PRESENT:   All the Justices

JEREMY WADE SMITH
                                                OPINION BY
v.   Record No. 121579                    JUSTICE WILLIAM C. MIMS
                                               June 6, 2013
COMMONWEALTH OF VIRGINIA

           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                   Clarence N. Jenkins, Jr., Judge

      In this appeal, we consider whether the retroactive

application of a 2008 amendment to Code § 9.1-902 resulted in

contractual and constitutional violations by allegedly

interfering with a 1999 plea agreement.

           I.   BACKGROUND AND MATERIAL PROCEEDINGS BELOW

      In February 1999, a grand jury in the City of Richmond

indicted Jeremy Wade Smith for rape in violation of Code §

18.2-61.   The indictment alleged that Smith, age twenty-two at

the time, engaged in sexual activity with a fourteen-year-old

girl, resulting in the birth of a child.

      Smith entered into a plea agreement.   He agreed to plead

guilty to the reduced charge of carnal knowledge of a minor in

violation of Code § 18.2-63, and the Commonwealth agreed to

recommend a suspended sentence.    The plea agreement contained

an integration clause stating that it “contain[ed] the entire

agreement between the parties, both oral and written.”      The

agreement did not reference the registration requirements

applicable to convicted sex offenders.    The circuit court
reluctantly accepted the plea agreement and sentenced Smith to

ten years’ incarceration with the entire term suspended.    The

Commonwealth reminded the court that Smith would be required to

register with the Virginia Department of State Police (“State

Police”) as a sex offender.    Smith’s counsel indicated that he

understood this requirement.

     At the time of Smith’s conviction, carnal knowledge of a

minor was classified as a non-violent sex offense.    Former Code

§ 19.2-298.1 (1995 & Supp. 1999).    As a non-violent sex

offender, Smith was required to register with the State Police

annually for 10 years, after which he could petition for

expungement. 1   Former Code §§ 19.2-298.2, -298.3(A) (1995 &

Supp. 1999).

     In 2006, the federal government enacted the Adam Walsh

Child Protection and Safety Act.     See 42 U.S.C. § 16911 et seq.

(2006).   Title I of the Act, known as the Sex Offender

Registration & Notification Act (“SORNA”), required Virginia to

implement comprehensive sex offender registration standards. 2

In 2008, the General Assembly amended Code § 9.1-902 (former

     1
       At the time Smith was convicted, the statutory provisions
governing sex offender registration were located in former Code
§§ 19.2-298.1 through 19.2-298.4 (2000 & Supp. 2002). In 2003,
the General Assembly repealed these Code sections and enacted
the Sex Offender and Crimes Against Minors Registry Act, Code §
9.1-900 et seq., 2003 Acts ch. 584.
     2
       Failure to implement such standards would have resulted
in a partial loss of federal funding for state and local law
enforcement programs. See 42 U.S.C. § 16925 (2006).

                                 2
Code § 19.2-298.1) to comply with SORNA.   As a result, Smith’s

conviction for carnal knowledge of a minor was retroactively

reclassified as a “sexually violent offense,” and he became

subject to more stringent registration requirements.   2008 Acts

ch. 877.    Particularly, Smith now must register every 90 days

for the rest of his life, with no right to petition for

expungement.   Code §§ 9.1-903, -904.

     In February 2010, Smith filed a complaint in the Circuit

Court of the City of Richmond asserting that he should not be

classified as a violent sex offender for purposes of the

registration requirements.   Smith argued that the

reclassification of his offense violated his contractual and

constitutional rights.   He asserted that the reclassification

(1) unilaterally altered the terms of his plea agreement,

constituting a breach of contract; (2) deprived him of vested

contractual rights without just compensation, constituting an

unconstitutional taking; and (3) violated his procedural due

process rights.

     Smith and the Commonwealth filed cross-motions for summary

judgment.   Smith claimed that the sex offender registration

requirements in effect when he entered the plea agreement were

part of the agreement as if they had been explicitly

incorporated therein.    Thus, he contended that reclassifying

his offense breached the plea agreement and deprived him of


                                 3
vested contractual rights without just compensation or due

process of law.    The Commonwealth responded that Smith had no

contractual rights, vested or otherwise, regarding the sex

offender registration requirements because the plea agreement

contained an integration clause and did not reference the

registration requirements.

