State of Tennessee v. Ashley Marie Witwer ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 11, 2015
STATE OF TENNESSEE v. ASHLEY MARIE WITWER
Appeal from the Criminal Court for Davidson County
No. 2013-D-3367 J. Randall Wyatt, Jr., Judge
No. M2014-00834-CCA-R3-CD – Filed March 16, 2015
Appellant, Ashley Marie Witwer, brings a certified question of law regarding whether the
retroactive application of the Tennessee Sexual Offender and Violent Sexual Offender
Registration, Verification and Tracking Act of 2004, as amended in 2012, to her
conviction for promoting prostitution is an unconstitutional ex post facto law. After
careful review of the parties‟ briefs, the record, and the applicable law, we determine that
the law is constitutional. Accordingly, the judgment of the criminal court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.
Elaine Heard, Nashville, Tennessee, for the appellant, Ashley Marie Witwer.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Victor S. Johnson III; District Attorney General; Brian Ewald, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
On July 30, 2010, Appellant pled guilty to the offense of promoting prostitution, a
Class E felony. The trial court accepted the State‟s sentencing recommendation that
Appellant receive one year of incarceration as a Range I, standard offender to be served
consecutive to a sentence that she was serving for another offense at the time of the plea.
Subsequently, the General Assembly amended Tennessee Code Annotated section
40-39-202 by adding the offense of promoting prostitution to the list of enumerated
offenses subject to the requirements of the sex offender registry. This amendment
became effective on July 1, 2012, and on July 23, 2013, Appellant was notified that she
had three days to register as a sex offender. Appellant appeared for a scheduled
appointment on July 26, 2013, to register, but she informed the authorities that she was
refusing to complete the process of registration.
Appellant was indicted for two counts of violating Tennessee Code Annotated
section 40-39-208, one for failure to timely register and another for failure to sign a
Tennessee Bureau of Investigation (“TBI”) registration form. Pursuant to a plea
agreement, the second count was dismissed by the State, and Appellant pled guilty to the
first count, a Class E felony. Appellant received a one-year sentence as a Range I,
standard offender, of which all but ninety days were suspended to supervised probation.
The sentence was stayed by the trial court pending this Court‟s resolution of Appellant‟s
certified question of law.
Analysis
Appellant raises the following certified question of law:
Whether Tennessee Code Annotated section 40-39-202(A)(20)(xviii),
which designates “promotion of prostitution” as a “sexual offense”
requiring registry within the Tennessee Sex Offender Registry, is
constitutional as retroactively applied to the Appellant under the Tennessee
Constitution and the Constitution of the United States.
Tennessee Rule of Criminal Procedure 37(b) permits a defendant to plead guilty to an
offense on the condition of a certified question of law that is dispositive of the case under
the following requirements:
(i) the judgment of conviction or order reserving the certified question that
is filed before the notice of appeal is filed contains a statement of the
certified question of law that the defendant reserved for appellate review;
(ii) the question of law as stated in the judgment or order reserving the
certified question identifies clearly the scope and limits of the legal issue
reserved;
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(iii) the judgment or order reserving the certified question reflects that the
certified question was expressly reserved with the consent of the state and
the trial court; and
(iv) the judgment or order reserving the certified question reflects that the
defendant, the state, and the trial court are of the opinion that the certified
question is dispositive of the case.
Tenn. R. Crim. P. 37(b)(2)(A). As the parties agree, all of these requirements have been
satisfied in this case. Appellant‟s “as applied” challenge to the constitutionality of this
statute is a question of law that is reviewed de novo. Waters v. Farr, 291 S.W.3d 873,
882 (Tenn. 2009).
The Tennessee Sexual Offender and Violent Sexual Offender Registration,
Verification and Tracking Act of 2004 (“the Act”) establishes a registry of individuals
convicted of certain enumerated offenses. See generally T.C.A. § 40-39-201 to -217.
Those required to register under the Act are subject to various restrictions, registration,
and notification requirements. See id. Effective July 1, 2012, the Act added the offense
of promotion of prostitution to the list of enumerated crimes constituting a “sexual
offense” that requires registration under the Act. T.C.A. § 40-39-202(20)(xviii). This
change in the Act was applied retroactively to Appellant, who committed felonies by
refusing to comply with the registration requirements of the Act. 1 See Ward v. State, 315
S.W.3d 461, 468 (Tenn. 2010) (noting that the Act‟s “language evinces a clear intent that
the registration requirements be applied retroactively to any sexual offender”).
Both the federal and state constitutions prohibit ex post facto laws. U.S. Const.
art. I, § 10, cl. 1; Tenn. Const. art. I, § 11. Although “the Ex Post Facto Clause of the
Tennessee Constitution has a broader reach than its federal counterpart,” Miller v. State,
584 S.W.2d 758, 761 (Tenn. 1979), both the Supreme Court of the United States and the
Supreme Court of Tennessee “have adopted complementary constructions of these
provisions.” Kaylor v. Bradley, 912 S.W.2d 728, 731 (Tenn. Ct. App. 1995). “Every law
that changes the punishment, and inflicts a greater punishment, than the law annexed to
the crime, when committed” is a forbidden ex post facto law. Calder v. Bull, 3 U.S. 386,
390 (1798); Miller, 584 S.W.2d at 761. “The touchstone of [an ex post facto] inquiry is
1
In pertinent part, Section 40-39-208 provides:
(a) It is an offense for an offender to knowingly violate any provision of this part.
