IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
I.D. NO. 1507023289
v. : Kent County

ROBERT C. O’DELL,
Defendant.
Submitted: February 15, 2017
Decided: March 1, 2017
Written Decision: March 6, 2017
OPINION AND ORDER
Upon the State of Delaware’s Motion to Designate
the Defendant as a Tierl Sex Offender. Deniea'.

Upon Defendant’s Motion for Relief from Sex
Offender Designation. Granted.

Kathleen A. Dickerson, Esquire, Department of Justice, Dover, Delaware; attorney
for the State of Delaware.

Anthony J. Capone, Esquire, Offlce of the Public Defender, Dover, Delaware;
attorney for the Defendant.

WITHAM, R.J.

State v. Robert C. O’Dell
I.D. No. 1507023289
March 6, 2017

This case centers around a thorny question of statutory construction and
interpretation It forces the Court and the parties to Wade once again into the morass
of Delaware’s sex-offender registration and community notification scheme and to
endeavor to bring some measure of certainty and clarity to some of the scheme’s
inartfully drafted provisions. The statute’s confusing language clouds with
uncertainty the process by which convicted low-risk sex offenders may ask the Court
to relieve them from being designated as offenders.

Before the Court are Defendant Robert O’Dell’s Motion for Relief From Sex
Offender Designation and the State’s Motion to Designate the Defendant as a TierI
Sex Offender. At the first date scheduled for Mr. O’Dell’s sentencing, the Court
asked the parties Whether its earlier decision in State v. Presia’ent1 barred
consideration of Mr. O’Dell’s motion for relief. The parties requested a continuance
to submit memoranda of laW. On February 15, 2017, the parties argued their motions
before the Court.

The Court concludes that the statute permits defendants Who are convicted of
Tier l offenses to move for relief from designation, departing from dicta in State v.
Presia'ent.2 Having determined that Mr. O’Dell may move for relief, the Court finds
that he has met his burden of demonstrating by a preponderance of the evidence that
he is not likely to pose a threat to public safety if he is released from his registration

obligations. The State’s Motion to Designate is DENIED and Mr. O’Dell’s Motion

 

1 2014 WL 595406 (Del. Super. Jan. 2, 2014).
2 Id.

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for Relief is GRANTED.
FACTS

Mr. O’Dell was indicted on October 5, 2015 on two counts of Rape in the
Fourth Degree arising out of an incident in which he had sexual intercourse with a
victim four years his junior. Mr. O’Dell was nineteen at the time of the offense, and
his victim was fifteen. According to the State, Mr. O’Dell met his victim online, had
phone contact with her, and eventually walked from his home in Delmar, Maryland
toward her home in the Dover, Delaware area. The victim and her mother picked him
up and brought him to her home, but the mother eventually kicked him out. The
victim snuck out of the house and then ran away with Mr. O’Dell. The pair then had
sexual intercourse.

Mr. O’Dell was re-indicted on November 2, 2015 to add a charge of Non-
Compliance with Bond for having unauthorized contact with his victim.

The State and Mr. O’Dell entered into a plea agreement wherein he pleaded
guilty to Unlawful Sexual Contact in the Third Degree and Non-Compliance with
Bond. The parties submitted motions prior to sentencing Mr. O’Dell sought relief
from designation as a sex offender, and the State sought for the Court to designate
Mr. O’Dell as a Tier I offender,

This is the Court’s decision on those motions.

THE PARTIES’ CONTENTIONS

Mr. O’Dell contends that 11 Del. C. § 4121(d)(6)(a) is ambiguous and

contradictory, and that its legislative history indicates that the General Assembly

State v. Robert C. O’Dell
I.D. No. 1507023289
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intended to leave an avenue for relief at sentencing for offenders convicted of Tier
l misdemeanors He argues that he is unlikely to pose a threat to public safety based
on a psychological evaluation which indicated that he posed a low to moderate risk
of reoffense, as well as the presence of various mitigating factors that would make
reoffense unlikely.

The State argues that 11 Del. C. § 4121(d)(6)(a) is unambiguous in that there
are circumstances in which a misdemeanor could result in a Tier II or Tier IlI
designation. It points to the facts that Mr. O’Dell traveled a great distance to meet
and have intercourse with an underage victim, and that he then contacted her in
violation of the terms of his release. Based on these facts, it argues, Mr. O’Dell poses
a threat to public safety.