     The circuit court granted summary judgment in favor of the

Commonwealth.    It held that reclassifying Smith’s conviction

did not constitute a material breach of contract.    In addition,

it concluded that the registration requirements were not an

integral part of Smith’s inducement to enter into the plea

agreement, which held no promise or vested right that the

registration laws would not subsequently change.    Because Smith

had no vested contractual rights with respect to the

registration requirements, the circuit court reasoned that

there was no unconstitutional taking or procedural due process

violation. 3   Accordingly, the court dismissed Smith’s claims

with prejudice.    This appeal followed.

                             II.   ANALYSIS

     The crux of Smith’s argument is that the 1999 plea

agreement was a contract that incorporated the sex offender


     3
       Regarding the procedural due process claim, the circuit
court also held that a hearing would not have established facts
relevant to the legislature’s statutory scheme; therefore, no
additional process was necessary.

                                   4
registration laws in existence at the time of the agreement.

Thus, he contends that the Commonwealth materially breached the

plea agreement and deprived him of vested contractual rights by

subsequently amending the registration laws and retroactively

enforcing them against him.

     For Smith to prevail, he first must establish that the

1999 sex offender registration laws became terms of the plea

agreement.   The plea agreement is silent as to the registration

requirements.   Thus, Smith’s sole argument is that the plea

agreement implicitly incorporated the 1999 registration laws as

contractual terms by operation of law.

     Smith relies on this Court’s decision in Wright v.

Commonwealth, 275 Va. 77, 655 S.E.2d 7 (2008).    In Wright, the

defendant entered into a plea agreement that reduced his charge

from capital to first degree murder and provided for a sentence

of life imprisonment.     Id. at 79, 655 S.E.2d at 8.   The trial

court accepted the plea agreement, but also imposed a

statutorily mandated period of post-release supervision and

suspended incarceration that was not referenced in the plea

agreement.    Id.   The defendant challenged the trial court’s

imposition of the additional term, and this Court upheld the

sentence.    The Court acknowledged that general principles of

contract law apply to plea agreements and stated that “[t]he

law effective when the contract is made is as much a part of


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the contract as if incorporated therein.”    Id. at 81-82, 655

S.E.2d at 10 (internal quotation marks and citations omitted).

In other words, the Court concluded that the statute mandating

post-release supervision and suspended incarceration was an

implicit term of the plea agreement.

     Consistent with our decision in Wright, we agree that the

1999 sex offender registration laws were implicit terms of

Smith’s plea agreement.   Thus, as in Wright, Smith could not

refuse to abide by the registration requirements simply because

they were not expressly listed in the agreement.    The question

before us is whether the General Assembly could subsequently

change the law in effect at the time of the plea agreement.

     Smith argues that it could not.    He asserts that, for

purposes of his plea agreement, the law effective in 1999 also

implicitly incorporated Article I, Section 11 of the

Constitution of Virginia and Code § 1-239, which together

prohibited the Commonwealth from altering contracts via

retroactive amendments to the law. 4   Therefore, Smith argues


     4
       Article I, Section 11 provides that “the General Assembly
shall not pass any law impairing the obligations of contracts.”
Code § 1-239 states:

     No new act of the General Assembly shall be construed
     to repeal a former law . . . or any right accrued, or
     claim arising under the former law, or in any way
     whatever to affect any such . . . right accrued, or
     claim arising before the new act of the General
     Assembly takes effect.

                                6
that the plea agreement not only incorporated the 1999 sex

offender registration laws, but gave him a vested right that

amended registration laws would not apply to him.

     This argument has no merit.     It is well established that

Article I, Section 11 and Code § 1-239 must be interpreted to

accommodate the inherent police power of the state to safeguard

the interests of its people.   This Court has stated that

contracts must be read “as containing an implied condition that

[they are] subject to the exercise of the [s]tate’s regulatory

police power.”    Haughton v. Lankford, 189 Va. 183, 190, 52

S.E.2d 111, 114 (1949); see also United States Trust Co. v. New

Jersey, 431 U.S. 1, 22 (1977).     Thus, contracts are deemed to

implicitly incorporate the existing law and the reserved power

of the state to amend the law or enact additional laws for the

public welfare.    Haughton, 189 Va. at 190, 52 S.E.2d at 114.

