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If you are convicted of a sex crime, you will likely have to register as a sex offender. A.R.S. Section 13-3821 specifically enumerates all the Arizona offenses that require mandatory registration. The list is long. What is registration? And can you unlock the requirement? The short answer is that once convicted of a sex crime, and once you register as a sex offender, you may be locked in for life. This area of the law can be complex and not easy to follow but let me try to explain. Arizona's registration statute is codified in A.R.S. Section 13-3821, which states:
A. A person who has been convicted of or adjudicated guilty except insane for a violation or attempted violation of any of the following offenses or who has been convicted of or adjudicated guilty except insane or not guilty by reason of insanity for an offense committed in another jurisdiction that if committed in this state would be a violation or attempted violation of any of the following offenses or an offense that was in effect before September 1, 1978 and that, if committed on or after September 1, 1978, has the same elements of an offense listed in this section or who is required to register by the convicting or adjudicating jurisdiction, within ten days after the conviction or adjudication or within ten days after entering and remaining in any county of this state, shall register with the sheriff of that county:
1. Unlawful imprisonment pursuant to section 13-1303 if the victim is under eighteen years of age and the unlawful imprisonment was not committed by the child's parent.
2. Kidnapping pursuant to section 13-1304 if the victim is under eighteen years of age and the kidnapping was not committed by the child's parent.
3. Sexual abuse pursuant to section 13-1404 if the victim is under eighteen years of age.
4. Sexual conduct with a minor pursuant to section 13-1405.
5. Sexual assault pursuant to section 13-1406.
6. Sexual assault of a spouse if the offense was committed before August 12, 2005.
7. Molestation of a child pursuant to section 13-1410.
8. Continuous sexual abuse of a child pursuant to section 13-1417.
9. Taking a child for the purpose of prostitution pursuant to section 13-3206.
10. Child prostitution pursuant to section 13-3212, subsection A or subsection B, paragraph 1 or 2 committed before August 9, 2017.
11. Child sex trafficking pursuant to section 13-3212, subsection A or subsection B, paragraph 1 or 2 committed on or after August 9, 2017.
12. Commercial sexual exploitation of a minor pursuant to section 13-3552.
13. Sexual exploitation of a minor pursuant to section 13-3553.
14. Luring a minor for sexual exploitation pursuant to section 13-3554.
15. A second or subsequent violation of indecent exposure to a person who is under fifteen years of age pursuant to section 13-1402.
16. A second or subsequent violation of public sexual indecency to a minor who is under fifteen years of age pursuant to section 13-1403, subsection B.
17. A third or subsequent violation of indecent exposure pursuant to section 13-1402.
18. A third or subsequent violation of public sexual indecency pursuant to section 13-1403.
19. A violation of section 13-3822 or 13-3824.
20. Unlawful age misrepresentation.
21. Aggravated luring a minor for sexual exploitation pursuant to section 13-3560.
22. Sexual extortion pursuant to section 13-1428 if the victim is under fifteen years of age.
A convicted sex offender must, within 10 days of being placed on probation, go to the sheriff's office in the county he or she lives and register as a sex offender; Meaning filling out paperwork as to where the convicted sex offender is currently living. Every time the sex offender moves, the sex offender must re-register the new address.
Failing to register is a class 4 felony offense. A.R.S. Section 13-3824 states: "A person who is subject to registration under this article and who fails to comply with the requirements of this article is guilty of a class 4 felony." A class 4 felony carries a possible prison term of a super-minimum of 1 year, a presumptive term of 1.5 years and a super-aggravated term of 3.75 years. If you are homeless, you still must register the cross-streets where you usually sleep as a homeless person. I am not kidding.
Arizona law seems to provide only two statutory exceptions to the registration requirement.
The first exception is A.R.S. Section 13-3821(G), which states: "The court may order the termination of any duty to register under this section on successful completion of probation if the person was under eighteen years of age when the offense for which the person was convicted or adjudicated guilty except insane was committed." If you were a minor at the time of the crime and if you successfully are terminated from probation, the court has the discretion to terminate the requirement to continue to register as a sex offender.
The second exception is found in A.R.S. Section 13-3826, which states:
A. A defendant who is convicted of a violation of section 13-1405, who is required to register pursuant to section 13-3821 and who successfully completes a term of probation may petition the court for an order to terminate any duty to register and shall serve a copy of the petition on the prosecutor. In the petition, the defendant shall avow, under penalty of perjury, all of the following:
1. The defendant was under twenty-two years of age at the time the offense was committed.
2. The victim was fifteen, sixteen or seventeen years of age at the time of the offense.
3. The sexual conduct was consensual.
4. The defendant did not violate any of the sex offender terms of the defendant's probation.
5. The defendant has not subsequently committed another felony offense or any offense included in chapter 14 or 35.1 of this title.
6. A court has not determined that probable cause exists to believe the defendant is a sexually violent person pursuant to title 36, chapter 37 or that a sexually violent person proceeding pursuant to title 36, chapter 37 is not currently pending.
7. The violation did not involve more than one victim.
8. The defendant was not sentenced to a term of imprisonment in the state department of corrections for the offense for which the defendant was required to register.
B. On receipt of the petition, the court shall set a hearing and provide sufficient notice to the state to allow victim notification. The state has the burden of establishing by a preponderance of the evidence that a factor listed in subsection A of this section has not been met. At the hearing, any party may introduce any reliable and relevant evidence, including hearsay evidence. Before ruling on the petition, the court must provide all parties, including the victim, with the opportunity to be heard.
C. The court shall deny the petition if the court finds that any factor listed in subsection A of this section is not met.
D. Notwithstanding subsection C of this section, the court may deny a petition if the court finds that a denial is in the best interests of justice or tends to ensure the safety of the public.