STANDARD OF REVIEW

The Court follows a straightforward standard when interpreting and construing
statutes. The first issue is to determine whether the statute is ambiguous.3 A statute
is ambiguous when it is “capable of being interpreted in two or more different
senses.”4 “If the statute is unambiguous, . . . there is no room for judicial
interpretation and ‘the plain meaning of the statutory language controls.”’5

But if the statute is ambiguous, “we consider the Statute as a whole, rather than

in parts, and we read each section in light of all others to produce a harmonious

 

3 Doroshow, Pasquale, Krawitz & Bhaya v. Nanticoke Mem ’l Hosp., Inc., 36 A.3d 336, 342
(Del. 2012).

4 Id. at 342 (citing CML V, LLC v. Bax, 28 A.3d 1037, 1041 (Del. 2011)).
5 Id. at 342-43 (quoting Eliason v. Englehart, 733 A.2d 944, 946 (Del. 1999)).

4

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whole.”6

A defendant may petition the sentencing court for relief from designation as a
sex offender if three elements are satisfied:

a. The Tier II or Tier III offense for which the person was convicted was

a misdemeanor and the victim was not a child under 13 years of age; and

b. The person has not previously been convicted of a violent felony, or

any other offense set forth in paragraph (a)(4) of this section . . . . ; and

c. The sentencing court determines by a preponderance of the evidence

that such person is not likely to pose a threat to public safety if released

from the obligations imposed by this section, and by § 4120 of this title.7

DISCUSSION

Delaware’ s sex offender registration and notification scheme does provide the
possibility of relief from designation for sex offenders accused of Tier I
misdemeanors Mr. O’Dell’s petition will be granted because the uncontradicted
results of his psychological evaluation show that he is unlikely to reoffend.

I. The Relief-from-Designation Provision Allows the Possibilily of Relief for

Defendants Convicted of T ier IMisdemeanors

In construing the provisions of 11 Del. C. § 4121(d)(6), the Court will review
the background of its enactment and the decisional law that Delaware courts have

generated thus far. The Court determines, based on an analysis of the text, the

application of the canons of statutory construction, and a review of the legislative

 

6 Id. at 343 (quoting Taylor v. Diamond State Port Corp., 14 A.3d 536, 538 (Del. 2011)).
7 11 Del. C. § 4121(d)(6).

State v. Robert C. O ’Dell
I.D. No. 1507023289
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history, that the relief-from-designation provision permits offenders convicted of Tier
I misdemeanors to petition for relief.

A. Background

In order to frame the issues surrounding the interpretation of 11 Del. C.
§ 4121(d)(6), the Court will review the sex offender registration and notification
scheme as a whole, the federal and state legislative changes that led to the enactment
of Senate Bill 60 in 2007, and the case law that resulted from the enactment of Senate
Bill 60.

1 . Delaware ’s Sex Offender Registration Scheme

Delaware’s sex offender registration scheme contemplates three tiers of sex
offenses.8 For Tier II and Tier III offenses, the statute enumerates the crimes that
presumptively fall within each tier.9 Tierl includes all sex offenses not enumerated
within Tier II and Tier III.10 A comprehensive list of sex offenses that give rise to a
registration requirement is also provided within the statute.11

Once an individual is convicted or adjudicated delinquent of any sex offense,
“the court shall inform the person that the person shall be designated as a sex offender
and that a Risk Assessment Tier will be assigned to that person by the court.”12

Following the sentencing, “the sentencing court shall assign the defendant to the Risk

 

8 ii Del. C. §4121.

9 Id. §4121(<1)(1),(2).
1°1d. § 4121(d)(3).
111¢1. § 4121(3)(4).

12 Id. § 4121(b).

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Assessment Tier applicable for the originally charged offense.”13

Tier III crimes are among the most serious sexual crimes that an individual
might commit, including first and second degree rape.14 Tier II crimes are serious
sexual crimes that nonetheless are not as serious as Tier III offenses, including third
degree rape in the absence of certain aggravating circumstances, fourth degree rape,
and child pornography offenses.15 Tier I offenses are unenumerated, but include all
sex offenses that are designated as misdemeanors.16

An individual convicted of a misdemeanor sex crime may, under certain
circumstances, be assigned to a higher tier. For example, the State may move for a
defendant convicted of a Tier I offense to be designated to Tier II “if the sentencing
court determines by a preponderance of the evidence . . . that public safety will be
enhanced by assigning the offender to Risk Assessment Tier II.”17 Likewise, a
defendant convicted of a second Tier I offense within five years of the previous
offense will be designated to Tier II.18 And when a defendant is charged with one tier
of offense and ultimately pleads guilty to a lesser included charge of that offense, he

will be placed in the tier of the originally charged offerise.19

 

13 Id. § 4121(¢).

141d. § 4121(d)(1)a.

15 Id. § 4121(d)(2)a.

16 See id. § 4121(d)(3).
17 Ia'. § 4121(d)(2)f.

18 Id. § 4121(d)(5).

19 ld. § 4121(¢).

