Consequences of Convictions for Sex Crimes

Transcription

1 Consequences of Convictions for Sex Crimes Sex Offender Registration Act, Sex Offender Commitment Act, Lifetime Supervision for Sex Offenders SORA 29 Chapter 40 1

2 Sex Offender Registration Act (SORA): Who does this apply to? see statute for lists of offenses. back 40 to remember chapter 40 Two sections to check with different relevant dates Ex post facto not apply as of the initial date, pled or found guilty of, on probation, parole or incarcerated or has to register under the laws of another state January 1, 1997 Section 1A Crimes that ARE sex related: Sexual Assault Sexual assault of a child Sexual abuse of a vulnerable adult Visual depiction of sexually explicit conduct of a child Possessing visual depiction of sexually explicit conduct of a child as a participant or portrayed observer Debauching a minor (minor = under 17 for this statute) 2

3 January 1, A that may not be sexual or have extra elements Kidnapping of a minor incest of a minor pandering of a minor false imprisonment of a minor criminal enticement child enticement by means of electronic communication 1 B January 1, 2010 plea or found guilty date Crimes that have sexual elements: sex abuse of an inmate or parolee sex abuse of a protected individual Incest enticement by electronic communication Unlawful intrusion if victim is a minor (separate statute) 3

4 Crimes "not sexual in nature" 1 B sexual contact or penetration present in the record can consider factual basis/presentence, but Defendant entitled to rebut and present evidence, even if pled and proof by clear and convincing evidence, decided by court, not jury. 1 B January 1, 2010 not Sexual in elements If sexual penetration or contact in any homicide: 1 and 2 Murder, Manslaughter Stalking Kidnapping False imprisonment 1, 2, 3 Assault 4

5 State v. Norman Notice and Due Process Factual Basis PSI Even if not convicted of a listed offense, Defendants have to register if convicted of: Attempt or Solicitation Aiding or abetting Accessory Or conspiracy to commit a listed offense WATCH YOUR PLEA OFFERS. 5

6 Misdemeanor 15 years Annual + Felony 25 years Biannually + 6

7 Aggravated Offenses Lifetime registration quarterly AGGRAVATED OFFENSE (1) Aggravation amended in until 2010 said "use of force or the threat of serious violence" see State v. Alfredson, 282 Neb N.W.2d 153 (Neb. 2011) Ex post facto 7

8 Aggravation = after January 2010 penetration or direct genital touching of 1)13 year old or over without consent, 2)or victim under age 13 3)or mentally or physically incapable victim. Due to lifetime supervision scenario, entitled to jury & proof beyond a reasonable doubt on this issue. State v Balvin I and II 8

9 Registered sex offender; other criminal convictions; limitation on or denial of custody or access to child; presumption; modification of previous order. (1)(a) No person shall be granted custody of, or unsupervised parenting time, visitation, or other access with, a child if the person is required to be registered as a sex offender under the Sex Offender Registration Act for an offense that would make it contrary to the best interests of the child for such access or for an offense in which the victim was a minor or if the person has been convicted under section , , , , or , unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record. (b) No person shall be granted custody of, or unsupervised parenting time, visitation, or other access with, a child if anyone residing in the person's household is required to register as a sex offender under the Sex Offender Registration Act as a result of a felony conviction in which the victim was a minor or for an offense that would make it contrary to the best interests of the child for such access unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record. State v. Skaggs 9

10 what does SORA require? judges notification form Where=habitual living, temporary domicile, employment over 14 days, school, incarceration homeless= every 30 days what= phone numbers, licenses, vehicles, aliases, travel and immigration docs verification by Nebraska State Patrol approved form 10

11 Where does an offender comply? State Patrol: first registration, and notification docs. County Sheriff: verification requirements and changes City: can impose residential restrictions on sexual predators is required to register under the SORA, who has committed an aggravated offense and who has victimized a person eighteen years of age or younger.) 11

12 Practice points not a penalty, civil. No ex post facto arguments or excessive sentence arguments crimes "not sexual in nature", notice and hearing before judge, not jury. make bargain re: factual basis, waive presentence, call witnesses. clear and convincing evidence court required to have defendant sign notice of registration, no remedy if not done. Even if plead, jury if aggravators not in elements of the crime. State v Payan 277 Neb 663, 765 N.W. 2nd 192 (2009) Aggravation amended in Aggravation from 2006 until 2010 = "use of force or the threat of serious violence". Date of offense may make an aggravation hearing relevant. See State v. Alfredson, 282 Neb N.W.2d 153 (Neb. 2011) 12

