IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 37851
)
STATE OF IDAHO, ) Boise, December 2011 Term
)
Plaintiff-Appellant, ) 2012 Opinion No. 61
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v. ) Filed: April 11, 2012
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LONNIE RAY FORBES, ) Stephen W. Kenyon, Clerk
)
Defendant-Respondent. ) THIS IS A SUBSTITUTE OPINION.
) THE COURT’S PRIOR OPINION
) DATED JANUARY 10, 2012 IS
_____________________________________ ) HEREBY WITHDRAWN.
Appeal from the District Court of the Fourth Judicial District of the
State of Idaho, Ada County. Hon. Deborah A. Bail, District Judge.
The decision of the district court is reversed.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for appellant.
Molly J. Huskey, Idaho Appellate Public Defender, Boise, for
respondent.
__________________________
W. JONES, Justice
I. NATURE OF THE CASE
This case considers whether retroactive application of an amendment to I.C. § 19-2604(3)
(“the amendment”), which prohibits dismissal of offenses requiring sex offender registration,
violates the ex post facto clauses of the United States Constitution and the Idaho Constitution
(“the ex post facto clauses”). Because this Court has previously addressed this issue in State v.
Hardwick, 150 Idaho 580, 249 P.3d 379 (2011), the district court erred in holding that retroactive
application of the amendment violated the ex post facto clauses.
II. FACTUAL AND PROCEDURAL BACKGROUND
On January 13, 2003, Lonnie Forbes pleaded guilty to the crime of Attempted Lewd
Conduct with a Minor Child Under Sixteen Years of Age, a felony in violation of I.C. § 18-1508.
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The district court withheld judgment on March 31, 2003, and placed Forbes on probation for a
period of seven years. As a result of his plea, Forbes is required to register as a sex offender
under I.C. § 18-8304(1)(a).
When Forbes committed the crime, I.C. § 19-2604(1) permitted Forbes to request that he
be allowed to withdraw his plea of guilty and to have the case dismissed. 1 The district court was
afforded the discretion to grant Forbes’s request so long as it determined that “at all times
[Forbes] complied with the terms and conditions upon which he was placed on probation.” I.C.
§ 19-2604(1). The district court was also required to determine that “there [was] no longer cause
for continuing the period of probation” and doing so was “compatible with the public interest.”
Id.
On July 1, 2006, I.C. § 19-2604(3) was amended to provide that “[a] judgment of
conviction for a violation of any offense requiring sex offender registration as set forth in section
18-8304, Idaho Code, shall not be subject to dismissal or reduction under this section.” Ch. 157,
§ 1, 2006 Idaho Sess. Laws 473, 473. According to the amendment, a conviction means that “the
person has pled guilty or has been found guilty, notwithstanding the form of the judgment or
withheld judgment.” Id.
On July 21, 2007, Forbes’s probation was amended to unsupervised probation, with all
other terms and conditions of probation remaining in effect. On April 21, 2010, after Forbes
completed all the requirements of his withheld judgment, he moved to set aside his plea of guilty,
pursuant to the withheld judgment, in order to have the charge dismissed and to restore his civil
rights under I.C. § 19-2604(1). The State opposed Forbes’s Motion to Dismiss, asserting that the
amendment barred the relief Forbes sought. On June 23, 2010, the district court entered its
Order granting Forbes’s Motion to Dismiss, holding that I.C. § 19-2604 is an unlawful ex post
facto law as applied to Forbes. As a result, the district court applied the version of I.C. § 19-
2604 in effect at the time of the commission of the crime and the entry of the withheld judgment,
which permitted the dismissal of Forbes’s plea. The State timely filed its Notice of Appeal on
July 6, 2010.
1
When Forbes committed his offense, I.C. § 19-2604(1) provided:
If sentence has been imposed but suspended, or if sentence has been withheld, upon application of
the defendant and upon satisfactory showing that the defendant has at all times complied with the terms and
conditions upon which he was placed on probation, the court may, if convinced by the showing made that
there is no longer cause for continuing the period of probation, and if it be compatible with the public
interest, terminate the sentence or set aside the plea of guilty or conviction of the defendant, and finally
dismiss the case and discharge the defendant . . . .
