Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. O'Dell

Superior Court of Delaware, Kent

March 1, 2017

STATE OF DELAWARE,
v.
ROBERT C. O'DELL, Defendant.

          Submitted: February 15, 2017

          Written Decision: March 6, 2017

         Upon the State of Delaware's Motion to Designate the Defendant as a Tier I Sex Offender. Denied. Upon Defendant's Motion for Relief from Sex Offender Designation. Granted.

          Kathleen A. Dickerson, Esquire, Department of Justice, Dover, Delaware; attorney for the State of Delaware.

          Anthony J. Capone, Esquire, Office of the Public Defender, Dover, Delaware; attorney for the Defendant.

          OPINION AND ORDER

          HON. WILLIAM L. WITHAM, JR. JUDGE

         This case centers around a thorny question of statutory construction and interpretation. It forces the Court and the parties to wade once again into the morass of Delaware's sex-offender registration and community notification scheme and to endeavor to bring some measure of certainty and clarity to some of the scheme's inartfully drafted provisions. The statute's confusing language clouds with uncertainty the process by which convicted low-risk sex offenders may ask the Court to relieve them from being designated as offenders.

         Before the Court are Defendant Robert O'DelPs Motion for Relief From Sex Offender Designation and the State's Motion to Designate the Defendant as a Tier I Sex Offender. At the first date scheduled for Mr. O'Dell's sentencing, the Court asked the parties whether its earlier decision in State v. President[1] barred consideration of Mr. O'Dell's motion for relief. The parties requested a continuance to submit memoranda of law. On February 15, 2017, the parties argued their motions before the Court.

         The Court concludes that the statute permits defendants who are convicted of Tier I offenses to move for relief from designation, departing from dicta in State v. President[2] Having determined that Mr. O'Dell may move for relief, the Court finds that he has met his burden of demonstrating by a preponderance of the evidence that he is not likely to pose a threat to public safety if he is released from his registration obligations. The State's Motion to Designate is DENIED and Mr. O'Dell's Motion for Relief is GRANTED.

         FACTS

         Mr. O'Dell was indicted on October 5, 2015 on two counts of Rape in the Fourth Degree arising out of an incident in which he had sexual intercourse with a victim four years his junior. Mr. O'Dell was nineteen at the time of the offense, and his victim was fifteen. According to the State, Mr. O'Dell met his victim online, had phone contact with her, and eventually walked from his home in Delmar, Maryland toward her home in the Dover, Delaware area. The victim and her mother picked him up and brought him to her home, but the mother eventually kicked him out. The victim snuck out of the house and then ran away with Mr. O'Dell. The pair then had sexual intercourse.

         Mr. O'Dell was re-indicted on November 2, 2015 to add a charge of Non-Compliance with Bond for having unauthorized contact with his victim.

         The State and Mr. O'Dell entered into a plea agreement wherein he pleaded guilty to Unlawful Sexual Contact in the Third Degree and Non-Compliance with Bond. The parties submitted motions prior to sentencing. Mr. O'Dell sought relief from designation as a sex offender, and the State sought for the Court to designate Mr. O'Dell as a Tier I offender.

         This is the Court's decision on those motions.

         THE PARTIES' CONTENTIONS

         Mr. O'Dell contends that 11 Del. C. § 4121(d)(6)(a) is ambiguous and contradictory, and that its legislative history indicates that the General Assembly intended to leave an avenue for relief at sentencing for offenders convicted of Tier I misdemeanors. He argues that he is unlikely to pose a threat to public safety based on a psychological evaluation which indicated that he posed a low to moderate risk of reoffense, as well as the presence of various mitigating factors that would make reoffense unlikely.

         The State argues that 11 Del. C. § 4121(d)(6)(a) is unambiguous in that there are circumstances in which a misdemeanor could result in a Tier II or Tier III designation. It points to the facts that Mr. O'Dell traveled a great distance to meet and have intercourse with an underage victim, and that he then contacted her in violation of the terms of his release. Based on these facts, it argues, Mr. O'Dell poses a threat to public safety.

