JOHN ALLEN BAUGH, JR.
COMMONWEALTH OF VIRGINIA
THE CIRCUIT COURT OF CHESTERFIELD COUNTY David E. Johnson,
T. Maloney (Joseph D. Morrissey; James T. Maloney, PC;
Morrissey & Associates, LCC, on brief), for appellant.
Christian Obenshain, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Decker, Russell and Malveaux Argued at Richmond, Virginia
BENNETT MALVEAUX, JUDGE
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.
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 §
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,
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, "firstname.lastname@example.org,
" for a year. This email account was not registered with
the Virginia State Police.
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.
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.
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 plea to the charge, pursuant to Code
§ 19.2-254. Appellant appeals his conviction to this
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.
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