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Prior to amendments to the sex offender registration scheme in 2007, an
individual could petition the sentencing court for relief from designation prior to
sentencing if (l) the offense was a misdemeanor and the victim was not under 13
years of age, (2) the person had not previously been convicted of a violent felony or
sex offense, and (3) “[t]he sentencing court determine[d] by a preponderance of the
evidence that” the defendant “is not likely to pose a threat to public safety if released
from the obligations imposed by this section, and by § 4120 of this title.”z° The
provision imposed an additional requirement that a defendant could not petition for
relief if the victim was under eighteen unless the defendant was also under eighteen
at the time of the offense.21

2. The Sex Offender Registration and Notifieation Act (SORNA)

In 2006, Congress enacted the Adam Walsh Child Protection and Safety Act.22
Title I of the Act was designated as the Sex Offender Registration and Notification
Act (SORNA).23 SORNA was created “to protect the public from sex offenders and
offenders against children” by “establish[ing] a comprehensive national system for

the registration of those offenders.”24

 

11 ld_ § 4121(d)(6) (2006).
11 1a

22 Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248, 120 Stat. 587; see
generally State v. D.M. , No. 1108022401, 2013 WL 1845596, at *7-*8 (Del. Fam. Ct. Mar. 8, 2013)
(discussing the Adam Walsh Child Protection and Safety Act).

23 Adam Walsh Child Protection and Safety Act, 120 Stat. at 590.
24 Id., SeC. 102, 120 Stat. at 590.

State v. Robert C. O’Dell
I.D. No. 1507023289
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SORNA envisioned state registration requirements covering three tiers of
offenders, like Delaware’s scheme.25 Tier II or Tier III offenders were those who
committed “offense[s] . . . punishable by imprisonment for more than one year” that
were comparable to or more severe than certain enumerated federal offenses.26
SORNA did not contain a provision for relief from designation.27

States were given three years to implement SORNA’s provisions before their
failure to implement them would result in a decrease in certain federal funding.28
Prompt compliance (within one or two years) would result in bonus payments under
the statutorily created grant program.29

3. Senate Bill 60

In 2007, not long after the enactment of SORNA, the General Assembly
considered Senate Bill 60 (“SB 60”).30 The bill’s synopsis indicated that it was
intended to comply with SORNA’s requirements:

This bill amends the existing Megan’s Laws in order to conform
to recent federal legislative changes required under the ‘Adam Walsh
Act.’ . . . Other changes are intended to reflect practical concerns based
upon Delaware Supreme Court interpretations of the statutes. Outdated
hearing and timing requirements are eliminated based upon the

 

25 Id., sec. 111, 120 Stat. at 591.

26161'., SCC. 111, §§ 3, 4, 120 Stat. 31591.

27 But see id., sec. 115, 120 Stat. at 595.

28 Id., secs. 124, 125, 120 Stat. at 598.

29 Id., SCC. 126, 120 Stat. 81599.

30 Del. S.B. 60, l44th Gen. Assem., 76 Del. Laws ch. 25 (2007).

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State v. Robert C. O ’Dell
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compulsory nature of Delaware’s Megan’s Laws.31

ln its original form, SB 60 and its synopsis did not affect the relief-from-
designation provision found at 11 Del. C. § 4121(d)(6). After its introduction, an
amendment was introduced which would limit relief from designation for offenses
where the victim was less than twelve years old.32 Under the amendment, an offender
could not seek relief for a crime against a victim under twelve years of age unless the
offender was under eighteen at the time of the offense.33

On the day SB 60 was considered on the floor of the Senate, the first
amendment to the bill was stricken and a new amendment was introduced and passed
in its place.34 The new amendment, according to its synopsis, was intended to
accomplish the same change to the relief-from designation provision as its
predecessor: “This amendment . . . clarifies that no person shall be afforded relief
from designation as a sex offender if the victim was less than 12 years old at the time
of the crime, unless the person convicted was less than 18 years old at the time of the
crime.”35

Sponsors of SB 60 in both chambers invited the Chief of Staff of the Delaware

Department of Justice to address each chamber on the legislation as it was being

 

31Id. syn.

32 Id. amend. S.A. 1.

33 Id.

34 S.B. 60 actions history, http://legis.delaware.gov/BillDetail?legislationId=18337.
35 S.B. 60 amend. S.A. 2 syn.

10

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considered. Senators and representatives posed questions to the Chief of Staff to
clarify the effects of the bill’s adoption.

