Kitze v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia

JEFFREY THEODORE KITZE
OPINION BY
v. Record No. 1900-94-2 JUDGE LARRY G. ELDER
SEPTEMBER 24, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
David F. Berry, Judge

William H. Shewmake (Shewmake, Baronian &
Parkinson, on briefs), for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

Jeffrey Theodore Kitze (appellant) appeals his convictions

for rape, in violation of Code § 18.2-61, and malicious wounding,

in violation of Code § 18.2-51. As part of appellant's sentence,

appellant was requested to register with local law enforcement

officers as a sex offender pursuant to Code § 19.2-298.1.

Appellant contends that because Code § 19.2-298.1 was enacted

after the offenses occurred, the trial court violated his federal

and state constitutional rights against the imposition of an ex
post facto law. We disagree with appellant and affirm his

convictions.

I.

FACTS

Following a trial on July 9, 1990, a jury found appellant

guilty of rape and malicious wounding. The Supreme Court of
Virginia reversed these convictions and remanded the case for

retrial. See Kitze v. Commonwealth, 246 Va. 283, 435 S.E.2d 583

(1993). On July 1, 1994, Code § 19.2-298.1 became effective.

Appellant pled guilty to both charges at his second trial on

August 26, 1994. The trial court sentenced appellant to serve

forty years in prison with ten years suspended on the rape

conviction, and ten years in prison with five years suspended on

the malicious wounding conviction. In addition, the trial court

required appellant to register with the Sex Offender Registry of

the Department of State Police, in accordance with Code
§ 19.2-298.1.

II.

EX POST FACTO LAW

The United States Constitution, article 1, § 10, and the

Virginia Constitution, article 1, § 9, prohibit the Commonwealth

from enacting ex post facto laws. These constitutional

prohibitions on ex post facto laws apply only to statutes that

impose penalties, Collins v. Youngblood, 497 U.S. 37, 41 (1990),
or where the challenged change in the law "alters the definition

of criminal conduct." California Dept. of Corrections v.

Morales, __ U.S. __, __ n.3, 115 S. Ct. 1597, 1602 n.3 (1995).

In deciding whether or not a law is
penal, [the United States Supreme] Court has
generally based its determination upon the
purpose of the statute. If the statute
imposes a disability for the purposes of
punishment--that is, to reprimand the
wrongdoer, to deter others, etc., it has been
considered penal. But a statute has been

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 considered nonpenal if it imposes a
disability, not to punish, but to accomplish
some other legitimate governmental purpose.
The Court has recognized that any statute
decreeing some adversity as a consequence of
certain conduct may have both a penal and a
nonpenal effect. The controlling nature of
such statutes normally depends on the evident
purpose of the legislature.

Trop v. Dulles, 356 U.S. 86, 96 (1958)(plurality opinion)

(footnotes omitted); Snyder v. State, 912 P.2d 1127, 1130 (Wyo.

1996)(holding that registration of sex offenders under the

Wyoming Sex Offenders Registration Act does not offend the

prohibition against ex post facto laws).
The statutory scheme under which appellant was required to

register as a sex offender creates a Sex Offender Registry in the

Commonwealth. The purpose of the Registry is:

to assist the efforts of law-enforcement
agencies to protect their communities from
repeat sex offenders and to protect children
from becoming the victims of repeat sex
offenders by helping to prevent such
individuals from being hired or allowed to
volunteer to work directly with children.

Code § 19.2-390.1(A). Every person convicted on or after July 1,

1994, of a sex crime such as rape is required to register with

the Department of State Police within thirty days from release

from confinement. Code § 19.2-298.1(A). A knowing and

intentional failure to register is punishable as a Class 1

misdemeanor, Code § 19.2-298.1(E), and could expose the sex

offender to contempt of court charges for failure to abide by the

Commonwealth's laws during a period of suspension.

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 We hold that the sex offender registration requirement is

not penal and that the General Assembly "intended to facilitate

law enforcement and protection of children. There was no intent

to inflict greater punishment [on the convicted sex offender]."

Snyder, 912 P.2d at 1131. Protecting the public and preventing

crimes are regulatory, not punitive, purposes. Artway v. New

Jersey, 81 F.3d 1235, 1264 (3d Cir. 1996)(citing De Veau v.