         STANDARD OF REVIEW

         The Court follows a straightforward standard when interpreting and construing statutes. The first issue is to determine whether the statute is ambiguous.[3] A statute is ambiguous when it is "capable of being interpreted in two or more different senses."[4] "If the statute is unambiguous, . . . there is no room for judicial interpretation and 'the plain meaning of the statutory language controls.'"[5]

         But if the statute is ambiguous, "we consider the statute as a whole, rather than in parts, and we read each section in light of all others to produce a harmonious whole."[6]

         A defendant may petition the sentencing court for relief from designation as a sex offender if three elements are satisfied:

a. The Tier II or Tier III offense for which the person was convicted was a misdemeanor and the victim was not a child under 13 years of age; and
b. The person has not previously been convicted of a violent felony, or any other offense set forth in paragraph (a)(4) of this section ....; and
c. The sentencing court determines by a preponderance of the evidence that such person is not likely to pose a threat to public safety if released from the obligations imposed by this section, and by § 4120 of this title.[7]

         DISCUSSION

         Delaware's sex offender registration and notification scheme does provide the possibility of relief from designation for sex offenders accused of Tier I misdemeanors. Mr. O'DelPs petition will be granted because the uncontradicted results of his psychological evaluation show that he is unlikely to reoffend.

         I. The Relief-from-Designation Provision Allows the Possibility of Relief for Defendants Convicted of Tier I Misdemeanors

         In construing the provisions of 11 Del. C. § 4121(d)(6), the Court will review the background of its enactment and the decisional law that Delaware courts have generated thus far. The Court determines, based on an analysis of the text, the application of the canons of statutory construction, and a review of the legislative history, that the relief-from-designation provision permits offenders convicted of Tier I misdemeanors to petition for relief.

         A. Background

         In order to frame the issues surrounding the interpretation of 11 Del. C. § 4121(d)(6), the Court will review the sex offender registration and notification scheme as a whole, the federal and state legislative changes that led to the enactment of Senate Bill 60 in 2007, and the case law that resulted from the enactment of Senate Bill 60.

         1. Delaware's Sex Offender Registration Scheme

         Delaware's sex offender registration scheme contemplates three tiers of sex offenses.[8] For Tier II and Tier III offenses, the statute enumerates the crimes that presumptively fall within each tier.[9] Tier I includes all sex offenses not enumerated within Tier II and Tier III.[10] A comprehensive list of sex offenses that give rise to a registration requirement is also provided within the statute.[11]

         Once an individual is convicted or adjudicated delinquent of any sex offense, "the court shall inform the person that the person shall be designated as a sex offender and that a Risk Assessment Tier will be assigned to that person by the court."[12]Following the sentencing, "the sentencing court shall assign the defendant to the Risk Assessment Tier applicable for the originally charged offense."[13]

         Tier III crimes are among the most serious sexual crimes that an individual might commit, including first and second degree rape.[14] Tier II crimes are serious sexual crimes that nonetheless are not as serious as Tier III offenses, including third degree rape in the absence of certain aggravating circumstances, fourth degree rape, and child pornography offenses.[15] Tier I offenses are unenumerated, but include all sex offenses that are designated as misdemeanors.[16]

         An individual convicted of a misdemeanor sex crime may, under certain circumstances, be assigned to a higher tier. For example, the State may move for a defendant convicted of a Tier I offense to be designated to Tier II "if the sentencing court determines by a preponderance of the evidence . . . that public safety will be enhanced by assigning the offender to Risk Assessment Tier II."[17] Likewise, a defendant convicted of a second Tier I offense within five years of the previous offense will be designated to Tier II.[18] And when a defendant is charged with one tier of offense and ultimately pleads guilty to a lesser included charge of that offense, he will be placed in the tier of the originally charged offense.[19]

         Prior to amendments to the sex offender registration scheme in 2007, an individual could petition the sentencing court for relief from designation prior to sentencing if (1) the offense was a misdemeanor and the victim was not under 13 years of age, (2) the person had not previously been convicted of a violent felony or sex offense, and (3) "[t]he sentencing court determine[d] by a preponderance of the evidence that" the defendant "is not likely to pose a threat to public safety if released from the obligations imposed by this section, and by § 4120 of this title."[20] The provision imposed an additional requirement that a defendant could not petition for relief if the victim was under eighteen unless the defendant was also under eighteen at the time of the offense.[21]

         2. The Sex Offender Registration and Notification Act (SORNA)

         In 2006, Congress enacted the Adam Walsh Child Protection and Safety Act.[22]Title I of the Act was designated as the Sex Offender Registration and Notification Act (SORNA).[23] SORNA was created "to protect the public from sex offenders and offenders against children" by "establish[ing] a comprehensive national system for the registration of those offenders."[24]