In responses to questioning in both chambers, the Chief of Staff explained that
the bill would preserve an avenue for relief from designation for offenders accused
of Tier I misdemeanors

In the Senate, a senator asked the Chief of Staff if someone guilty of a Tierl
offense would have any recourse if required to register.36 The Chief of Staff
explained that after ten years an offender could petition the Court, but further “you
would in that example as a misdemeanor offender be able to ask the Court not to ever
designate you as a sex offender, because the victim’s over 12, you’re over 18, it’s a
misdemeanor.”37

In the House, one representative expressed concern to the Chief of Staff that
an eighteen-year-old who committed unlawful sexual contact would not have
recourse.38 The Chief of Staff then explained “If you’re under 18 and your victim is

as well, you-there is an exception in the law that you do not have to be a registered

sex offender, and you can petition for that, actually, at sentencing-”39 The

 

36 Def.’s Mem. in Support of his Mot. For Relief from Sex Offender Designation Ex. B; see
also Compact disc: Floor Debate on Senate Bill 60 in the Delaware Senate at 29:20 (May 1, 2007)
(on file with Delaware State Archives).

37 Ia'.

36 Def.’s Mem. in Support of his Mot. For Relief from Sex Offender Designation Ex. B; see
also Compact disc: Floor Debate on Senate Bill 60 in the Delaware House of Representatives at 6:55
(May 3, 2007) (on file with Delaware State Archives).

39 Ia'.

11

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representative responded, “No, I appreciate that. I was referring to a court case with
an . . . actual 18 year old enrolled as a senior in high school.”46 The Chief of Staff
responded “Tier I offenders can also ask for the same kind of relief.”41

Senate Bill 60 was considered and passed by the Senate on May 1, 2007 and
sent to the House, which considered and passed it on May 3.42 lt was signed by the
Governor on May 17.43

3. Changes to the Relief-from-Designation Provision

Senate Bill 60 amended 11 Del. C. § 4121(d)(6) to substantially its current
form, adding “Tier II or Tier lll” to subparagraph “a” and the end of paragraph “d.”44
It also lowered the victim age restriction, permitting relief where the victim was
twelve or older instead of eighteen or older.45

As written, the current relief-from-designation provision permits relief when
three elements are metz

a. The Tier ll or Tier III offense for which the person was
convicted was a misdemeanor and the victim was not a child under 13
years of age; and

b. The person has not previously been convicted of a violent
felony, or any other offense set forth in paragraph (a)(4) of this section

 

. ; and
40 Id.
41 Id.
42 S.B. 60 actions history.
43 Id.
44 S.B. 60, sec. 49.
45 Id.

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c. The sentencing court determines by a preponderance of the

evidence that such person is not likely to pose a threat to public safety

if released from the obligations imposed by this section, and by § 4120

ofthis title.46

It prohibits relief for Tier ll or Tier III offenders if the victim was under twelve
years old unless the offender was less than eighteen years old at the time of the
crime.47

The language of the provision contains an apparent contradiction.
Subparagraph “a” refers to Tier II or Tier III misdemeanors, yet none of the
enumerated crimes in Tier ll or Tier III are misdemeanors The provision thus raises
a question of when, if at all, relief from designation would be available to an offender.

4. Cases Interpreting the Relief-from-Designation Provision

One of the first cases to address the revised relief-from-designation provision
was State v. Becker, a family court case.48 The defendant in that case was a juvenile

who had pleaded nolo contendere to two counts of Unlawful Sexual Contact in the

 

16 ii Del. c. § 4121(d)(6).
41 Id.

48 979 A.2d 1149 (Del. Fam. Ct. 2009), overruled by Fox v. State, 11 A.3d 226 (Table), 2010
WL 5342956 (Del. Dec. 20, 2010). As the State accurately points out, the same judge had earlier
remarked upon l l Del. C. § 4121(d)(6), buried within several layers of dicta in an opinion that spans
thirty pages on Westlaw. F letcher v. State, No. 0404010688, 2008 WL 2912048, at *26-*27 (Del.
Fam. Ct. June 16, 2008). Iri that case, the issue was not before the court and the judge remarked
upon the paragraph as an example of interpretive difficulties within Delaware’s sex offender
registration and notifications scheme. Id. at *26. The Court does not assign it much persuasive
value.

13

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Second Degree.49 He sought relief from registration under ll Del. C. § 4121(d)(6),
arguing that the ambiguity in subparagraph “a” should be construed against the state
in reliance on the rule of lenity.30 The family court agreed, finding the statute

ambiguous because “[t]here is an obvious drafting error contained in the statute

))51

Applying
the rule of lenity, the court construed the statute to provide the possibility of relief to

regarding Tier ll and Tier Ill misdemeanors, since no such crimes exist.

the defendant despite his pleas to felony sex offenses, noting that “[t]wo portions of
the same subsection seem to cancel out one another, and . . . speak[ ] of a type of
crime that does not exist.”52

Eventually, the Supreme Court overruled Becker in Fox v. State, holding that
11 Del. C. § 4121(d)(6) did not permit relief for juvenile sex offenders convicted of
felony sex crimes.33 While the Supreme Court did not address the issue, it is also
clear that the family court in Becker erred in applying the rule of lenity, because the
rule of lenity is not applicable to Title 11.54

The family court held that the relief-from-designation statute did not apply to

juveniles adjudicated delinquent of felony sex crimes in State v. E.A.33 In that case,

 

49 Id. at 1150.

30 Id. at 1155-57.

51Id. at 1157.

