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Wyly v. State

Court of Appeals of Arkansas, Division III

October 24, 2018

TRAVIS LYNN WYLY APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NOS. 60CR-99-2839 & 60CR-99-3551] HONORABLE HERBERT T. WRIGHT, JUDGE

          Jeff Rosenzweig, for appellant.

          Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

          BART F. VIRDEN, JUDGE

         Travis Lynn Wyly appeals the Pulaski County Circuit Court's denial of his motion to terminate his obligation to register as a sex offender. On appeal, Wyly contends that the circuit court erred by finding that Ark. Code Ann. § 12-12-919(a)(3)(Supp. 2017) precludes Wyly's eligibility to seek removal from the sex-offender registry. Wyly also asserts that, as applied to him, the statute violates his federal and state constitutional due-process guarantees. We affirm.

         I. Factual History

         On September 22, 2000, Wyly pleaded guilty to four counts of third-degree carnal abuse against a single victim less than sixteen years of age in case number CR-99-2839. The abuse occurred from June 1, 1997, to July 31, 1998, and from May 1, 1998, to September 30, 1998. On the same day, Wyly pleaded guilty to one count of first-degree sexual abuse against a second victim less than fourteen years of age, and in that instance the abuse occurred between January 1, 1998, and June 16, 1999. On October 4, 2000, Wyly was sentenced concurrently to five years in the Arkansas Department of Correction with two years suspended, and he was ordered to register with the sex-offender registry. In April 2001, the General Assembly enacted Act 1743, which amended Ark. Code Ann. § 12-12-909, adding a lifetime obligation to register as a sex offender when an offender is "found to have been adjudicated guilty of a second or subsequent sex offense under a separate case number, not multiple counts on the same charge."

         On October 2, 2017, Wyly moved to terminate his lifetime obligation to register as a sex offender. In his motion, he argued that Ark. Code Ann. § 12-12-919 provides that fifteen years after release from prison, the court may terminate the obligation to register as a sex offender. Wyly asserted that he was not likely to reoffend and that he had been fully rehabilitated. Wyly contended that Ark. Code Ann. § 12-12-919(a)(3) encouraged prosecutorial "game playing" in deciding whether to charge an offender under one or multiple case numbers. Wyly also argued that retrospective application of the amended statute violates his due-process rights. In an amended response, the State asserted that Wyly has a lifetime obligation to register because he pleaded guilty in two separate cases involving different victims.

         The circuit court held a hearing on the matter, and the State argued that according to the statute, lifetime registration is required for a sex offender who has pleaded guilty or has been found guilty of a second or subsequent sex offense under a separate case number but not for someone who has been convicted of multiple counts on the same charge. Wyly responded that Ark. Code Ann. § 12-12-909(a)(3), which was enacted after he had entered his pleas, applies to a person who has committed an offense after he or she has been placed on the registry for the first offense. Wyly explained that his case is distinguishable from our recent decision in Ray v. State, 2017 Ark.App. 574, 533 S.W.3d 587, in which we upheld retroactive application of the amended statute. Wyly argued that in Ray, two pleas on multiple charges involving one victim were entered in two different counties on two different days, whereas he entered his pleas on the same day, albeit under different case numbers. Wyly argued that because the statute was not in effect at the time he entered his pleas, he had no way of avoiding the impact of the statute "by just arranging for all, you know, for both offenses to be under the same case number."

         Wyly further asserted that although it is well-settled law that the registry requirement for sex offenders is not punitive and not subject to ex post facto analysis, there are special cases in which retroactive application of noncriminal statutes can amount to a due-process violation. Wyly cited Landgraf v. USI Film Products, 511 U.S. 244, (1994) arguing that "we would submit under the particular facts and circumstances of this case the retrospective application would, in fact, violate federal and state constitutional rights of due process." The circuit court disagreed and stated from the bench, "I think Ray v. State is dispositive of this. I don't think you have, I don't think you can apply it to the statute."

         On February 21, 2018, the circuit court entered an order denying Wyly's motion to terminate his obligation to register as a sex offender. Regarding the application of Ray to the instant case, the court found that

[t]he Defendant attempts to distinguish his situation from that in Ray v. State, 2017 Ark.App. 574. He argues that his being charged in two separate cases could be construed as a type of "game-playing by the prosecutor in deciding whether to charge under one case number or not." The Defendant's argument is not convincing. Though the Defendant pleaded to both cases simultaneously and received concurrent sentences, this was not an issue of the prosecutor seeking "game playing." The Defendant was charged with two separate criminal informations filed over a month apart, there were two victims, and the date ranges alleged for the underlying conduct was different. These were not multiple counts on the same charge, and it is clear to this Court that the legislature intended lifetime registration to be the result of conduct such as Defendant's.
Wyly timely filed his notice of appeal.

         II. Standard of Review ...


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