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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