A.R.S. Section 13-405 is Sex Conduct with a Minor. The Defendant must have been under the age of 22 at the time of the offense, successfully have completed probation and the victim had to have been 15, 16, or 17 at the time of the offense. The sex must have been "consensual" at the time too. The statute delineates a long laundry list that the defendant must meet too. It is not an easy exception to meet.
So, what is your remedy if you do not fall into either of these two limited exceptions? I do not know. In researching this issue, I found and unpublished case. An unpublished case cannot be used for precedent. An unpublished case cannot be cited as controlling law when arguing before a trial court. However, an unpublished case can be valuable in determining how the court of appeals feels about a certain issue.
In State v. Guillermo Leon Cortes, 1CA-CR14-0368 (Filed 2-12-2015), the defendant was on lifetime sex registration. He petitioned to have his conviction set aside (meaning taken off his official record), pursuant to A.R.S. Section 13-907. The law actually prohibited the set aside of the crime. The trial court made a mistake and granted the set aside. The defendant then used the set aside to argue that his registration requirement should be terminated. The court of appeals rejected this argument stating the following:
¶10 The Legislature has consistently excluded individuals subject to lifetime sex offender registration from eligibility to set aside the conviction that triggered registration. See A.R.S. § 13-907(B)(3) (1991); A.R.S. § 13-3821(A) (1991); A.R.S. § 13-907(D)(2) (2014). This wholesale exclusion of individuals subject to registration from eligibility for relief under § 13-907 evidences legislative intent that the statute not be used as a basis for providing relief from registration under § 13-3821.
¶11 Furthermore, the term "disability," as used in § 13-907 and as defined by case law, does not include affirmative obligations, such as the obligation to register as a sex offender. Although the Legislature did not expressly define "disability" for purposes of A.R.S. § 13-907, the term generally means a "legal incapacity or disqualification," see Zaputil, 220 Ariz. at 428, ¶ 12, 207 P.3d at 681 (citation omitted), and the registration requirement itself does not result in any legal incapacity or disqualification because it "does not affirmatively inhibit or restrain an offender's movements or activities." State v. Noble, 171 Ariz. 171, 176-77, 829 P.2d 1217, 1222-23 (1992) (holding that sex-offender registration is regulatory, rather than punitive for purposes of ex post facto analysis).
¶12 Although Cortes argues in his reply that he has suffered an impingement of his constitutional privacy rights because of the disclosures he must make in his registration, he does not explain or provide authority for why the required disclosures constitute a "legal disqualification or incapacity." Accordingly, we conclude that the lifetime registration requirement of § 13-3821 is not a "disabilit[y]" from which Cortes was relieved by operation of A.R.S. § 13-907.
¶13 Finally, even assuming the lifetime registration requirement under A.R.S. § 13-3821 can be viewed to conflict with the provisions for relief available under A.R.S. § 13-907, the more specific statute-here § 13-3821-is controlling. See Hall, 234 Ariz. at 376, ¶ 10, 322 P.3d at 193 ("In situations where a general statute conflicts with a specific one, `the specific governs.'") (citation omitted).
While § 13-907 establishes requirements for setting aside convictions generally, § 13-3821 is tailored to the specific details of registration. Moreover, § 13-3821 expressly enumerates the only circumstances under which an individual can be relieved of the registration requirement, and the statute details the individuals for whom registration is not a lifetime requirement. See A.R.S. § 13-3821(D), (F), (G), (H); see also Fushek, 218 Ariz. at 291, ¶ 23, 183 P.3d at 542 ("[O]nce imposed, sex offender registration is a lifelong obligation."); Op. Ariz. Att'y Gen. I00-030 (noting that, with limited, enumerated exceptions, "the statutes governing sex offender registration do not provide a mechanism for a court to release from the registration requirement an offender who is statutorily required to register").
Because Cortes does not fall into any of the categories delineated by § 13-3821, the superior court lacked authority to relieve him of the duty to register, and the court properly denied Cortes's request for relief.
This area of the law is complex and reading and understanding an appellate decision is not always easy. In a nutshell, the court ruled that our legislature has not provided a specific statute that allows termination of registration, other than the two limited exceptions that I discussed previously. The court ruled that the set aside statute did not confer the right to petition termination of registration (remember too that the court wrongly granted a set aside in Cortes' case). The court also cited another decision, State v. Fushek, 218 Ariz. 285 (Ariz. 2008), for the proposition that registration as a sex offender is for life in Arizona.
However, there is a valid argument that Fushek is not controlling on this issue. In law school, students are taught to determine what is the "holding" of a case. The holding is the central issue that is being contested. Any statements made by a court during the discussion is considered "dictum", or not controlling authority.
In Fushek, the central issue contested was whether a defendant had a right to a jury trial on misdemeanor charges when the State applied a statute making the crimes sexually motivated. See A.R.S. Section 13-118.
Dale Fushek was a priest who was charged with 10 misdemeanors and the State filed an allegation that he was sexually motivated when he committed the crimes. The central issue then was whether 9 of the charges were jury eligible. Fushek wanted a jury trial (with 6 citizens judging him). He did not want a bench trial before one judge. The Arizona Supreme Court finally decided that Fushek was entitled to a jury trial. The Arizona Supreme Court, in Fushek, did not specifically rule on a case where the defendant challenged the lifetime registration requirement.
Until such time that a defendant squarely challenges the law, my answer is that Arizona courts will deny any request to terminate the registration requirement that do not fall within the two narrow exceptions that I have discussed. However, I believe that there are valid arguments to be made. Arizona courts now have the power to terminate lifetime probation. Why not registration too? At some point, the right case will be brought before our supreme court and we may finally have a definitive answer.
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Robert J. Campos, Criminal Law Specialist