§ 765 through 780 . . . of this title." And, that means Defendant.
III.
The current law allows sex offenders, to whom the registration requirement applies, to petition the court for release from the requirement. The law governing petitions for release from the requirement is established in 11 Del. C. § 4121(f)(2). The relation between the registration requirement and § 4121(f)(2) is imperfect in this case. As discussed, Defendant is required to register under 11 Del. C. § 4120, but he is not subject to risk assessment and tier designation under 11 Del. C. § 4121. Section 4121(f)(2), which governs petitions for release from registration, however, guides the court's discretion based on the sex offender's risk assessment and tier designation.
To decide this case, the court will consider Defendant as if he were subject to the assessment and designation. Accordingly, he meets the standards for Tier II, which is consistent with his crime and the designation he has been subject to until now. He would not be entitled to relief from that designation under § 4121(f)(2)(b), even if he established that the public safety no longer requires preservation of the original designation. That is because his victim was less than 18 years old, and he violated his probation more than once. And so, Defendant is not entitled to be considered as if he were a Tier I offender. Finally, the court observes that even if Defendant were a Tier I sex offender, which he is not, he would not yet be eligible for release from registration for several years, considering when he was released from prison.
See 11 Del. C. § 4121(f)(1)d.1.