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 ...