Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Baugh v. Commonwealth

Court of Appeals of Virginia

January 30, 2018

JOHN ALLEN BAUGH, JR.
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY David E. Johnson, Judge

          James T. Maloney (Joseph D. Morrissey; James T. Maloney, PC; Morrissey & Associates, LCC, on brief), for appellant.

          J. Christian Obenshain, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Judges Decker, Russell and Malveaux Argued at Richmond, Virginia

          OPINION

          MARY BENNETT MALVEAUX, JUDGE

         John Allen Baugh, Jr. ("appellant") was convicted of failure to register as a sex offender, in violation of Code § 18.2-472.1. On appeal, appellant argues that the trial court erred in denying his motion to dismiss where the retroactive application of a 2007 amendment to Virginia's Sex Offender and Crimes Against Minors Registry Act ("VSOR"), Code §§ 9.1-900 to -923, violates the ex post facto clause of the United States Constitution, Article 1, § 10.

         I. BACKGROUND

         Appellant was convicted on December 4, 2000 of having carnal knowledge of a minor, in violation of Code § 18.2-63. As a result of this conviction, he was required to register as a sex offender under VSOR, at the time codified at Code § 19.2-298.1.[1]

          In 2007, VSOR was amended by the addition of a new provision, Code § 9.1-903(G), requiring an individual subject to VSOR's registration provisions to "reregister either in person or electronically with the local law-enforcement agency where his residence is located within 30 minutes following any change of the electronic mail address information, any instant message, chat or other Internet communication name or identity information that the person uses or intends to use . . . ." 2007 Va. Acts chs. 759, 823.

         On March 16, 2015, Officer Wilson of the Virginia State Police initiated a home verification of appellant's residence. During conversation with the officer, appellant indicated that he had an email address, "equip2flip@gmail.com, " for a year. This email account was not registered with the Virginia State Police.

         On March 21, 2016, appellant was indicted for failing to register as a sex offender in violation of Code § 18.2-472.1. Appellant filed a motion to dismiss the indictment, arguing the Commonwealth's retroactive application to appellant of an amendment to VSOR requiring email registration violated the ex post facto clause of the United States Constitution.

         During a hearing on the motion before the trial court, appellant argued that application of the amendment to VSOR requiring him to register his email address amounted to punishment, violating the United States Constitution's ex post facto clause. Appellant relied on Doe v. Snyder, 834 F.3d 696 (6th Cir. 2016), a Sixth Circuit case holding that retroactive application of amendments to Michigan's sex offender registry was unconstitutional. The Commonwealth argued that the issue was controlled by Kitze v. Commonwealth, 23 Va.App. 213, 220, 475 S.E.2d 830, 834 (1996), which held that the statutory requirement to register as a sex offender under then-existing Code § 19.2-298.1 was not punitive. The Commonwealth also relied upon Smith v. Doe, 538 U.S. 84 (2003), in which the United States Supreme Court held that Alaska's sex offender registration statutes were not punitive in either intent or effect and, thus, their retroactive application did not violate the ex post facto clause of the United States Constitution.

         The trial court found that Kitze controlled, noting that it was binding with respect to the "unambiguous holding" that "the intent of the Virginia General Assembly in enacting the statute was to establish a civil proceeding." The court further found that "if the second prong of the Smith standard was applied to the statute, " appellant had failed to demonstrate that the "effect of the statute . . . negates the General Assembly's intention to establish a civil proceeding." The court denied appellant's motion to dismiss. Appellant subsequently entered a conditional Alford[2] plea to the charge, pursuant to Code § 19.2-254. Appellant appeals his conviction to this Court.

         II. ANALYSIS

         On appeal, appellant contends that the retroactive application of a 2007 amendment to VSOR as applied to him violates the ex post facto clause of the United States Constitution, Article 1, § 10.[3]

         Appellant challenges the statute as applied to him as opposed to mounting a facial challenge to the constitutionality of VSOR. "Because our jurisprudence favors upholding the constitutionality of properly enacted laws, we have recognized that it is possible for a statute or ordinance to be facially valid, and yet unconstitutional as applied in a particular case." Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 336, 689 S.E.2d 679, 684 (2010). We ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.