32 Id. at 1157.

33 Fox, 2010 WL 5342956, at *2.
34 11 Del. C. § 203.

33 No. 0901008717, 2010 WL 5692095, at * (Del. Fam. Ct. Feb. 4, 2010), ajj”’d sub nom.
State v. Adarns, ll A.3d 226 (Table), 2010 WL 5342957 (Del. Dec. 20, 2010).

14

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the court held that subparagraph “a” of the statute was not ambiguous because “there
are circumstances in which a person could be assigned to Tier II or Tier Ill following
a conviction for a misdemeanor offense.”36 As examples, the court made mention of
repeat offenders, those that pleaded guilty to a lesser-included offense of their
originally charged offense, and those whom the State sought, by motion, to have
designated to a higher tier.57 The court determined that the language was thus not
ambiguous, at least as to the unavailability of relief for felony offenders, and that “a
juvenile adjudicated delinquent for a misdemeanor may petition for relief regardless
of the age of the victim, but a juvenile adjudicated delinquent for a felony offense is
not eligible for relief from designation.”58 But it found that it was “not clear whether
the ‘Tier II or Tier IIl qualification’ in the statute provides that a person may not seek
relief for any Tier I offense or that any person designated to Tier I may seek relief.”59

The Supreme Court agreed with the family court’s determination In Grant v.
State66 and Adams v. State,61 the Supreme Court held that “a felony-level offender is
not eligible for relief from registration under title l 1, section 4121(d)(6) of the

Delaware Code because the language of the statute clearly states that only

 

36 Id. at *3.

37 Id.

38 Id. at *4.

59 Id.

60 11 A.3d 226 (Table), 2010 WL 5232959 (Del. D€C. 20, 2010).
61 2010 WL 5342957.

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misdemeanor-level offenders are eligible for relief.”62

In State v. K.S., the family court applied the above decisions and summarized
the three-element test from 11 Del. C. § 4121(d)(6) as follows, eliding the “Tier II or
Tier III” language from subparagraph “a”:

[M]isdemeanor-level offenders may seek relief from registration if 1) the
crime with which they were convicted . . . mandates placement on the
Sex Offender Registry at Tier l; 2) the offender has not previously been
convicted of a violent felony; and 3) the sentencing court determines by
a preponderance of the evidence that the offender is not likely to pose
a threat to the public safety if relieved from the registration
requirements.63

This Court confronted the construction of the relief-from-designation provision
in State v. Presz`dent.64 The defendant in President pleaded nolo contendere to four
counts of Unlawful Sexual Contact in the Third Degree, a Tier I misdemeanor.65 The
victim was eleven years old at the time of the offense.66 The defendant filed a motion
for relief from designation, and the State initially offered no specific objections to the
motion.67 The Court raised two concems: first, whether a defendant may seek relief

from designation for a Tier l offense like Unlawful Sexual Contact in the Third

 

62 Grant, 2010 WL 5232959, at *l (citing Adams, 2010 WL 5342957, at *2).

63 No. 0806024668, 2011 WL 5345404, at *3 (Del. Fam. Ct. June 23, 2011) (citing Grant,
2010 WL 5232959, at *1; Adams, 2010 WL 5342957, at *1-*2).

61 2014 wL 595406 (Dei. super. Jan. 2, 2014).
63 Id. at *l.

66 Id.

67 Id.

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Degree; and second, whether the victim’s age barred the defendant from seeking
relief.68 The Court sought supplemental memoranda, and the parties appeared to take
the position that the statute did not permit relief for Tier I offenders.69 The Court
accepted the parties’ position, and based its holding on the fact that, regardless of the
construction of the statute, the victim’s age barred the defendant from relief.7°

B. Constraing the Statute in Light of its Text, and Indicators of Legislative
Intent

In light of the text of the statute, a careful application of existing case law, and
the indicators of legislative intent within Code and SB 60’s legislative history, the
Court finds that l l Del. C. § 4121(d)(6) provides the possibility of relief f`or offenders
convicted of Tier l misdemeanor offenses.

1 . Rules of Statutory Construction
A statute “is ambiguous if it is susceptible of two reasonable interpretations.”71
“Where a statute contains unambiguous language that clearly reflects the intent of the
3172

legislature, then the language of the legislature controls.