Braisted, 363 U.S. 144, 160 (1960)).
Here, the solely remedial purpose of
helping law enforcement agencies keep tabs on
these offenders fully explains requiring
certain sex offenders to register.
Registration may allow officers to prevent
future crimes by intervening in dangerous
situations. Like the agent who must endure
the snow to fetch the soupmeat, the
registrant may face some unpleasantness from
having to register and update his
registration. But the remedial purpose of
knowing the whereabouts of sex offenders
fully explains the registration provision
just as the need for dinner fully explains a
trip out into the night. And the means
chosen--registration and law enforcement
notification only--is not excessive in any
way. Registration, therefore, is certainly
"reasonably related" to a legitimate goal:
allowing law enforcement to stay vigilant
against possible re-abuse.

Artway, 81 F.3d. at 1265.

Other states considering this issue have reached the same

result. For example, the Court of Appeals of Minnesota recently

concluded "that [Minnesota's sex offender] registration statute

does not impose an affirmative disability, has not historically

been viewed as punishment, and does not advance the traditional

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aims of punishment." State v. Manning, 532 N.W.2d 244, 248

(Minn. Ct. App. 1995). Similarly, the Supreme Court of New

Hampshire held that "the [New Hampshire] sexual offender

registration [requirement] inflicts no greater punishment" upon

the sex offender and does not violate ex post facto principles.

State v. Costello, 643 A.2d 531, 534 (N.H. 1994). In State v.

Ward, 869 P.2d 1062, 1068, 1074 (Wash. 1994)(en banc), the

Supreme Court of Washington held that both the purpose and effect

of Washington's sex offender registration requirement were not

punitive. See also Doe v. Poritz, 662 A.2d 367 (N.J. 1995)

(holding that New Jersey's sex offender registration requirement

had a totally remedial purpose); People v. Adams, 581 N.E.2d 637

(Ill. 1991)(holding that Illinois' sex offender registration

requirement does not constitute punishment).

While registration might impose a burden on a convicted sex

offender, registration is merely a remedial aspect of a sex

offender's sentence. As the Supreme Court of New Jersey held:

[t]he fact that some deterrent punitive
impact may result, does not . . . transform
[sex offender registration] provisions into
"punishment" if that impact is an inevitable
consequence of the regulatory provision, as
distinguished from an impact that results
from "excessive" provisions, provisions that
do not advance the regulatory purpose.

Poritz, 662 A.2d at 405 (footnote omitted). Any potential

punishment arising from the sex offender's failure to register is

prospective and does not punish him or her for past criminal

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activity. See Jones v. Murray, 962 F.2d 302, 310 n.3 (4th Cir.),

cert. denied, 506 U.S. 977 (1992). 1
Similarly, a potential contempt violation for failure to

abide by the trial court's sentencing order, which could lead to

a reimposition of any suspended jail time and a revocation of

parole and probation rights, is prospective. In Costello, the

defendant was prosecuted for violating the terms of his probation

by failing to register as a sex offender. The Supreme Court of

New Hampshire stated:
[T]he defendant's argument with respect to
the added burden he suffers is that he is
being prosecuted for an act (not registering)
that was not illegal when he committed the
underlying sexual assault. This misconstrues
1
The Fourth Circuit Court of Appeals held in Jones, with
regard to sanctions for failure to provide a DNA sample:

Suffice it to say that whatever punishment or
disadvantagement is imposed results, not by
reason of conduct that took place before
enactment of the statute, so as to become
retrospective, but from conduct that occurred
after enactment in refusing to comply with a
reasonable regulation.
Jones, 962 F.2d at 310 n.10.

Furthermore:

[t]he mark of an ex post facto law is
the imposition of what can fairly be
designated punishment for past acts. The
question in each case where unpleasant
consequences are brought to bear upon an
individual for prior conduct, is whether the
legislative aim was to punish that individual
for past activity, or whether the restriction
of the individual comes about as a relevant
incident to a regulation of a present
situation . . . .

Snyder, 912 P.2d at 1131 (citing De Veau, 363 U.S. at 160).

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 the appropriate ex post facto analysis. In
fact, the defendant is being prosecuted for
an act, failure to register, that was itself
an offense when the defendant committed it,
which presents no problems of
retrospectivity.

Costello, 643 A.2d at 533.