13 Civil Commitment SOCA CIVIL COMMITMENT Convicted Sex Offender Act who does this apply to? convicted of sexual assault 1, 2,3 sexual assault of a child 2 or 3 incest, or attempt to commit sexual assault 1 and sentenced to a term of imprisonment in a Department of Correctional Services adult correctional facility. Crimes not sexual in nature not listed Try for probation or less than a year to avoid second prong. 13

14 requires that the sentencing court notify the Defendant in writing: That the Defendant shall be subject to a civil commitment evaluation prior to release, Defendants should read and sign the form at sentencing Form should be retained. Convicted Sex Offender Act: what happens within 60 days, evaluated for treatment, offender can appeal to District Court if found not appropriate for treatment but must hire own counsel. If appropriate, treatment must start no later than 2.5 years prior to parole eligibility date, can go to HHS for treatment no notice required from court during conviction phase 14

15 Catch All : Notice to County Attorney statute requires notice of release from probation or parole or incarceration to County Attorney of ANYONE who has to register, 90 days before eligible and the County Attorney must notice AG if filing commitment at least 45 days from release. Mentally ill dangerous people can be committed by the Board of Mental Health under Dangerous Sex Offender eval required DCS orders eval 180 days before release per DCS must send findings to AG, County Attorney not later than 150 days prior to release whether or not individual is a dangerous sex offender since done at DCS, if not in prison, not likely to be brought up 15

16 Dangerous Sex Offender a) a person who suffers from a mental illness which makes the person likely to engage in repeat acts of sexual violence, who has been convicted of one or more sex offenses, and who is substantially unable to control his or her criminal behavior or b) a person with a personality disorder which makes the person likely to engage in repeat acts of sexual violence, who has been convicted of two or more sex offenses, and who is substantially unable to control his or her criminal behavior; Who must be evaluated 1 sexual assault on child or 1 sex assault See list of for list of crimes where two or more means must be evaluated (mostly crimes against children) those who refused or failed to participate in treatment and offended against a minor must have eval or failure to register if failed to register in another state 16

17 Practice points although dangerous offenders are usually at DCS, avoiding pleas to those listed offenses or going for county time instead of State time will help avoid commitment advise client to get treatment done a.s.a.p.. ask client if failed to register in another state if you have a SOCA case because they may be committed. Lifetime Supervision 83 Art 1 17

18 LIFETIME SUPERVISION et. seq. who it applies to: Crime committed after July 14, 2006 (ex post facto applies) 1 sexual assault of child prior conviction for a registrable offense so this is 2nd or convicted of aggravated offense per (finding of aggravation must be appealed on direct appeal) State v Balvin I and II 18

19 what does it entail? maybe nothing, risk assessment to be done. See State v. Schreiner, 276 Neb393,754N.W.2d72 (2008) Least restrictive conditions to keep safety drug testing, reporting and living/working restrictions, electronic monitoring, ANYTHING can be part of supervision (polygraphs?) can appeal terms of supervision 83 1,104. Public Defender CAN be appointed if not comply, penalties included possible commitment, class 4 felony first offense, class 3 for second requires that the sentencing court notify the Defendant in writing: That the Defendant shall be subject to lifetime supervision, That the Office of Parole Administration shall do an assessment That violations can be a new offense That they can challenge requirements Defendants should read and sign the form at sentencing Form should be retained. 19

20 practice points fight aggravation finding at/before sentencing. Unlike SOR, entitled to a jury finding of aggravation where not included in elements, even if client pleads. This is different than "non sexual offense" issue, which is decided by judge. Requires proof beyond a reasonable doubt. aggravation =direct appeal subsequent offense =not ripe for appeal until done serving sentence DCS can find second offence without court finding, if client has prior, advise of this consequence ex post facto argument not ripe until sentence served, since we may be appointed, keep abreast of this possible issue. 20

21 Conclusion, Basics to Check: nature of the offense Whether there is evidence that a court can find penetration or contact if not sex crime by elements Whether crime involved penetration without consent or of a victim under 13 or incapacitated Whether your client has a prior registrable offense Whether a SORA client has a SORA conviction in another state Whether facts are to be tried to judge or jury 21