“A statute which appears facially unambiguous can be rendered ambiguous by

 

68 Id. at *2.
69 Id.
70 Id. at *2-*3.

71 Bon Ayre Land, LLC v. Bon Ayre Cmty. Ass’n, 149 A.3d 227, 233 n.21 (Del. 2016)
(quoting Taylor v. Diarnond State Port Corp., 14 A.3d 536, 538 (Del. 2011)).

72 Hoover v. State, 958 A.2d 816, 820 (Del. 2008) (citing Sandt v. Del. Solid Waste Auth. , 640
A.2d 1030, 1032 (Del. 1994)).

17

State v. Robert C. O’Dell
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its interaction with, and its relation to, other statutes.”73 And “[w]hen a statute
contains ‘latent’ ambiguities despite its superficial clarity, courts may turn to
legislative history or other aids for guidance.”74

“[T]he Court may refer to parts of the legislative record,” including legislative
debates, “to establish the purpose of legislation where the record reveals more
information about the enactments.”75 Both the Supreme Court and this Court
occasionally turn to the debates of the General Assembly as evidence of legislative
intent.76

2. Analysis of Statutory Text

Turning first to the statutory text, this Court reiterates its earlier holding in
State v. President and the family court’s dicta in State v. E.A. and holds that the
language of the statute is ambiguous as to relief from designation for offenders
convicted of Tier I misdemeanors.77 Given the nature of the ambiguity and
contradiction, the rule against surplusage, and the Code’s own interpretive

framework, the best construction of the statute finds the possibility of relief for

offenders convicted of TierI misdemeanors

 

73 2A Sutherland Statutory Construction § 46:4 (7th ed. 2016).
74 Id.
15 Hoover, 958 A.2d at 820 (citing sri/nez v. Malarkey, 378 A.2d 133, 138 (Del. Ch. 1977)).

76 See, e.g., Hoover, 958 A.2d at 820; Doe No. 7 v. Indian River Sch. Dist., No. K09C-12-
042, 2012 WL 2044347, at *2 (Del. Super. Apr. 20, 2012); Mulford v. Dep ’t of Nat. Res. & Envtl
COnl‘rOl, NO. 05C-02-028, 2007 WL 4576616, at *4 (Del. Super. NOV. 5, 2007).

77 President, 2014 WL 595406, at *2; E.A., 2010 WL 5692095, at *4.

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The ambiguity in this statute arises from the contradiction in both the opening

part of paragraph (6) and within subparagraph (a):
(6) Notwithstanding any provision in this section or in § 4120 of

this title to the contrary, any person who would otherwise be designated

as a sex offender . . . may petition the sentencing court for relief from

such designation, and from all obligations imposed by this section and

§ 4120 of this title if:

a. The Tier II or Tier III offense for which the person was

convicted was a misdemeanor and the victim was not a child under 13

years of age . . . .73

As a structural matter, the provision starts with a sweeping scope, allowing
“any person who would otherwise be designated” to petition The scope of persons
that may petition for relief rapidly diminishes by imposition of a tripartite test. The
first element of that test is found in subparagraph “a,” which requires that the Tier II
or Tier Ill offense for which the person was convicted be a misdemeanor. As noted
by multiple courts and by Mr. O’Dell here, there are no Tier ll or Tier III
misdemeanors a facial contradiction

The State, and the family court in State v. E.A., rightly point out that an
offender may be designated to a higher tier than his underlying offense under certain
circumstances79 But the language of the subparagraph does not refer to Tier ll or

Tier III offenders; it refers instead to Tier II or Tier III ojj‘enses. As enumerated in

§ 4121, none of the offenses within Tier II or Tier III are misdemeanors The

 

11 11 Del. C. § 4121(d)(6).
19 E.A., 2010 wL 5692095, at *3.

19

State v. Robert C. O’Dell
I.D. No. 1507023289
March 6, 2017

contradiction in the statute is striking, because by either the federal or state
definitions Tier II or Tier III offenses are never misdemeanors

But resort to the textual canons of statutory construction can be of only limited
utility in this case. “It is the duty of the court to give effect, if possible, to every
clause and word of a statute, avoiding, if it may be, any construction which implies
that the legislature was ignorant of the meaning of the language it employed.”80 Put
differently, “[w]ords in a statute should not be construed as surplusage if there is a
reasonable construction which will give them meaning, and courts must ascribe a
purpose to the use of statutory language, if reasonably possible.”81 The issue in the
case of a contradiction such as this one is that either interpretation is in danger of
making part of the statute surplusage. Reading the statute to permit relief for Tier I
misdemeanants renders the phrase “Tier ll or Tier III” surplusage. But reading the
statute to prohibit relief for Tier I misdemeanants essentially treats the entire
paragraph as surplusage, because that reading would prohibit any offenders from
petitioning the sentencing court for relief. The less mischievous result would flow
from construing the statute to permit relief for Tier l offenders, and to view the
inclusion of the phrase “Tier II or Tier lll” in subparagraph “a” as a drafting error.

