Doe v. Belmar
Doe v. Belmar
Opinion of the Court
John Doe ("Petitioner") appeals from the judgment of the trial court denying his petition for declaratory judgment against Colonel John Belmar, St. Louis County Chief of Police, and Colonel Ronald Replogle, Superintendent of the Missouri State Highway Patrol (collectively, "Respondents") seeking Petitioner's removal from the sex offender registry and destruction of records referencing him contained in the sex offender registry. We affirm.
Petitioner was charged in 1997 with misdemeanor second-degree sexual abuse for subjecting the victim, who was twelve or thirteen, to sexual contact. Petitioner eventually pled guilty to an amended charge of attempted endangering the welfare of a child in the first degree. Specifically, the charging information indicated that Petitioner "attempted to act in a manner that created a substantial risk to the body and health of [the victim], a child less than 17 years old, by having her disrobe in front of him, and such conduct was a substantial step toward the commission of the crime of endangering the welfare of a child and was done for the purpose of preventing [sic]
After a bench trial during which the trial court heard testimony from both Petitioner and the victim, the trial court found that Petitioner was not entitled to removal from the sex offender registry. The trial court concluded that it was required to employ a non-categorical approach and that thereunder, Petitioner must register given the nature of his offense. This appeal follows.
*417For his sole point on appeal, Petitioner claims that the trial court erred in applying a non-categorical, also known as circumstance-specific approach, rather than a categorical approach when determining whether or not Petitioner had an obligation to register as a sex offender. He argues that the non-categorical approach improperly looks beyond the statutory definitions of offenses, is at odds with the language of the federal Sex Offender Registration and Notification Act ("SORNA"), is disruptive to plea bargaining and violates Petitioner's rights under the Fifth and Sixth Amendments to the U.S. Constitution. Petitioner contends the use of the word "convicted" in the relevant section of SORNA rather than a phrase such as "has committed," the importance of honoring the plea bargain process and Fifth Amendment and Sixth Amendment concerns mandate a categorical approach.
We will uphold the judgment of the trial court "unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law." Isom ,
Sex offenders may be required to register in Missouri under SORNA or under Missouri law, the Sex Offender Registration Act ("SORA").
SORNA requires a "sex offender" to "register, and keep the registration current, in each jurisdiction where the offender resides."
*418
Similar to the present case, in Doe v. Isom , this Court reviewed the trial court's decision on a petition for declaratory judgment seeking to remove the petitioner's name from state and federal sex offender registries after the petitioner pled guilty to endangering the welfare of a child. Isom ,
We ultimately elected to follow the non-categorical approach.
The Western District followed a similar approach in Wilkerson v. State , in which the petitioner sought to be removed from the sex-offender registry after pleading guilty to sexual misconduct involving a child.
Based upon this precedent in which both this Court and the Western District have explicitly held that the trial court should apply the non-categorical approach when determining whether petitioners have ever been required to register under SORNA, thereby creating a separate duty to register under SORA, we find no error in the trial court's use of such an approach here. Petitioner tries to avoid this conclusion by including additional arguments for use of the categorical approach not explicitly addressed in Isom and Wilkerson and also not explicitly addressed by the trial court.
In particular, Petitioner argues that the categorical approach follows the text of SORNA in that the use of the word "convicted" in § 20911(1) rather than a phrase such as "has committed" implies that Congress was focused on an individual's convictions irrespective of the underlying facts. Petitioner argues that because SORNA defines a "sex offender" as an individual who was convicted of a sex offense, Congress intended for a reviewing court to look at the fact that an individual was convicted of a sex offense, not the facts underlying the conviction. We are not persuaded. First, this Court in Isom and the Western District in Wilkerson were well-aware of SORNA's definition of "sex offender" at the time of their respective opinions upholding the use of the non-categorical approach. Isom ,
In passing SORNA, Congress left courts with broad discretion to determine what conduct is 'by its nature' a sex offense. Indeed, Congress's stated purpose was to capture a wider range of conduct in its definition of sex offense.... Our review of the language of SORNA confirms our conclusion that Congress cast a wide net to ensnare as many offenses against children as possible.
Wilkerson ,
Petitioner also asserts that the trial court erred in applying the non-categorical approach because use of the categorical approach honors plea bargaining. Petitioner contends that he made the decision to enter into a plea agreement because he had no obligation to register as a sex *420offender. He asserts that for individuals in his situation, "the whole point of pleading guilty to a different offense is to obtain the benefit of not having to register as sex offender." Petitioner further asserts that where an individual pleads to a lesser-included offense, the non-categorical approach subjects him to a mini-trial on, and an enhanced punishment via sex offender registration for, a broader crime than that to which he pled. Petitioner asserts that when a defendant pleads guilty to an offense, he forfeits his right to a trial and admits only the facts contained in the charge, and those are found by the court to be beyond a reasonable doubt. Petitioner argues that applying a non-categorical approach results in some other court making factual findings at the lower evidentiary standard of preponderance of the evidence.
Again, we are not persuaded by these considerations as presented by Petitioner. First, this Court's decision in Isom to apply the non-categorical approach was similarly based on the petitioner's previous guilty plea to endangering the welfare of a child. Second, Petitioner never provided evidence that his plea agreement included a provision that he would not be required to register as a sex offender. Even assuming arguendo that any party to the plea agreement would have any authority whatsoever to include such a provision in a plea offer, there is nothing in the record before us-including the transcript of Petitioner's testimony at the hearing before the trial court-of any such provision or Petitioner's reliance on such a provision. Third, to the extent Petitioner's arguments here are based on his claims that the non-categorical approach leads to enhanced punishment and subsequent mini-trials on broader offenses and based upon a lower evidentiary standard, these claims are essentially Fifth and Sixth Amendment claims, which brings us to Petitioner's final claim.
Petitioner asserts that the categorical approach should be used because the non-categorical approach presents Fifth Amendment double jeopardy concerns as well as Sixth Amendment concerns. However, the Missouri Supreme Court has determined that the sex offender registration requirement is "civil and not punitive." Roe v. Replogle ,
Point denied.
Judgment is affirmed.
Philip M. Hess, P.J. and Mary K. Hoff, J., concur.
With respect to the word "preventing" used in the charge, the trial court explicitly found "it likely that the word 'preventing' was a typographical error and was likely intended to read 'committing', and to conclude otherwise would be incongruent."
Any other claims raised in Petitioner's point relied on but not addressed in the argument section of his brief, including his Missouri constitutional claims, are abandoned. Wright v. Barr ,
While the sentencing court here suspended imposition of the sentence and placed Petitioner on probation, "federal law, not state law, controls the question of whether a prior state-court guilty plea, followed by probation and SIS, constitutes a conviction which triggers SORNA's registration requirements." Doe v. Replogle ,
Following Wilkerson , the Western District in Carr v. Missouri Attorney General Office ,
Petitioner cites Descamps v. U.S. ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.