Most of the cases discussed above involve situations where

the registration requirement was not imposed as part of the

defendant's sentence, but rather was imposed subsequently. 2 This

does not alter our analysis of whether the registration

requirement constitutes punishment. Merely because a trial court

imposes the registration requirement as part of a sentence does
not convert a non-punitive statute into a punitive statute. For

example, in People v. Starnes, 653 N.E.2d 4 (Ill. App. Ct.),

appeal denied, 657 N.E.2d 635 (1995), the trial court's

sentencing order required the defendant to register as a

first-time sex offender, even though at the time of the offense,

Illinois required only second-time sex offenders to register.

The Illinois Court of Appeals rejected the defendant's ex post
facto argument, holding that the registration requirement did not

constitute punishment, even where it was imposed as part of the

defendant's sentence. Id. at 6.

For these reasons, we hold that the sex offender

registration requirement does not violate the constitutional

prohibitions against ex post facto laws. We therefore affirm
2
Other state statutes allow a court to impose the
registration requirement retroactively, after the sex offender's
original sentence is imposed. See, e.g., N.J. Stat. Ann.
§ 2C:7-2b(1)(West 1995); Wash. Rev. Code § 9A:44.130 (West 1995).

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appellant's convictions.

Affirmed.

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Benton, J., dissenting.

The issue in this case is not complicated. The evidence

proved that Jeffrey Theodore Kitze committed acts in 1989 that

led to indictments for rape and malicious wounding. At that

time, Code § 19.2-298.1 had not been enacted. Kitze was tried in

1990 and convicted of rape and malicious wounding. His

convictions were reversed on appeal and remanded for a new trial.

See Kitze v. Commonwealth, 246 Va. 283, 435 S.E.2d 583 (1993).

At that time, Code § 19.2-298.1 had not been enacted.
On remand and during the course of the new trial in August

1994, Kitze pled guilty to both charges. Prior to the

commencement of the second trial, Code § 19.2-298.1 became

effective. In pertinent part, the statute reads as follows:
Every person convicted on or after July 1,
1994, for a felony in violation of
§§ 18.2-61, [,rape,] shall be required
as a part of the sentence imposed upon
conviction to register with the Department
of State Police. The order shall also
impose a duty to keep the registration
current in accordance with this section.

Code § 19.2-298.1(A)(emphasis added).

In sentencing Kitze upon his plea of guilty, the trial

judge's order stated that "[i]t is further ORDERED, in accordance

with Virginia Code Section 19.2-298.1, that the defendant

register with the Sex Offender Registry of the Department of

State Police within thirty days from the date of his release from

incarceration and to keep the registration current in accordance

with said section." This statutorily mandated penalty did not

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exist as an aspect of sentencing when Kitze committed the

criminal offenses.

The Constitution of the United States provides that "[n]o

State shall . . . pass any . . . ex post facto Law." Art. I,

§ 10. "It is settled, by decisions of . . . [the Supreme] Court

. . . , that any statute . . . which makes more burdensome the

punishment for a crime, after its commission, . . . is prohibited

as ex post facto." Beazell v. Ohio, 269 U.S. 167, 169-70 (1925).

"[T]he Latin phrase 'ex post facto' literally encompasses any
law passed 'after the fact,' [;thus,] it has long been recognized

by . . . [the Supreme] Court that the constitutional prohibition

on ex post facto laws applies . . . to penal statutes which

disadvantage the offender affected by them." Collins v.

Youngblood, 497 U.S. 37, 41 (1990). "[T]wo critical elements

must be present for a criminal or penal law to be ex post facto:

it must be retrospective, that is, it must apply to events

occurring before its enactment, and it must disadvantage the

offender affected by it." Weaver v. Graham, 450 U.S. 24, 29

(1981). Thus, the Constitutional prohibition against ex post

facto laws "forbids the application of any new punitive measure

to a crime already consummated." Lindsey v. Washington, 301 U.S.

397, 401 (1937).

The Constitution of Virginia also mandates "that the General

Assembly shall not pass . . . any ex post facto law." Art. I,

§ 9. The following principle was stated long ago by the Supreme

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Court of Appeals of Virginia:
[T]he phrase ex post facto law, as used in
the constitution, is . . . applicable . . .
to criminal and penal laws, which impose a
punishment for previous acts which were not
punishable at all when committed, or not
punishable to the extent or in the manner
prescribed. So that ex post facto laws
relate to penal and criminal proceedings
which inflict punishment or forfeitures.

Town of Danville v. Pace, 25 Gratt. (66 Va.) 1, 9 (1874).

