Smith v. Commonwealth ( 2013 )

PRESENT: All the Justices
JEREMY WADE SMITH
OPINION BY
v. Record No. 121579 JUSTICE WILLIAM C. MIMS
June 6, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Clarence N. Jenkins, Jr., Judge
In this appeal, we consider whether the retroactive
application of a 2008 amendment to Code § 9.1-902 resulted in
contractual and constitutional violations by allegedly
interfering with a 1999 plea agreement.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
In February 1999, a grand jury in the City of Richmond
indicted Jeremy Wade Smith for rape in violation of Code §
18.2-61. The indictment alleged that Smith, age twenty-two at
the time, engaged in sexual activity with a fourteen-year-old
girl, resulting in the birth of a child.
Smith entered into a plea agreement. He agreed to plead
guilty to the reduced charge of carnal knowledge of a minor in
violation of Code § 18.2-63, and the Commonwealth agreed to
recommend a suspended sentence. The plea agreement contained
an integration clause stating that it “contain[ed] the entire
agreement between the parties, both oral and written.” The
agreement did not reference the registration requirements
applicable to convicted sex offenders. The circuit court
reluctantly accepted the plea agreement and sentenced Smith to
ten years’ incarceration with the entire term suspended. The
Commonwealth reminded the court that Smith would be required to
register with the Virginia Department of State Police (“State
Police”) as a sex offender. Smith’s counsel indicated that he
understood this requirement.
At the time of Smith’s conviction, carnal knowledge of a
minor was classified as a non-violent sex offense. Former Code
§ 19.2-298.1 (1995 & Supp. 1999). As a non-violent sex
offender, Smith was required to register with the State Police
annually for 10 years, after which he could petition for
expungement. 1 Former Code §§ 19.2-298.2, -298.3(A) (1995 &
Supp. 1999).
In 2006, the federal government enacted the Adam Walsh
Child Protection and Safety Act. See 42 U.S.C. § 16911 et seq.
(2006). Title I of the Act, known as the Sex Offender
Registration & Notification Act (“SORNA”), required Virginia to
implement comprehensive sex offender registration standards. 2
In 2008, the General Assembly amended Code § 9.1-902 (former
1
At the time Smith was convicted, the statutory provisions
governing sex offender registration were located in former Code
§§ 19.2-298.1 through 19.2-298.4 (2000 & Supp. 2002). In 2003,
the General Assembly repealed these Code sections and enacted
the Sex Offender and Crimes Against Minors Registry Act, Code §
9.1-900 et seq., 2003 Acts ch. 584.
2
Failure to implement such standards would have resulted
in a partial loss of federal funding for state and local law
enforcement programs. See 42 U.S.C. § 16925 (2006).
2
Code § 19.2-298.1) to comply with SORNA. As a result, Smith’s
conviction for carnal knowledge of a minor was retroactively
reclassified as a “sexually violent offense,” and he became
subject to more stringent registration requirements. 2008 Acts
ch. 877. Particularly, Smith now must register every 90 days
for the rest of his life, with no right to petition for
expungement. Code §§ 9.1-903, -904.
In February 2010, Smith filed a complaint in the Circuit
Court of the City of Richmond asserting that he should not be
classified as a violent sex offender for purposes of the
registration requirements. Smith argued that the
reclassification of his offense violated his contractual and
constitutional rights. He asserted that the reclassification
(1) unilaterally altered the terms of his plea agreement,
constituting a breach of contract; (2) deprived him of vested
contractual rights without just compensation, constituting an
unconstitutional taking; and (3) violated his procedural due
process rights.
Smith and the Commonwealth filed cross-motions for summary
judgment. Smith claimed that the sex offender registration
requirements in effect when he entered the plea agreement were
part of the agreement as if they had been explicitly
incorporated therein. Thus, he contended that reclassifying
his offense breached the plea agreement and deprived him of
3
vested contractual rights without just compensation or due
process of law. The Commonwealth responded that Smith had no
contractual rights, vested or otherwise, regarding the sex
offender registration requirements because the plea agreement
contained an integration clause and did not reference the
registration requirements.