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III. ISSUES ON APPEAL
1. Whether the amendment applies retroactively to Forbes?
2. Whether retroactive application of the amendment violates the ex post facto clauses of
the United States Constitution and the Idaho Constitution?
IV. Standard of Review
“Constitutional issues are purely questions of law over which this Court exercises free
review.” Meisner v. Potlatch Corp., 131 Idaho 258, 260, 954 P.2d 676, 678 (1998). This Court
also freely reviews issues of statutory interpretation. Big Sky Paramedics, LLC v. Sagle Fire
Dist., 140 Idaho 435, 436, 95 P.3d 53, 54 (2004). “When [this] Court must engage in statutory
construction, it has the duty to ascertain the legislative intent, and give effect to that
intent.” State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688 (1999). “To ascertain the intent
of the legislature, not only must the literal words of the statute be examined, but also the context
of those words, the public policy behind the statute and its legislative history.” Id.
V. ANALYSIS
A. The Amendment Applies Retroactively to Forbes
Forbes contends that the amendment does not apply to him because it contains no express
language suggesting that it is retroactive and because the State has waived this issue by not
separately addressing it in its opening brief. For the former proposition, Forbes cites I.C. § 73-
101, which states, “[n]o part of these complied laws is retroactive, unless expressly so declared.”
The State contends that the amendment does apply to Forbes because it is not an ex post facto
law.
Hardwick has already addressed the issue of whether the amendment is retroactive,
holding that the Legislature, by implication, intended the amendment to apply to offenders who
have already been granted a withheld judgment. Hardwick, 150 Idaho at 582–83, 249 P.3d at
381–82. Furthermore, the relevant language in the amendment provides: “A judgment of
conviction for a violation of any offense requiring sex offender registration as set forth in section
18-8304, Idaho Code, shall not be subject to dismissal or reduction under this section.” Ch. 157,
§ 1, 2006 Idaho Sess. Laws 473, 473. According to the amendment, a conviction means that “the
person has pled guilty or has been found guilty, notwithstanding the form of the judgment or
withheld judgment.” Id. Thus, in light of Hardwick, the amendment clearly applies to Forbes,
who was subject to a withheld judgment after he pleaded guilty to an offense requiring sex
offender registration.
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The State argued that the amendment applied retroactively to Forbes, even though it did
not directly devote a section in its opening brief to this issue, as Forbes would have preferred. In
addressing the issue whether the amendment violates the ex post facto clause, Forbes was surely
put on notice of the State’s argument that the amendment was retroactive in application because
the issues are intrinsically connected. Thus, the State has addressed this issue. Furthermore, this
issue did not need to be addressed because this Court has already determined in Hardwick that
the amendment applies retroactively.
B. Retroactive Application of the Amendment Does Not Violate the Ex Post Facto
Clauses of the United States Constitution and the Idaho Constitution
The State contends that the amendment does not violate the ex post facto clauses because
it is administrative or regulatory. Forbes contends that the amendment is punitive and thus
violates the ex post facto clauses because it results in the entry of an actual judgment of
conviction. In this vein, Forbes contends that the amendment transforms his withheld judgment,
which he contends is akin to probation, into a criminal sentence.
“Ex post facto laws are prohibited by article I, section 9, clause 3 of the United States
Constitution and by article I, section 16 of the Idaho Constitution.” Hardwick, 150 Idaho at 581,
249 P.3d at 380 (quoting Wheeler v. Idaho Dept. of Health and Welfare, 147 Idaho 257, 262, 207
P.3d 988, 993 (2009)). The ex post facto clauses prevent the enactment of “any statute which
punishes as a crime an act previously committed, which was innocent when done; which makes
more burdensome the punishment for a crime, after its commission, or which deprives one
charged with crime of any defense available according to law at the time when the act was
committed . . . .” Wheeler, 147 Idaho at 262, 207 P.3d at 993 (quoting Beazell v. Ohio, 269 U.S.
