STATE v. CROFTON, 144 Wn. App. 1047 (2008)

No. 59539-3-I.The Court of Appeals of Washington, Division One.
June 2, 2008.

Appeal from a judgment of the Superior Court for King County, No. 05-1-09946-8, Douglas D. McBroom, J., entered February 9, 2007.

Affirmed
by unpublished opinion per Agid, J., concurred in by Cox and Appelwick, JJ.

AGID, J.

Clayton Crofton challenges his conviction for failure to register as a sex offender under RCW 9A.44.130(6)(b), which requires post-release sex offenders who do not have fixed addresses to report weekly, in person, to the sheriff’s office in the counties where they are registered. Because the statute does not violate the ex post facto and equal protection provisions of the United States and Washington Constitutions, we affirm.

FACTS
In 1990, Clayton Crofton was convicted of one count of second degree rape. He was sentenced to 10 years of incarceration and one year of community custody. Crofton was also required to register as a sex offender once he was released from Page 2 confinement.

During the 11 weeks between March 28, 2005, and July 15, 2005, Crofton had no fixed residence and failed to register with the King County Sheriff’s Office. Crofton was later charged with one count of failure to register as a sex offender, contrary to RCW 9A.44.130.

Crofton waived a jury trial and stipulated to the facts. The court rejected Crofton’s constitutional challenges to the sex offender registration statute and found him guilty as charged. The court sentenced Crofton to a standard range sentence of 217 days of confinement. He appeals.

DISCUSSION
Crofton first argues that the sex offender registration statute, RCW 9A.44.130, violates the ex post facto clauses of the United States and Washington Constitutions because the statute retroactively imposes punishment by requiring people without a fixed residence to report weekly, in person, to the county sheriff’s office.[1] We presume that statutes are constitutional.[2] The party challenging a statute has the burden of proving that it is unconstitutional beyond a reasonable doubt.[3]

The ex post facto clauses of the United States and Washington Constitutionsforbid the State from enacting any law that imposes punishment for an act that was not punishable when committed, or inflicts a greater punishment than could have been imposed at the time the crime was committed.[4] The ex post facto analysis is essentially the same in Washington as under the federal constitution.[5] A law violates the ex post facto clause if it (1) is substantive, rather than merely procedural, (2) is retrospective, applying to events that occurred before the law’s enactment, and (3) disadvantages the person affected by it.[6]
A law “disadvantages” a defendant only if it enhances the punishment that existed under the prior law.[7] A statute is not deemed punitive simply because it does not closely fit with the nonpunitive aims it seeks to advance.[8]

The general question whether RCW 9A.44.130 violates the ex post facto clause has already been answered in the negative by the Washington Supreme Court in State v. Ward.[9] There, the court presumed that the registration statute was substantive rather than procedural.[10] And because the legislature enacted the statute after the defendants committed their sex offenses, the court concluded it was retrospective.[11]

But the court held that the statute did not violate the ex post facto clause because the registration requirement does not constitute punishment.[12] Rather, the court ruled that the provision was reasonably related to the legislature’s legitimate interest in “`assist[ing] local law enforcement agencies’ efforts to protect theircommunities by regulating sex offenders by requiring sex offenders to register with local law enforcement agencies as provided in [RCW 9A.44.130].'”[13]

The Ward court relied on four characteristics of the registration statute to conclude it was not punitive.[14] First, registration has not been historically regarded as punishment.[15] Second, it is not designed to deter future crime, which is a traditional purpose of punishment.[16] Rather, it is designed to aid law enforcement agencies’ efforts to protect communities by providing increased access to necessary and relevant information.[17] Third, registration is not excessive in relation to the important community interest served by having law enforcement know about the presence and location of sex offenders in the community.[18] Fourth, registration does not overly burden or restrain offenders because it requires only that they provide limited information to law enforcement and does not significantly limit their movements.[19]
Sex offenders are free to move within their community or from one community to another, so long as they comply with the statute’s registration requirements.[20]

Here, for the same reasons articulated in Ward, Crofton’s ex post facto challenge fails because the registration provisions are not punitive. The only difference between Crofton’s challenge and that advanced by the defendants in Ward is that, because he has no fixed address, he must report once a week to the King CountySheriff’s Office to confirm his continued presence in the county. To comply with the statute, Crofton had to go to the sheriff’s office and sign his name on a piece of paper. Nothing in the record supports his claim that it was difficult for him to get to the sheriff’s office or that doing so hindered his ability to obtain social services and employment. And even if reporting weekly was inconvenient to Crofton, that does not distinguish him from other sex offenders or make the statute punitive. As the Ward court concluded, “[a]lthough a registrant may be burdened by registration, such burdens are an incident of the underlying conviction and are not punitive for purposes of ex post facto analysis.”[21] The provision does not violate the ex post facto clauses of the United States and Washington Constitutions.[22]

We next address Crofton’s equal protection argument. Crofton claims that RCW 9A.44.130(6)(b) impermissibly distinguishes between offenders who are homeless due to poverty and offenders who can afford homes.

The state and federal equal protection clauses guarantee similarly situated persons like treatment under the law.[23] Equal protection claims are governed by one of three levels of scrutiny, depending upon the class of persons affected and the nature of the right at issue:

Strict scrutiny applies when a classification affects a suspect class or threatens a fundamental right. Intermediate or heightened scrutiny, used by this court in limited circumstances, applies when important rights or semisuspect classifications are affected. The most relaxed level of scrutiny, commonly referred to as the rational basis or rational relationship test, applies when a statutory classification does not involve a suspect or semisuspect class and does not threaten a fundamental right.[24]

The State contends that the applicable level of scrutiny here is the rational basis test, and we agree. Crofton does not argue that the requirement implicates a fundamental right, and the classification at issue does not implicate or create a suspect or semisuspect class. Indeed, the statutory language clearly applies to anyone who lacks a “fixed address,” not just homeless people. It includes people who are transient for any number of reasons, including highly mobile laborers and professionals, and those who travel in recreational vehicles or mobile homes. RCW 9A.44.130(6) draws no distinctions between “homeless” and “non-homeless,” and applies equally to all who lack a fixed residence, independent of their financial circumstances. People who lack fixed residences do not constitute a suspect or semisuspect class, and the rational basis test applies.[25]

Under the rational basis test, we will uphold a legislative classification unless the defendant can show that “`it rests on grounds wholly irrelevant to the achievement of legitimate state objectives.'”[26] In other words, Crofton bears the burden of showing beyond a reasonable doubt that the classification in question is completely arbitrary and not rationally related to a legitimate state interest.[27]

Crofton fails to meet this burden. Requiring offenders without a fixed residence to register weekly is rationally related to the legitimate state interest of tracking sex offenders who, as the legislature recognized, “often pose a high risk of reoffense.”[28] Registration in general is designed to help law enforcement protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses.[29] To serve these goals, it is reasonable to distinguish between offenders who have a fixed address and those who do not, as offenders without fixed addresses are inherently more difficult to find.

Accordingly, we reject Crofton’s claim that the legislature provided no justification “for denying homeless persons the convenience of mail.” If offenders without a fixed residence could register by mail, there would be no way of verifying that the information they provided was correct. When an offender reports weekly in person, law enforcement personnel are assured that they will know for certain an offender’s whereabouts at least once during the week. We therefore reject Crofton’s equal protection argument and affirm his conviction.