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Nitz v. State

Court of Appeals of Oklahoma, Division III

March 30, 2017

SAMUEL A. NITZ, Plaintiff/Appellant,
v.
STATE OF OKLAHOMA, Defendant/Appellee.

          Mandate Issued: 04/26/2017

         APPEAL FROM THE DISTRICT COURT OF OSAGE COUNTY, OKLAHOMA HONORABLE M. JOHN KANE, JUDGE

          Michael A. Risley, Oklahoma City, Oklahoma, for Plaintiff/Appellant.

          Kenneth L. Buettner, Chief Judge.

         ¶1 Plaintiff/Appellant Samuel A. Nitz appeals the trial court's order denying his motion to reconsider an order dismissing Nitz's application to be removed from the requirement to register as a sex offender. The Oklahoma Sex Offenders Registration Act (SORA), 57 O.S.2011 §§581-590.2, allows registered sex offenders who were convicted under two Oklahoma statutes to seek an order removing their requirement to register as sex offenders. Nitz argued his conviction from another state was for a crime equivalent to one of the two statutes in the removal statute and that he was therefore eligible for removal from the registration requirement. The trial court found it was without jurisdiction to grant removal from the registration requirement for an out-of-state conviction. Nitz contends the trial court's interpretation of the relevant statutory provision violated his right to equal protection. The State has failed to file an answer brief and therefore this appeal proceeds on Nitz's brief only. On de novo review, we find the statute at issue violates Nitz's constitutional right to equal protection because it treats those convicted in other states differently than those convicted in Oklahoma and there is no rational basis for the disparate treatment. We reverse and remand for consideration of Nitz's application.

         ¶2 Nitz filed his Application for Deregistration May 29, 2014. [1] In his application, Nitz asserted he registered in Oklahoma in 2009 and is required to register for life based on a 2006 conviction in Nebraska. The statute at issue provides, in pertinent part:

A. For purposes of this section, a person shall be considered for removal of the requirement to register as a sex offender if the person:
1. Was convicted of a violation of Section 1111.1 or 1114 of Title 21 of the Oklahoma Statutes and the person does not have any other conviction for a violation of Section 1111.1 or 1114 of Title 21 of the Oklahoma Statutes;
2. Is required to register as a sex offender solely on the basis of a violation of Section 1111.1 or 1114 of Title 21 of the Oklahoma Statutes; and
3. Was not more than four (4) years older than the victim of the violation who was fourteen (14) years of age or older but not more than seventeen (17) years of age at the time the person committed the violation.
B. If a person meets the criteria provided for in subsection A of this section, the person may petition the court in which the sentence for the conviction occurred for removal of the requirement to register as a sex offender. The person shall allege in the petition that the person meets the criteria provided for in subsection A of this section and that removal of the registration requirement will not conflict with federal law. The district attorney shall be given notice of the petition at least twenty-one (21) days before the hearing on the petition. The district attorney may present evidence in opposition to the requested relief or may otherwise demonstrate why the petition should be denied. The court shall rule on the petition and, if the court determines that the person meets the criteria provided for in subsection A of this section and removal of the registration requirement will not conflict with federal law, may grant the petition and order the removal of the registration requirement. If the court denies the petition, the person shall not be authorized to file any further petition for removal of the registration requirement pursuant to this section.
* * *

57 O.S.2011 §590.2. [2]

         ¶3 Nitz averred that his Nebraska conviction equated to second degree rape under Oklahoma law, which is one of the crimes listed in §590.2(A). [3] Nitz asserted that at the time of the offense he was 19 and the victim was 15 and that he was not more than four years older than the victim. Nitz further asserted that his conviction was for statutory rape based on the ages of the participants in a consensual relationship. Nitz averred also that his request did not conflict with federal law. Nitz contended he was in compliance with §590.2(A) and asked the court to order that he was no longer subject to the registration requirement.

         ¶4 In a minute order following a November 7, 2014 hearing, the trial court found Nitz was not entitled to relief under §590.2 but reserved ruling on the constitutionality of the statute. The court granted Nitz leave to file a supplemental brief on that issue.

         ¶5 Nitz filed his brief in support of his application along with the certified court file from his Nebraska conviction November 24, 2014. [4] A court notice filed December 19, 2014 showed Nitz and an Osage County Assistant D.A. had appeared at a hearing and the court certified the case as challenging the constitutionality of ยง590.2. The trial court gave ...


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