Perhaps more persuasive than the general canons of statutory construction are

the Criminal Code’s own interpretive framework and statement of purpose. The

 

80 Inhabitants of Montclair Twp. v. Ramsdell, 107 U.S. 147, 152 (1883).

81 Chase Alexa, LLC v. Kent Cty. Levy Court, 991 A.2d 1148, 1152 (Del. 2010) (quoting
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 900 (Del. 1994)).

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State v. Robert C. O ’Dell
I.D. No. 1507023289
March 6, 2017

Criminal Code discards the rule of lenity and instead mandates that “the provisions
herein must be construed according to the fair import of their terms to promote justice
and effect the purposes of the law, as stated in § 201 of this title.”82 Among the
purposes of the Code are “[t]o differentiate upon reasonable grounds between serious
and minor offenses and to prescribe proportionate penalties therefor” and “[t]o insure
the public safety by preventing the commission of offenses through the deterrent
influence of` the sentences authorized, the rehabilitation of those convicted and their
confinement when required in the interests of public protection.”83

While these interpretive guides do not provide carte blanche for any court to
depart from the text of a clear statute, they are helpful in determining which of the
competing interpretations to assign this contradictory and ambiguous one. Reading
the statute to allow relief for misdemeanants that were assigned to Tier ll or Tier lll,
but not to misdemeanants assigned to Tier I, would fly in the face of one of the basic
purposes of the Criminal Code. Tier l offenders are so because, of all persons
convicted of sex offenses, the crime for which they were convicted renders them
among the least likely to reoffend. An offender who would otherwise be designated
to Tier I would only arrive at a higher tier because of a more serious risk to reoffend
based on (1) actual reoffense, (2) evidence from the State that assigning the offender
a higher classification would enhance public safety, or (3) the fact that the offender

pleaded guilty to a lesser-included charge of a more serious offense, Even though

 

111 11 Del. C. § 203.
11 Id. § 201.

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State v. Robert C. O ’Dell
I.D. No. 1507023289
March 6, 2017

registration and community notification is not a penalty as such, it would thwart the
basic purposes of the Criminal Code to provide, disproportionate to the offender’s
risk level, the possibility of complete relief from all registration and notification
requirements to moderate and high-risk offenders, while denying it to low-risk
offenders

Given the nature of the ambiguity and contradiction within the statute, the rule
against surplusage, and the Code’s own interpretive framework, the best
interpretation of the statute strikes “Tier II and Tier III” from § 4121(d)(6)a.,
providing the possibility of relief for Tier l offenders so long as the other elements
are met. This reading comports with Supreme Court precedent, which suggests that
misdemeanants are to be afforded the possibility of relief from designation under the
provision,84 and the family court’s most recent interpretation of the statute.85

3 . Legislative History

The legislative history of the statute also augurs well for this interpretation
One of the key elements that the parties did not provide when this Court previously
considered § 4121(d)(6) was any argument or evidence relating to the intent of the
legislature.86 With the benefit of full briefing and the opportunity to review the
legislative record, the Court holds that the unmistakable intent of the legislature was

to provide an avenue for relief for Tier l misdemeanor offenders To the extent that

 

84 Grant, 2010 WL 5232959, at *1 (Citirlg Addms, 2010 WL 5342957, at *2).
85 State v. K.S., 2011 WL 5345404, at *3.
86 See State v. President, 2014 WL 595406, at *2.

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State v. Robert C. 0 ’Dell
I.D. No. 1507023289
March 6, 2017

President differs in result or dicta from this decision, it is overruled.

While the Court uses caution in assigning intent to the General Assembly based
on the statements of its individual members, it does “consider statements by any
members during legislative debates which show a common agreement in the
legislature about the meaning of an ambiguous provision, and statements which are
consistent with the statute’s language and other legislative events.”87

Here, the answers provided by the Chief of Staff of the Department of Justice
as well as the questions asked by individual members reveal a consensus
understanding of the effects of the bill. There is no question that all of the members
present at the final reading of the bill in their respective chambers were told by a
representative of the Department of Justice that the section as written provided an
avenue for relief for offenders convicted of Tier I misdemeanors And questions by
the members revealed a desire that those accused of minor sexual crimes have an
opportunity to seek relief from designation at sentencing When viewed in light of
the synopsis of the amendment, which indicated a desire to limit this relief to those
who had not committed offenses against children, the legislative debates show a
General Assembly intent upon leaving open a discretionary avenue for a sentencing
court to consider whether those convicted of Tier l misdemeanors might merit relief
from designation under the sex offender registration and notification scheme.

