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Burns v. State

Court of Criminal Appeals of Oklahoma

November 7, 2019

Tyrell Deonta BURNS, Appellant
v.
The STATE of Oklahoma, Appellee.

         AN APPEAL FROM THE DISTRICT COURT OF NOWATA COUNTY; THE HONORABLE CURTIS L. DELAPP, DISTRICT JUDGE

          ATTORNEYS AT TRIAL

         ZACHARY T. YOUNG, COUNSEL FOR DEFENDANT

          RYAN G. CANNONIE, ASST. DISTRICT ATTORNEY, NOWATA CO. COURTHOUSE, NOWATA, COUNSEL FOR THE STATE

          ATTORNEYS ON APPEAL

          CHAD JOHNSON, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT

         MIKE HUNTER, ATTORNEY GENERAL OF OKLA., JAY SCHNIEDERJAN, ASST. ATTORNEY GENERAL, COUNSEL FOR APPELLEE

          SUMMARY OPINION

         KUEHN, VICE PRESIDING JUDGE:

Page 1245

         [¶1] Tyrell Deonta Burns was tried by jury and convicted of Count I, Violation of Mary Rippy Violent Crime Offenders Registration Act; and Count IV, Possession of Drug Paraphernalia, in the District Court of Nowata County, Case No. CF-2015-151.[1] In accordance with the jury’s recommendation the Honorable Curtis L. DeLapp sentenced Appellant to ten (10) years imprisonment (Count I); and one (1) year imprisonment and a fine of $1000.00 (Count IV), to run concurrently. Appellant appeals from these convictions and sentences.[2]

         [¶2] Appellant raises four propositions of error in support of his appeal:

I. There was no evidence that Appellant was notified of his duty to register with local law enforcement pursuant to the Mary Rippy Violent Crime Offenders Registration Act.

II. The court did not adequately instruct the jury on the elements of violating the Mary Rippy Violent Crime Offenders Registration Act.

III. State Exhibits 29-32, purported copies of Appellant’s prior judgment and sentences, should not have been admitted at trial, as they were neither identified by a witness nor self-authenticating.
IV. Appellant’s maximum 10-year prison term for violating the Mary Rippy Violent Crime Offenders Registration Act is excessive where Appellant was at least partially compliant.

         [¶3] After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that the convictions must be reversed with instructions to dismiss.

         [¶4] In Proposition I Appellant argues the State failed to show he had notice that he was required to register with local law enforcement under the Mary Rippy Violent Crime Offenders Registration Act, 57 O.S.2011, § 594. Notice is a basic requirement of due process. Horn v. State, 2009 OK CR 7, ¶ 21, 204 P.3d 777, 783.

         [¶5] Prior to determining if notice was proven to the jury, we must determine if the Act requires notice to the offender. The Act provides that persons subject to its provisions shall register:

(1) with the Department of Corrections (DOC) within three business days after release; and

(2) with local law enforcement in the jurisdiction where the person resides or intends to reside, within three days after entering that jurisdiction; and

(3) a person must also register with both the DOC and local law enforcement within three days before moving or leaving a previously registered address. 57 O.S.2011, § 594(A).

         [¶6] This Court has yet to interpret the provisions of Section 594. However, we have interpreted the notice provision in the methamphetamine registration statute, 63 O.S. § 2-701(B), and it is analogous to the Act. Wolf v. State, 2012 OK CR 16, ¶ 17, 292 P.3d 512, 517-18. In Wolf, we held due process requires that persons subject to the methamphetamine registry must be notified of that status, as that "specific conduct is considered a criminal offense." Wolf, ¶ 5, 292 P.3d at 514. We now adopt this finding for the Mary Rippy Violent Crime Offenders registry, holding that before offenders may be charged with a crime for violating the Act, they must have notice that they are subject to the registry. Undeniably, the Act meets this notice requirement, as it provides that persons subject to its registry must be notified.[3] Under the Act, an offender must be

Page 1246

notified that they must register with DOC and local law enforcement.

         [¶7] This means that, in every case in which an offender, after conviction, is subject to registration under the Act, he must be personally notified of the requirements that he register both with the Department of Corrections and local law enforcement. While Section 594 sets forth the notice requirement, it does not specify the means of notification. Section 594(D) provides that, when registering an offender, DOC or local law enforcement must give the offender certain information. 57 O.S.2011, § 594(D). However, this provision does not discuss who provides the initial notice that registration is required. Section 597 of the Act partially resolves this. 57 O.S.2011, § 597. It puts the responsibility for initial notice on either (a) the person in charge of a correctional institution where the offender is confined, to give notice of the Act’s registration requirements prior to discharge or release; or (b) any judge who defers or suspends the sentence of an offender subject to the Act, prior to discharge or release from court. 57 O.S.2011, § 597(A). Either of these persons, as appropriate, must (1) explain the offender’s duty to register under the Act, (2) require the offender to sign a written statement acknowledging the explanation and his understanding of it, (3) obtain the address of the offender’s residence upon discharge or release, and (4) forward that information to the Department of Corrections. 57 O.S.2011, § 597(A)(1-4). These provisions clearly cover the requirement to register with the DOC, in every case. However, the language does not explicitly provide in every case for a specific person to give notice of the requirement to register with local law enforcement.

         [¶8] This Court must interpret these statutes to give intelligent effect to the provisions of the Act, and to comply with the specific notice requirements of Section 597. Leftwich v. State,2015 OK CR 5, ¶ 15, 350 P.3d 149, 155. We conclude that the most efficient and secure way to do so is to require judges, in every case in which an offender is subject to registration with DOC and local law enforcement under the Act, to notify the offender of that requirement at the time of sentencing, or, where a defendant pleads guilty or nolo contendere, at the time the plea is taken. In doing so, judges shall comply with the provisions of Section 597(A) by following exactly the process set ...


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