     The General Assembly’s reclassification of carnal

knowledge of a minor as a “sexually violent offense” was an

exercise of the state’s regulatory police power.    Code § 9.1-

902 was amended to bring Virginia into compliance with the

federal sex offender registration guidelines set forth in

SORNA.   The rationale behind these federal guidelines was “[t]o

protect children from sexual exploitation and violent crime

. . . .”   Pub. L. No. 109-248, Title I, § 102, 120 Stat. 587,

587, 590 (2006).


                                 7
     Smith argues that amending Code § 9.1-902 was an improper

use of the state’s police power because the true reason behind

the amendment was to avoid the loss of federal funding.    We

disagree.   Regardless of federal funding, Code § 9.1-902 was

amended to better protect Virginians against sexually motivated

crimes.   This purpose is squarely within the Commonwealth’s

police power to protect the public safety.

     Accordingly, the reclassification of Smith’s conviction

was not a breach of contract.   When Smith entered into the plea

agreement he had no contractual right that his sex offense

would never be subject to future sex offender legislation.

While the agreement implicitly incorporated the 1999

registration laws, it said nothing to indicate that Smith would

only be bound by the law in effect at the time of the

agreement, i.e., the 10-year registration requirement then

applicable to non-violent sex offenders. 5   Furthermore, the plea

agreement contained an implied condition that Smith would

remain subject to the state’s future exercise of its police

power.    That power included the inherent authority to pass non-

punitive legislation regulating convicted sex offenders.

     Because we find that Smith had no vested contractual

rights with respect to the 1999 registration requirements, his

     5
       We do not at this time address whether the
reclassification of a conviction would constitute a breach of
any such express contractual clause.

                                 8
constitutional claims also must fail.   Smith first argues that

the Commonwealth violated Article I, Section 11 of the

Constitution of Virginia by depriving him of his contractual

rights under the plea agreement without just compensation.

Article I, Section 11 states:

     [T]he General Assembly shall pass no   law whereby
     private property, the right to which   is fundamental,
     shall be damaged or taken except for   public use. No
     private property shall be damaged or   taken for public
     use without just compensation to the   owner thereof.

     Smith is correct that vested contractual rights qualify as

private property that may not be taken without just

compensation.   See Lynch v. United States, 292 U.S. 571, 579

(1934).    However, as discussed, Smith did not have any vested

contractual rights with respect to the 1999 registration

requirements.   The Commonwealth was permitted to enact

retroactive legislation regulating convicted sex offenders as

part of its police power.   Thus, the reclassification of

Smith’s conviction was not an unconstitutional taking.

     Smith also argues that his procedural due process rights

were violated because he was deprived of contractual rights

without an opportunity to be heard.   Article I, Section 11 of

the Constitution of Virginia provides that, “no person shall be

deprived of his life, liberty, or property without due process

of law.”   “[D]ue process of law requires that a person shall

have reasonable notice and a reasonable opportunity to be heard


                                 9
before an impartial tribunal, before any binding decree can be

passed affecting his right to liberty or property.”    Ward

Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626, 630, 59

S.E. 476, 479 (1907) (internal quotation marks omitted).

      For the same reason that the reclassification of Smith’s

conviction was not an unconstitutional taking, it also was not

a violation of procedural due process.   Due process analysis

presupposes the existence of an enforceable right.    We

previously have held that convicted sex offenders have no

liberty interest to be free from quarterly registration

requirements.   McCabe v. Commonwealth, 274 Va. 558, 565, 650

S.E.2d 508, 512 (2007).   Likewise, they have no fundamental

right to rely on the civil legislative scheme in existence at

the time of pleading guilty.   Id. at 565-66, 650 S.E.2d at 512-

13.   Because in this particular case Smith had no vested

contractual rights with respect to the 1999 registration

requirements, there was no procedural due process violation. 6




      6
       Even if Smith did have contractual rights with respect to
the 1999 registration requirements, no additional process was
necessary. Classification of a crime as a “sexually violent
offense” under Code § 9.1-902 is based solely on the nature of
the crime. Thus, conviction of carnal knowledge of a minor who
was more than five years younger than the perpetrator is the
only fact relevant to the classification determination, and
nothing Smith could have presented at a hearing would have
changed that fact. See McCabe, 274 Va. at 567-68, 650 S.E.2d
at 513-14.

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                         III. CONCLUSION

     Since there were no contractual or constitutional

violations resulting from the reclassification of Smith’s

conviction, the circuit court properly dismissed his petition

for expungement and for a permanent injunction.   Accordingly,

we will affirm the judgment of the circuit court.

                                                         Affirmed.




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