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Maine Supreme Court: SORNA Ruled Ex Post Facto Punishment for Defendant

by Anthony Accurso

In a decision issued August. 13, 2020, the Maine Supreme Judicial Court held that the Sex Offender Registration and Notification Act of 1999 (“SORNA of 1999”) was unconstitutionally applied to a defendant in violation of the Maine and U.S. Constitutions’ ex post facto provisions.

Craig A. Porter moved his camper to a friend’s property in Dresden, Maine, in May 2018 and did not notify the local sheriff’s office of the change. Proctor had prior sex offenses and was thus indicted in November 2018 for failing to register in violation of 34-A M.R.S. § 11222 (1-B) (2020). Proctor was convicted and sentenced to 90 days’ imprisonment. The execution of the sentence was stayed pending resolution of his appeal as to whether SORNA of 1999 was unconstitutional as applied to him.

In October 1990, Proctor was convicted of four counts of unlawful sexual contact in violation of 17-A M.R.S.A. § 255 (Supp. 1990). He was sentenced to five years of imprisonment, with all but one year suspended and four years of probation. However, he was not then required to register as a sex offender because Maine did not pass its first registration law until 1991 (“SORNA of 1991”).

In November 1992, Proctor was convicted of gross sexual assault in violation of 17-A M.R.S.A. § 253 (Supp. 1992). He was sentenced to 10 years of imprisonment, with five years suspended and four years of probation.

SORNA of 1991 required imposition of a duty to register but allowed a court to waive the requirement where it found “good cause” to do so. Proctor was not required to register as part of his criminal sentence.

SORNA of 1999 was enacted and created a tiered system where “sex offenders” were required to register for 10 years, and “sexually violent predators” were required to register for life. A 2001 amendment to the law “made the law apply retroactively to all persons sentenced for sex offenses or sexually violent offenses on or after June 30, 1992, and before Sept. 18, 1999.” State v. Letalien, 985 A.2d 4 (Me. 2009). This amendment applied to Proctor’s November 1992 conviction, requiring him to register for life.

A 2005 amendment was passed, which retroactively applied “to all sex offenders sentenced on or after Jan. 1, 1982.” Doe v. Williams, 61 A.3d 718 (Me. 2013). This applied to Proctor’s 1990 convictions.

Both the U.S. Constitution (article I, § 10, cl. 1) and the Maine Constitution (art. I, § 11) prohibit ex post facto laws. A statute “violate[s] the prohibition against ex post facto laws if it: (1) punishes as criminal an act that was not criminal when it was done, (2) makes more burdensome the punishment for a crime after it has been committed, or (3) deprives a defendant of a defense that was available according to law at the time the act was committed.” Letalien.

As a result of a 2003 amendment, registration was no longer tied to criminal sentencing. “In light of this and other provisions,” SORNA of 1999 was ruled as “civil and regulatory in nature,” not criminal. Doe v. Anderson, 108 A.3d 378 (Me. 2015). Because it was deemed civil, it could be applied retroactively but with certain caveats.

In Williams, the Maine Supreme Court allowed for retroactive application of SORNA to crimes committed before SORA of 1991 “because their sentences were not subject to any sex offender registration statutes, and, therefore, the retroactive application of SORNA of 1999 did not modify their sentences.” However, in Letalien and Anderson, SORNA of 1999 was ruled unconstitutional as applied to those defendants because it increased the length of registration or imposed registration where none was required as part of a sentence previously imposed, which “modified and enhanced a portion of [the defendant’s] criminal sentence.” Letalien.

In comparison, the Court found “the effect of applying SORNA of 1999 to Proctor’s 1992 conviction appears to be a retroactive enhancement of the sentence imposed” and is thus unconstitutional.

However, the limited record was vague as to whether Proctor would have still been required to register in 2018 as a result of his 1990 convictions.

Accordingly, the Court vacated Proctor’s conviction and remanded for a hearing regarding that registration obligation, a new trial, or both. See: State v. Proctor, 237 A.3d 896 (Me. 2020). 

Related legal case

State v. Proctor

 

 

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