Violations shall include, but not be limited to:
(1) Failure of an offender to timely register or report;
....
(4) Failure to sign a TBI registration form. . . .
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whether a given change in law presents a „sufficient risk of increasing the measure of
punishment attached to the covered crimes.‟” Peugh v. United States, __ U.S. __, 133
S. Ct. 2072, 2082 (2013) (quoting Garner v. Jones, 529 U.S. 244, 253 (2000)). A
retroactive civil regulatory scheme will not violate the ex post facto bar unless the law is
intended to be punitive or has punitive effects. Smith v. Doe, 538 U.S. 84, 92 (2003).
As the State‟s brief highlights, sex offender registry statutes have been widely
upheld as non-punitive, and Tennessee‟s own statute has survived repeated ex post facto
challenges. See, e.g., John Doe v. Mark Gwyn, No. E2010-01234-COA-R3-CV, 2011
WL 1344996, at *14 (Tenn. Ct. App. Apr. 8, 2011) (concluding no ex post facto violation
for retroactive application of a 2007 amendment of the Act requiring registration of any
Tennessee resident convicted of an offense in another state that would qualify as a sexual
offense if committed in Tennessee), perm. app. denied (Tenn. Aug. 24, 2011); David
Livingston v. State, No. M2009-01900-COA-R3-CV, 2010 WL 3928634, at *5-7 (Tenn.
Crim. App. Oct. 6, 2010), application for perm. app. dismissed (Tenn. Jan. 11, 2011);
John Doe v. Robert E. Cooper, Jr., No. M2009-00915-COA-R3-CV, 2010 WL 2730583,
at *4-11 (Tenn. Ct. App. July 9, 2010), perm. app. denied (Tenn. Dec. 7, 2010). As our
court of appeals has explained:
To date, every ex post facto challenge of Tennessee‟s statutory scheme
requiring persons classified as sexual offenders to register with the TBI sex
offender registry has been rejected. The United States Supreme Court and
the United States Court of Appeals for the Sixth Circuit upheld Tennessee‟s
sex offender registry in Smith v. Doe, 538 U.S. 84 [ ] (2003), Conn. Dept. of
Public Safety v. Doe, 538 U.S. 1 [ ] (2003), Doe v. Bredesen, No. 3:04-CV-
566, 2006 WL 849849 (E.D. Tenn. Mar. 28, 2006), aff’d 507 F.3d 998 (6th
Cir. 2007), pet. cert. denied, [555 U.S. 921] (2008), and Cutshall v.
Sundquist, 193 F.3d 466 (6th Cir. 1999). Furthermore, both the Court of
Appeals and the Court of Criminal Appeals of Tennessee upheld the sex
offender registry against ex post facto challenges. See [Stephen] Strain v.
Tennessee Bureau of Investigation, No. M2007-01621-COA-R3-CV, 2009
WL 137210 (Tenn. Ct. App. Jan. 20, 2009); State v. [Larry Wade] Gibson,
No. E2003-02102-CCA-R3-CD, 2004 WL 2827000 (Tenn. Crim. Ct. App.
Dec. 9, 2004) [, perm. app. denied (Tenn. Mar. 21, 2005)].
Robert E. Cooper, Jr., 2010 WL 2730583, at *7. In Ward v. State, our supreme court
accepted the Act‟s previous blessing in Smith v. Doe, see 315 S.W.3d at 468 n.6, 471-72,
and specifically determined that the “plain language of this statute expresses a
nonpunitive intent to protect the public [and] the registration requirement does not inflict
additional punishment on [the appellant] nor does it alter the range of punishment,” id. at
470. The court further observed that, “while the registration requirement is undoubtedly
a definite, immediate, and largely automatic consequence of a conviction of a sexual
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offense or violent sexual offense, it does not have an effect on the length, manner, or
service of the defendant‟s punishment.” Id. at 472.
Although no decision of a Tennessee court has directly considered the ex post
facto ramifications of the 2012 amendment, the nature of the provisions of that
amendment as applied to Appellant are indistinguishable from the basic registration
requirement of previous versions of the Act that have passed constitutional muster.
Appellant offers no authority to the contrary. We consider this question well-settled.2
The Tennessee Sexual Offender and Violent Sexual Offender Registration,
Verification and Tracking Act of 2004, which, as amended in 2012, designates
“promotion of prostitution” as a “sexual offense” requiring registration with the
Tennessee Sex Offender Registry, does not violate the constitutional prohibition against
ex post facto laws as applied to Appellant because the basic registration requirement does
not increase the measure of punishment attached to the predicate crime.
Conclusion
For the foregoing reasons, the judgment of the criminal court is affirmed.
_________________________________
TIMOTHY L. EASTER, JUDGE
2
As noted by the Ward court, future changes in the details of the Act could potentially provide grounds
for valid ex post facto claims. Appellant has not argued that any provisions beyond that of mere
registration are punitive in effect.
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