The legislative history of 11 Del. C. § 4121(d)(6) confirms that the

contradictory language of the statute is best read to permit Tier l misdemeanor

 

87 2A Sutherland Statutory Construction § 48:13 (7th ed. 2016) (citations omitted).

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State v. Robert C. O ’Dell
I.D. No. 1507023289
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offenders who otherwise meet the requirements of the paragraph to receive relief from
designation as a sex offender.
II. Mr. 0 ’Dell is Entitled to ReliefBecaase He is Unlikely to Pose a Tlireat
to Public Safety if Relieved from his Obligation to Register

Having determined that misdemeanor offenders like Mr. O’Dell may petition
the Court for relief from designation as a sex offender, the Court must now determine
whether Mr. O’Dell himself has satisfied the three elements required by the statute.

The State and Mr. O’Dell agree that the offense with which he was charged is
a Tier l misdemeanor offense and that he was not previously convicted of a felony.
The sole issue for the Court’s decision is whether Mr. O’Dell has shown “by a
preponderance of the evidence that [he] is not likely to pose a threat to public safety
if released from the obligations imposed” by the sex offender registration and
notification scheme.88

The Court at the outset notes that Mr. O’Dell’s plea of guilty to Unlawful
Sexual Contact in the Third Degree arises from a charge that he had sexual relations
with a girl four years his junior. Their ages (he was nineteen at the time and the
victim was fifteen), the distance Mr. O’Dell had to travel (walking from Delmar,
Maryland to the Dover area), and the fact that Mr. O’Dell aided the victim when she
snuck away from her family’s home with him are aggravating circumstances in the
Court’ s view and are indicative of the serious nature of the crime to which Mr. O’Dell

has pleaded guilty.

 

11 11 Del. C. §4121(<1)(6)¢.

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State v. Robert C. 0 ’Dell
I.D. No. 1507023289
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With that consideration in mind, however, the question is whether Mr. O’Dell
has shown, by a preponderance of the evidence, that he is not likely to pose a threat
to public safety going forward. To that end, he has offered evidence of a
psychological evaluation which indicated that he presents a low-to-moderate or
moderate risk of reoffense.

The Court assigns weight to the results of that evaluation He has experienced
developmental delays as a result of a brain injury and been subject to abuse at home.
He did not indicate any other age-inappropriate or criminal sexual behavior. At the
time of his evaluation, he had a fairly restricted living situation with his mother.

The evaluator noted that some of his risk factors are mitigated by his
circumstances For example, Mr. O’Dell received points on the STATIC-99R for
having a young age at the time of the offense, never living with a significant other,
and having an unrelated victim. The fact that he never lived with a significant other
does not substantially elevate his risk, the examiner opined, because he had
established romantic relationships in the past and desires a long-term committed
relationship The STATIC-99R indicated a Low-Moderate risk of reoffense.

Mr. O’Dell earned a Moderate risk result on the Stable 2007 based on some of
the same factors, and additionally “having few social supports, feeling lonely and
rej ected, being impulsive, and having some negative emotionality.” Mr. O’Dell ’ s risk
factors are explained in part by his living environment and the experience of past
traumas, which could be mitigated by mental health treatment.

The evaluator also pointed out that “there is no indication that [Mr. O’Dell]

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State v. Robert C. O’Dell
I.D. No. 1507023289
March 6, 2017

would be exploitative in his sexual relationships and he is unlikely to engage in a
future sexual offense.” Among other ways to mitigate Mr. O’Dell’s risk would be
participation in mental health treatment and substance abuse treatment. The evaluator
also suggested a change in housing. At the hearing on these motions, Mr. O’Dell’s
counsel indicated that Mr. O’Dell has moved out of his mother’s house and is now
living with his sister.

In view of the uncontradicted evidence provided by Mr. O’Dell of his relatively
low risk of reoffense, the Court finds that he is not likely to pose a threat to public
safety if relieved of his obligations under the sex offender statute, and will grant him
relief from designation as a sex offender.

CONCLUSION

The statute provides an avenue for offenders convicted of Tier l misdemeanors
to petition for relief from the sex offender registration and notification statutes The
Court, upon consideration of Mr. O’Dell’ s motion for relief from designation, and the
State’s motion to designate Mr. O’Dell at Tier I, finds that Mr. O’Dell is unlikely to
pose a threat to public safety if his motion is granted. The State’s Motion to

Designate is DENIED and Mr. O’Dell’s Motion for Relief is GRANTED.

IT IS SO ORDERED. M

Hon. William i. Witham, Jr.
WLW/dmh
oc: Prothonotary
cc: Kathleen A. Dickerson, Esquire
Anthony J. Capone, Esquire

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