         SORNA envisioned state registration requirements covering three tiers of offenders, like Delaware's scheme.[25] Tier II or Tier III offenders were those who committed "offense[s]... punishable by imprisonment for more than one year" that were comparable to or more severe than certain enumerated federal offenses.[26]SORNA did not contain a provision for relief from designation.[27]

         States were given three years to implement SORNA's provisions before their failure to implement them would result in a decrease in certain federal funding.[28]Prompt compliance (within one or two years) would result in bonus payments under the statutorily created grant program.[29]

         3. Senate Bill 60

         In 2007, not long after the enactment of SORNA, the General Assembly considered Senate Bill 60 ("SB 60").[30] The bill's synopsis indicated that it was intended to comply with SORNA's requirements:

This bill amends the existing Megan's Laws in order to conform to recent federal legislative changes required under the 'Adam Walsh Act.'... Other changes are intended to reflect practical concerns based upon Delaware Supreme Court interpretations of the statutes. Outdated hearing and timing requirements are eliminated based upon the compulsory nature of Delaware's Megan's Laws.[31]

         In its original form, SB 60 and its synopsis did not affect the relief-from-designation provision found at 11 Del. C. § 4121(d)(6). After its introduction, an amendment was introduced which would limit relief from designation for offenses where the victim was less than twelve years old.[32] Under the amendment, an offender could not seek relief for a crime against a victim under twelve years of age unless the offender was under eighteen at the time of the offense.[33]

         On the day SB 60 was considered on the floor of the Senate, the first amendment to the bill was stricken and a new amendment was introduced and passed in its place.[34] The new amendment, according to its synopsis, was intended to accomplish the same change to the relief-from designation provision as its predecessor: "This amendment. . . clarifies that no person shall be afforded relief from designation as a sex offender if the victim was less than 12 years old at the time of the crime, unless the person convicted was less than 18 years old at the time of the crime."[35]

         Sponsors of SB 60 in both chambers invited the Chief of Staff of the Delaware Department of Justice to address each chamber on the legislation as it was being considered. Senators and representatives posed questions to the Chief of Staff to clarify the effects of the bill's adoption.

         In responses to questioning in both chambers, the Chief of Staff explained that the bill would preserve an avenue for relief from designation for offenders accused of Tier I misdemeanors.

         In the Senate, a senator asked the Chief of Staff if someone guilty of a Tier I offense would have any recourse if required to register.[36] The Chief of Staff explained that after ten years an offender could petition the Court, but further "you would in that example as a misdemeanor offender be able to ask the Court not to ever designate you as a sex offender, because the victim's over 12, you're over 18, it's a misdemeanor."[37]

         In the House, one representative expressed concern to the Chief of Staff that an eighteen-year-old who committed unlawful sexual contact would not have recourse.[38] The Chief of Staff then explained "If you're under 18 and your victim is as well, you-there is an exception in the law that you do not have to be a registered sex offender, and you can petition for that, actually, at sentencing-"[39] The representative responded, "No, I appreciate that. I was referring to a court case with an . . . actual 18 year old enrolled as a senior in high school."[40] The Chief of Staff responded "Tier I offenders can also ask for the same kind of relief."[41]

         Senate Bill 60 was considered and passed by the Senate on May 1, 2007 and sent to the House, which considered and passed it on May 3.[42] It was signed by the Governor on May 17.[43]

         3. Changes to the Relief-from-Designation Provision

         Senate Bill 60 amended 11 Del. C. § 4121(d)(6) to substantially its current form, adding "Tier II or Tier III" to subparagraph "a" and the end of paragraph "d."[44]It also lowered the victim age restriction, permitting relief where the victim was twelve or older instead of eighteen or older.[45]

         As written, the current relief-from-designation provision permits relief when three elements are met:

a. The Tier II or Tier III offense for which the person was convicted was a misdemeanor and the victim was not a child under 13 years of age; and
b. The person has not previously been convicted of a violent felony, or any other offense set forth in paragraph (a)(4) of this section ....; and
c. The sentencing court determines by a preponderance of the evidence that such person is not likely to pose a threat to public safety if released from the obligations imposed by this section, and by § 4120 of this title.[46]

         It prohibits relief for Tier II or Tier III offenders if the victim was under twelve years old unless the offender was less than ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.