In this case, the trial judge ordered "as a part of the

sentence imposed upon [Kitze's] conviction" that Kitze register

with the State Police and maintain a current registration. I

believe that the sentencing requirement, mandated by Code
§ 19.2-298.1(A), is penal in character and is an ex post facto

law when applied to persons who committed offenses prior to July

1, 1994. "The critical question . . . is whether the new

provision imposes greater punishment after the commission of the

offense, not merely whether it increases a criminal sentence."

Weaver, 450 U.S. at 32 n.17. Code § 19.2-298.1(A) requires the

sentencing judge to order registration as an incident of

conviction. The statutory requirement imposes a burden only by

virtue of the felony conviction, and it "makes more onerous the

punishment for crimes committed before its enactment." Id. at

36. Registration as a sex offender is a mandatory requirement to

be imposed by the sentencing judge following each felony

conviction, and it may be enforced by criminal contempt or by any

other power available to the criminal process.

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 In an early case, the United States Supreme Court stated

that the "deprivation of any rights, civil or political,

previously enjoyed, may be punishment." Cummings v. Missouri, 71

U.S. 277, 320 (1867). Indeed, state imposed "registration has

traditionally been viewed as punitive." State v. Noble, 829 P.2d

1217, 1222 (Ariz. 1992). See also State v. Payne, 633 So. 2d

701, 703 (La. App. 1993), cert. denied, 637 So. 2d 497 (La.

1994).
The constitutional prohibition against ex post facto laws

extends to all penalties and punishments; it does not just apply

to terms of imprisonment. Any changes in the law which infringe

upon "substantial personal rights" are ex post facto violations.

Malloy v. South Carolina, 237 U.S. 180, 183 (1915). Indeed,

insubstantial changes in fines and other penalties imposed at

sentencing have been found to be violative of the prohibition

against ex post facto laws. See Matter of Appeal in Maricopa

County Juv. Action, 677 P.2d 943, 946 (Ariz. App. 1984)(Statute

disadvantages an offender and therefore violates the

constitutional prohibitions against ex post facto laws when it
requires Court to levy a "rehabilitati[ve] . . . monetary

assessment" not in effect at the time the offense was committed);

Eichelberger v. State, 916 S.W.2d 109, 112 (Ark. 1996)

(retroactive increase in restitution requirements violated

prohibitions against ex post facto laws); People v. Rayburn, 630

N.E.2d 533, 538 (Ill. App. 1994)(statute requiring levy of

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mandatory assessment for the family abuse fund upon conviction

was an ex post facto increase in punishment); State v. Kaster,

469 N.W.2d 671, 673-74 (Iowa 1991)(ten dollar increase in a civil

damages assessment that was required to be levied upon a person

convicted of unlawfully taking fish was a prohibited ex post

facto enhancement of punishment); State v. Short, 350 S.E.2d 1, 2

(W. Va. 1986)(change in statute after date of offense that

granted the ability to enforce an order of restitution beyond the

period of probation violated the prohibition against ex post
facto laws).

Citing People v. Starnes, 653 N.E.2d 4 (Ill. App. Ct.),

appeal denied, 657 N.E.2d 635 (1995), the majority rules that

registration requirement is not punishment when imposed as a part

of a criminal sentence. Starnes, held, however, "that defendant

has waived his constitutional challenge." 653 N.E.2d at 6. The

portion of the opinion relied upon by the majority is pure dicta.

Furthermore, I disagree with the majority's view that

"registration is merely a remedial aspect of a sex offender's

sentence." While registration may serve a remedial purpose under

certain circumstances, when it is imposed as a requirement of a

felony sentencing order it also "disadvantage[s] the offender,"

as does requiring the defendant to pay fines or restitution,

Weaver, 450 U.S. at 29, and therefore, constitutes punishment.

Thus, applying Code § 19.2-298.1 retroactively to Kitze increased

his punishment and violated the ex post facto clause.

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 By extending the scope of Code § 19.2-298.1(A) to persons

convicted on or after July 1, 1994, for a proscribed felony

committed before July 1, 1994 (the effective date of the act),

the General Assembly enacted an ex post facto law. As to Kitze,

the imposition of that requirement is a punishment for a past

criminal act.

For the foregoing reasons, I would hold that the statute's

application to Kitze is unconstitutional as a violation of the ex
post facto clauses of both the United States and Virginia

Constitutions.

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