167, 169–70, 46 S.Ct. 68, 70 (1925)).
This Court has already addressed this issue in Hardwick, 150 Idaho 581–83, 249 P.3d at
380–82, holding that retroactive application of the amendment was not punitive, and, therefore,
not an ex post facto law because it effectuated the Legislature’s non-punitive purpose for
enacting the Sex Offender Registration Notification and Community Right–to–Know Act, which
was “to protect communities by requiring sexual offenders to register with local law enforcement
agencies, [regardless if they were previously subject to a withheld judgment], and to make
certain information about sexual offenders available to the public . . . .” 2 Ch. 411, § 2, 1998
2
The Legislature’s purposes for requiring sex offender registration were declared in I.C. § 18-8302 as follows:
The legislature finds that sexual offenders present a significant risk of reoffense and that efforts of
law enforcement agencies to protect their communities, conduct investigations and quickly apprehend
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Idaho Sess. Laws 1275, 1276. Where this Court has previously interpreted a statute, “the rule of
stare decisis dictates that [this Court] follow [controlling precedent] . . . , unless it is manifestly
wrong, unless it has proven over time to be unjust or unwise, or unless overruling it is necessary
to vindicate plain, obvious principles of law and remedy continued injustice.” Houghland
Farms, Inc. v. Johnson, 119 Idaho 72, 77, 803 P.2d 978, 983 (1990). Because Hardwick was
decided after the district court rendered its decision in this case, the district court addressed this
issue without the benefit of Hardwick.
Furthermore, although Hardwick was pending when Forbes submitted Respondent’s
Brief on January 31, 2011, the State asserted in Appellant’s Brief, which was filed on September
27, 2010, that Hardwick raised these same issues on appeal. After Hardwick was released on
March 17, 2011, the State discussed Hardwick in Appellant’s Reply Brief, which was filed on
March 28, 2011. For the last nine months, Forbes has not asked for an opportunity to provide
additional briefing on appeal to distinguish Hardwick.
As a result of his seemingly careless indifference to the State’s briefs on appeal and this
Court’s holding in Hardwick, Forbes does not point to any other criminal or punitive
consequence of lifetime sex offender registration than what was discussed in Hardwick. As this
Court noted in Hardwick, the amendment does not take away Forbes’s right to seek an
expungement of his conviction because that right did not exist prior to the amendment. See 150
Idaho at 582, 249 P.3d at 381. Furthermore, “[a] final dismissal under Idaho Code § 19-2604(1)
would have the effect ‘of restoring [Forbes] to his civil rights.’” Id. (quoting I.C. § 19-2604(1)).
“Satisfactory completion of probation would also restore [Forbes] to his full rights of citizenship
by operation of law.” Id. (citing I.C. § 18-310(2)). As this Court held in Hardwick, the
amendment’s non-punitive purpose is supported by the Legislature’s decision not to eliminate
these rights. Therefore, because Forbes has not provided argument or authority distinguishing
Hardwick, this Court will continue to hold in accordance with its prior precedent.
VI. CONCLUSION
offenders who commit sexual offenses are impaired by the lack of current information available about
individuals who have been convicted of sexual offenses who live within their jurisdiction. The legislature
further finds that providing public access to certain information about convicted sexual offenders assists
parents in the protection of their children. Such access further provides a means for organizations that
work with youth or other vulnerable populations to prevent sexual offenders from threatening those served
by the organizations. Finally, public access assists the community in being observant of convicted sexual
offenders in order to prevent them from recommitting sexual crimes. Therefore, this state’s policy is to
assist efforts of local law enforcement agencies to protect communities by requiring sexual offenders to
register with local law enforcement agencies and to make certain information about sexual offenders
available to the public as provided in this chapter.
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Because this Court has previously addressed these issues in Hardwick, the district court
erred in holding that retroactive application of amended I.C. § 19-2604 violated the ex post facto
clauses of the United States Constitution and Idaho Constitution. Therefore, the decision of the
district court is vacated and this case is remanded for further proceedings in accordance with this
Opinion.
Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON CONCUR.
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