Pleas and sex offender laws
It's never too late to take a second look. Three weeks ago in State v. Creed, the 8th District rejected a claim that Creed's plea to three counts of sexual battery was invalid because the judge failed to tell him that, as a sex offender, he couldn't live within 1,000 feet of a school, day care center, park, swimming pool, bus shelter, apartment building, or any other place nominally inhabitable by the human race. (Okay, that's a bit of an exaggeration, but not much.) The court rejected it on the basis of its 1999 decision holding that sex offender laws were remedial, not punitive. Thus, according to the court, the restrictions were collateral matters, and the trial judge had no duty to advise the defendant about them.
In my weekly review of the 8th District decisions, I wrote that this ignored the Supreme Court's decision last year in State v. Williams, which held that the restrictions in the Adam Walsh Act had crossed the line from remedial to punitive. The court apparently came to the same conclusion; after sua sponte reconsideration, this week it issued a new opinion in Creed.
Meet the new boss, same as the old boss. The result was the same, the court finding that the trial judge's advising Creed that, as a Tier III sex offender, he "would be subject to various reporting and notification requirements for life" was sufficient. Let's take a closer look at that.
When I'd written about the original opinion in Creed, I'd also mentioned the Supreme Court's decision in Padilla v. Kentucky (discussed here), which had reversed Padilla's conviction because he'd been incorrectly advised by his lawyer that his plea to drug trafficking wouldn't impact his immigration status. There's some analogy between Padilla and Creed. In Padilla, the Court based its decision on the fact that, in many cases, the immigration consequences of a conviction can be more severe than the actual criminal penalties. That's also true of sex offender laws. Drunkenly grabbing a woman's butt in a bar can result in a prosecution for sexual imposition, a third degree misdemeanor, but the maximum sixty-day jail sentence pales in comparison to the 15-year sex offender registration requirement for that offense. Plus, immigration consequences are unquestionably collateral; as Creed recognized, the registration requirements and restrictions are part of the punishment for a sex offense.
Padilla had been decided on an ineffective assistance of counsel claim, and there's an urge to think that sex offender requirements should be analyzed in the same way: it's up to the lawyer to fully advise a defendant pleading guilty to a sex offense of precisely how that will impact him. This argument fails for a number of reasons. First, it conflates the 6th Amendment's right to effective counsel with the 5th Amendment's requirement that due process requires a guilty plea to be made knowingly, intelligently, and voluntarily. A trial judge isn't going to be able to avoid the Rule 11(C)(2)(c) requirements that he advise a defendant of his various constitutional rights by fobbing that task off onto the defense attorney; the argument that it's counsel's duty to tell a client about what being a sex offender means shouldn't fare any better. As I wrote a while back in the context of the Padilla situation, "the roles of counsel and judge in a plea hearing are complementary, not supplementary: complete performance by one cannot obviate defective performance in the other."
Second, the immigration consequences of a conviction depend upon a certain extent on the defendant's background, and that usually wouldn't be available to the judge at the time he takes the plea. Sex offender requirements, however, are wholly dependent on the offense. The registration requirements for a Tier III offender are the same, whether the defendant's a first-time offender or a career criminal, and regardless of the circumstances of the crime. At the time the defendant enters his plea, the trial judge is fully aware of the sex offender consequences of that plea under the AWA.
Before we go any further, though, there's another argument that has to be dealt with, one touched upon in Creed. While the court must strictly comply with its duty to advise a defendant of his constitutional rights, advisement of non-constitutional rights requires only substantial compliance, and the defendant has to show prejudice; that is, he must demonstrate that he wouldn't have entered the plea had he been given the correct information. Much of that case law arose in the context of post-release controls, and it was relatively easy to conclude that someone who was going off to prison wouldn't have been dissuaded from entering a plea by being told that he would be supervised after his release. Obviously, sex offender registration requirements are far more onerous than that, and it would play a much more important part in a defendant's calculus of whether to plead than would post-release control.
Creedestablishes that a judge does have a duty to advise the defendant during the plea that he will be classified as a sex offender. That leaves the question: just how far does the judge have to go in doing so? Creedseems to set the bar very low, holding that the court's telling Creed he'd be subjec to various reporting and registration requirements for life "substantially complies with Crim.R. 11(C)(2)(a)."
Creed, though, had argued only that the judge's failure to tell him that he couldn't live within 1,000 feet of a school voided his plea, and the court's holding should be read in that context. After all, Creed establishes that we're talking about punishment, and no appellate court would hold that a judge, by telling a defendant that he "would be subject to a prison sentence," could dispense with having to telling him the parameters of the specific prison sentence he was facing.
On the other hand, it's unreasonable to require a judge to recite the entire litany of requirements and potential penalties a sex offender faces. The basic requirements -- length and frequency of registration and reporting, the community notification requirements for Tier III offenders, that failure to register or report results in the commission of a crime, and that the classification limits where an offender can reside -- would arguably be sufficient.
In any event, it's likely that the court's second opinion in Creed won't be the last on this issue.