The circuit court granted summary judgment in favor of the
Commonwealth. It held that reclassifying Smith’s conviction
did not constitute a material breach of contract. In addition,
it concluded that the registration requirements were not an
integral part of Smith’s inducement to enter into the plea
agreement, which held no promise or vested right that the
registration laws would not subsequently change. Because Smith
had no vested contractual rights with respect to the
registration requirements, the circuit court reasoned that
there was no unconstitutional taking or procedural due process
violation. 3 Accordingly, the court dismissed Smith’s claims
with prejudice. This appeal followed.
II. ANALYSIS
The crux of Smith’s argument is that the 1999 plea
agreement was a contract that incorporated the sex offender
3
Regarding the procedural due process claim, the circuit
court also held that a hearing would not have established facts
relevant to the legislature’s statutory scheme; therefore, no
additional process was necessary.
4
registration laws in existence at the time of the agreement.
Thus, he contends that the Commonwealth materially breached the
plea agreement and deprived him of vested contractual rights by
subsequently amending the registration laws and retroactively
enforcing them against him.
For Smith to prevail, he first must establish that the
1999 sex offender registration laws became terms of the plea
agreement. The plea agreement is silent as to the registration
requirements. Thus, Smith’s sole argument is that the plea
agreement implicitly incorporated the 1999 registration laws as
contractual terms by operation of law.
Smith relies on this Court’s decision in Wright v.
Commonwealth, 275 Va. 77, 655 S.E.2d 7 (2008). In Wright, the
defendant entered into a plea agreement that reduced his charge
from capital to first degree murder and provided for a sentence
of life imprisonment. Id. at 79, 655 S.E.2d at 8. The trial
court accepted the plea agreement, but also imposed a
statutorily mandated period of post-release supervision and
suspended incarceration that was not referenced in the plea
agreement. Id. The defendant challenged the trial court’s
imposition of the additional term, and this Court upheld the
sentence. The Court acknowledged that general principles of
contract law apply to plea agreements and stated that “[t]he
law effective when the contract is made is as much a part of
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the contract as if incorporated therein.” Id. at 81-82, 655
S.E.2d at 10 (internal quotation marks and citations omitted).
In other words, the Court concluded that the statute mandating
post-release supervision and suspended incarceration was an
implicit term of the plea agreement.
Consistent with our decision in Wright, we agree that the
1999 sex offender registration laws were implicit terms of
Smith’s plea agreement. Thus, as in Wright, Smith could not
refuse to abide by the registration requirements simply because
they were not expressly listed in the agreement. The question
before us is whether the General Assembly could subsequently
change the law in effect at the time of the plea agreement.
Smith argues that it could not. He asserts that, for
purposes of his plea agreement, the law effective in 1999 also
implicitly incorporated Article I, Section 11 of the
Constitution of Virginia and Code § 1-239, which together
prohibited the Commonwealth from altering contracts via
retroactive amendments to the law. 4 Therefore, Smith argues
4
Article I, Section 11 provides that “the General Assembly
shall not pass any law impairing the obligations of contracts.”
Code § 1-239 states:
No new act of the General Assembly shall be construed
to repeal a former law . . . or any right accrued, or
claim arising under the former law, or in any way
whatever to affect any such . . . right accrued, or
claim arising before the new act of the General
Assembly takes effect.
6
that the plea agreement not only incorporated the 1999 sex
offender registration laws, but gave him a vested right that
amended registration laws would not apply to him.
This argument has no merit. It is well established that
Article I, Section 11 and Code § 1-239 must be interpreted to
accommodate the inherent police power of the state to safeguard
the interests of its people. This Court has stated that
contracts must be read “as containing an implied condition that
[they are] subject to the exercise of the [s]tate’s regulatory
police power.” Haughton v. Lankford, 189 Va. 183, 190, 52
S.E.2d 111, 114 (1949); see also United States Trust Co. v. New
Jersey, 431 U.S. 1, 22 (1977). Thus, contracts are deemed to
implicitly incorporate the existing law and the reserved power
of the state to amend the law or enact additional laws for the
public welfare. Haughton, 189 Va. at 190, 52 S.E.2d at 114.
