           IN THE SUPREME COURT OF THE STATE OF DELAWARE

JASON KOKINDA,                        §
                                      §      No. 27, 2017
      Defendant Below,                §
      Appellant,                      §      Court Below–Superior Court of the
                                      §      State of Delaware
      v.                              §
                                      §      C.A. No. N16M-03-197
STATE OF DELAWARE,                    §
                                      §
      Plaintiff Below,                §
      Appellee.                       §

                         Submitted: April 3, 2017
                         Decided:   June 26, 2017

Before STRINE, Chief Justice; VALIHURA and SEITZ, Justices.

                                    ORDER

      This 26th day of June 2017, it appears to the Court that:

      (1)    The appellant, Jason Kokinda, has appealed the Superior Court’s

January 4, 2017 order affirming a Commissioner’s order granting the State’s motion

to designate Kokinda as a Tier II sex offender in Delaware. The appellee, the State

of Delaware, has filed a motion to affirm the Superior Court’s judgment on the

ground that it is manifest on the face of Kokinda’s opening brief that the appeal is

without merit.

      (2)    In 2008, Kokinda was indicted in the Superior Court of New Jersey for

the offense of Endangering Welfare of Children Second Degree. At the time of the
indictment, the New Jersey statute under which Kokinda was charged defined

Endangering Welfare of Children Second Degree as:

       Any person who knowingly receives for the purpose of selling or who
       knowingly sells, procures, manufactures, gives, provides, lends, trades,
       mails, delivers, transfers, publishes, distributes, circulates,
       disseminates, presents, exhibits, advertises, offers or agrees to offer,
       through any means, including the Internet, any photograph, film, video
       tape, computer program file, video game or any other reproduction or
       reconstruction which depicts a child engaging in a prohibited sexual act
       or in the simulation of such an act, is guilty of a crime of the second
       degree.1

In 2009, Kokinda pled guilty to Endangering Welfare of Children Second Degree

and was sentenced to a period of incarceration.

       (3)    All states, the District of Columbia, and the federal government have

laws providing for the mandatory registration of sex offenders and corresponding

community notification.2        Delaware’s sex offender registry is governed by a

statutory scheme,3 which provides, in relevant part, that individuals convicted of

certain sex offenses in Delaware—as well as individuals convicted of comparable

sex offenses in other states and residing in Delaware—must comply with Delaware’s

sex offender registration requirements.4




1
  N.J.S.A. 2C:24–4b(5)(a) (2005).
2
  Smith v. Doe, 538 U.S. 84, 89–90 (2003).
3
  11 Del. C. §§ 4120–4123 (Supp. 2017).
4
  11 Del. C. § 4121(a)(4)a, c.
                                             2
       (4)    Following his release from incarceration in New Jersey, Kokinda

moved to Delaware. Kokinda registered with the Delaware State Police as a

Delaware sex offender on November 3, 2015.

       (5)    On March 30, 2016, the State moved to designate Kokinda as a Tier II

sex offender.5 The State based the motion on a claim that Kokinda’s New Jersey

conviction of Endangering Welfare of Children Second Degree was comparable to

the offense of Dealing in Child Pornography, a class B felony, found in 11 Del. C.

§ 1109. Subsection 3 of 11 Del. C. § 1109 provides that a person is guilty of Dealing

in Child Pornography when:

       The person knowingly distributes or disseminates, by means of
       computer or any other electronic or digital method, or by shows or
       viewings, any motion picture, video or other visual depiction of a child
       engaging in a prohibited sexual act or the simulation of such an act.
       The possession or showing of such motion pictures shall create a
       rebuttable presumption of ownership thereof for the purposes of
       distribution or dissemination.6

       (6)    On April 25, 2016, the Superior Court held a hearing on the motion to

designate Kokinda as a Tier II sex offender. Kokinda submitted a “motion in

opposition to sex offender classification” and made an oral presentation opposing

the motion to designate. Kokinda’s position, fairly summarized, was that certain

defects in his underlying New Jersey conviction—namely, that his guilty plea was


5
   There are three risk assessment tiers, each of which has a particular set of registration
requirements. See 11 Del. C. § 4121(d), (e) (describing risk assessment tiers).
6
  11 Del. C. § 1109(3).
                                             3
coerced—should act as a bar to the State’s efforts to classify him as a sex offender

in Delaware. In response, the State argued that Kokinda could not use the sex

offender registry proceeding in Delaware as a forum to collaterally attack his New

Jersey conviction. At the conclusion of the hearing, and in a written order on April

27, 2016, the Commissioner granted the motion to designate and denied Kokinda’s

motion in opposition to that motion.

       (7)     Kokinda filed objections to the Commissioner’s April 27 order.7 On

January 4, 2017, the Superior Court issued a letter order affirming the

Commissioner’s order. The Superior Court stated:

       After reviewing your objections to the Commissioner’s April 27, 2016
       Order and reviewing de novo the Commissioner’s April 27, 2016 Order,
       the Court finds your objections are without merit. You pled guilty to
       [Endangering Welfare of Children Second Degree] in New Jersey on
       January 5, 2009. The State presented a certified copy of your New
       Jersey conviction to the Court. Pursuant to 11 Del. C. § 4121(a)(4)(c),
       your New Jersey conviction renders you a sex offender under the laws
       of Delaware.

       The State demonstrated that the statute under which you were convicted
       in New Jersey mirrors a conviction for Dealing in Child Pornography
       in Delaware. Pursuant to 11 Del. C. § 4121(d)(2)(f), a person convicted
       of Dealing in Child Pornography under 11 Del. C. § 1109 “shall” be
       designated as a Tier II Sex Offender upon motion of the State.
       Therefore, your Tier II classification was appropriate when you were a
       resident of Delaware.8

7
  Before filing the objections, Kokinda attempted to appeal the Commissioner’s order to this Court.
We dismissed the appeal and directed that Kokinda be given the opportunity to file objections to
the order in the Superior Court. Kokinda v. State, 150 A.3d 1210, 2016 WL 6819735 (Del. Nov.
17, 2016) (ORDER).
8
  Kokinda v. State, C.A. No. N16M-03-197, at 1 (Del. Super. Ct. Jan. 4, 2017).
                                                4
This appeal followed.

      (8)    In his opening brief on appeal, Kokinda continues to claim that he

cannot be classified as a sex offender in Delaware because of defects in his New

Jersey conviction. His argument is without merit. Kokinda’s collateral attack on his

New Jersey conviction was outside the scope of the Superior Court proceedings.

Unless and until Kokinda’s New Jersey conviction is vacated in a proper proceeding

in New Jersey, or by a federal court, the New Jersey conviction is valid.

      (9)    Because Kokinda’s New Jersey conviction must be regarded as valid,

we have considered the parties’ positions on appeal and the Superior Court record,

including the transcript of the hearing held on April 25, 2016, to decide if Kokinda’s

New Jersey conviction qualified as a Tier II sex offense under Delaware law. The

Superior Court properly determined that, in 2016, Kokinda qualified as a Tier II sex

offender under Delaware’s sex offender registration statute. In 2016, Kokinda was

a Delaware resident who was convicted in New Jersey, under New Jersey law, of

Endangering Welfare of Children Second Degree, a child sex offense comparable to

Dealing in Child Pornography, a class B felony and Tier II sex offense in Delaware.




                                          5
     NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED. The judgment of the Superior Court is AFFIRMED.

                                BY THE COURT:
                                /s/ Leo E. Strine, Jr.
                                Chief Justice




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