The General Assembly’s reclassification of carnal
knowledge of a minor as a “sexually violent offense” was an
exercise of the state’s regulatory police power. Code § 9.1-
902 was amended to bring Virginia into compliance with the
federal sex offender registration guidelines set forth in
SORNA. The rationale behind these federal guidelines was “[t]o
protect children from sexual exploitation and violent crime
. . . .” Pub. L. No. 109-248, Title I, § 102, 120 Stat. 587,
587, 590 (2006).
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Smith argues that amending Code § 9.1-902 was an improper
use of the state’s police power because the true reason behind
the amendment was to avoid the loss of federal funding. We
disagree. Regardless of federal funding, Code § 9.1-902 was
amended to better protect Virginians against sexually motivated
crimes. This purpose is squarely within the Commonwealth’s
police power to protect the public safety.
Accordingly, the reclassification of Smith’s conviction
was not a breach of contract. When Smith entered into the plea
agreement he had no contractual right that his sex offense
would never be subject to future sex offender legislation.
While the agreement implicitly incorporated the 1999
registration laws, it said nothing to indicate that Smith would
only be bound by the law in effect at the time of the
agreement, i.e., the 10-year registration requirement then
applicable to non-violent sex offenders. 5 Furthermore, the plea
agreement contained an implied condition that Smith would
remain subject to the state’s future exercise of its police
power. That power included the inherent authority to pass non-
punitive legislation regulating convicted sex offenders.
Because we find that Smith had no vested contractual
rights with respect to the 1999 registration requirements, his
5
We do not at this time address whether the
reclassification of a conviction would constitute a breach of
any such express contractual clause.
8
constitutional claims also must fail. Smith first argues that
the Commonwealth violated Article I, Section 11 of the
Constitution of Virginia by depriving him of his contractual
rights under the plea agreement without just compensation.
Article I, Section 11 states:
[T]he General Assembly shall pass no law whereby
private property, the right to which is fundamental,
shall be damaged or taken except for public use. No
private property shall be damaged or taken for public
use without just compensation to the owner thereof.
Smith is correct that vested contractual rights qualify as
private property that may not be taken without just
compensation. See Lynch v. United States, 292 U.S. 571, 579
(1934). However, as discussed, Smith did not have any vested
contractual rights with respect to the 1999 registration
requirements. The Commonwealth was permitted to enact
retroactive legislation regulating convicted sex offenders as
part of its police power. Thus, the reclassification of
Smith’s conviction was not an unconstitutional taking.
Smith also argues that his procedural due process rights
were violated because he was deprived of contractual rights
without an opportunity to be heard. Article I, Section 11 of
the Constitution of Virginia provides that, “no person shall be
deprived of his life, liberty, or property without due process
of law.” “[D]ue process of law requires that a person shall
have reasonable notice and a reasonable opportunity to be heard
9
before an impartial tribunal, before any binding decree can be
passed affecting his right to liberty or property.” Ward
Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626, 630, 59
S.E. 476, 479 (1907) (internal quotation marks omitted).
For the same reason that the reclassification of Smith’s
conviction was not an unconstitutional taking, it also was not
a violation of procedural due process. Due process analysis
presupposes the existence of an enforceable right. We
previously have held that convicted sex offenders have no
liberty interest to be free from quarterly registration
requirements. McCabe v. Commonwealth, 274 Va. 558, 565, 650
S.E.2d 508, 512 (2007). Likewise, they have no fundamental
right to rely on the civil legislative scheme in existence at
the time of pleading guilty. Id. at 565-66, 650 S.E.2d at 512-
13. Because in this particular case Smith had no vested
contractual rights with respect to the 1999 registration
requirements, there was no procedural due process violation. 6
6
Even if Smith did have contractual rights with respect to
the 1999 registration requirements, no additional process was
necessary. Classification of a crime as a “sexually violent
offense” under Code § 9.1-902 is based solely on the nature of
the crime. Thus, conviction of carnal knowledge of a minor who
was more than five years younger than the perpetrator is the
only fact relevant to the classification determination, and
nothing Smith could have presented at a hearing would have
changed that fact. See McCabe, 274 Va. at 567-68, 650 S.E.2d
at 513-14.
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III. CONCLUSION
Since there were no contractual or constitutional
violations resulting from the reclassification of Smith’s
conviction, the circuit court properly dismissed his petition
for expungement and for a permanent injunction. Accordingly,
we will affirm the judgment of the circuit court.
Affirmed.
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