                                 Cite as 2017 Ark. App. 574

                 ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                       No. CR-17-294


                                                   Opinion Delivered   November 1, 2017
WAYNE TRAVIS RAY
                                APPELLANT          APPEAL FROM THE SALINE
                                                   COUNTY CIRCUIT COURT
V.                                                 [NO. 63CR-99-114]

STATE OF ARKANSAS                                  HONORABLE GRISHAM PHILLIPS,
                                  APPELLEE         JUDGE

                                                   AFFIRMED



                           N. MARK KLAPPENBACH, Judge

       Appellant Wayne Travis Ray petitioned the Saline County Circuit Court to terminate

his obligation to register as a sex offender pursuant to Arkansas Code Annotated section

12-12-919. He also filed a motion seeking to have that statute declared unconstitutional.

The circuit court denied both requests. On appeal, Ray argues that section 12-12-919 is

unconstitutional as applied to him under the equal protection clause and is an

unconstitutional ex post facto law.

       Arkansas Code Annotated section 12-12-919(b)(1)(A)(i) (Repl. 2016) provides that

fifteen years after having been released from incarceration, a sex offender may apply for an

order to terminate the obligation to register. The court shall grant an order terminating the

obligation to register upon proof by a preponderance of the evidence that the applicant has

not been adjudicated guilty of a sex offense for fifteen years and is not likely to pose a threat

to the safety of others. Ark. Code Ann. § 12-12-919(b)(2). However, this process does not
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apply to sex offenders who are required to make lifetime registration under Arkansas Code

Annotated section 12-12-919(a), including a sex offender who “[h]as pleaded guilty or nolo

contendere to or been found guilty of a second or subsequent sex offense under a separate

case number, not multiple counts on the same charge.”1              The lifetime-registration

requirement of section 12-12-919 was added to the statute by Act 1743 of 2001. Before that

amendment, the statute provided a method by which all sex offenders could seek termination

of the obligation to register.

       Ray’s obligation to register as a sex offender stemmed from his 1999 Saline County

Circuit Court conviction for one count of sexual abuse in the first degree. Ray pleaded

guilty in that case and was sentenced to five years’ imprisonment and five years’ suspended

imposition of sentence. In April 2016, Ray filed a petition to terminate his obligation to

register. He alleged that he had been released from the Department of Correction on

November 1, 2000, had not been found guilty of a sex offense during the fifteen years since

his release, and was not likely to pose a threat to the safety of others. However, Ray’s

petition also noted that days after his 1999 conviction in Saline County Circuit Court, he

was convicted in the Pulaski County Circuit Court of the same offense against the same



       1
        Three other categories of sex offenders are required to submit to lifetime registration
under the current version of the statute: offenders found to have committed an aggravated
sex offense; offenders determined by the court to be or assessed as a Level 4 sexually
dangerous person; and offenders convicted of rape by forcible compulsion pursuant to section
5-14-103(a)(1) or other substantially similar offense in another jurisdiction. Ark. Code Ann.
§ 12-12-919(a).

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victim. The sentences in those cases were ordered to run concurrently.

       The State responded that Ray’s petition should be denied because he was likely to

pose a threat to others and that he should be reassessed with the Sex Offender Community

Notification Assessment Program.       Subsequently, Ray filed a motion to find section

12-12-919 unconstitutional. He alleged that he had been charged and convicted in two

separate cases due to his move from one county to another but that the victim was the same

in both cases, and the crimes had been committed over the course of several years. He

claimed that the requirement in section 12-12-919 of lifetime registration for offenders found

guilty of a subsequent sex offense under a separate case number was unconstitutional as

applied to him under the equal protection clauses of the United States and Arkansas

Constitutions. He also alleged that the statute was an unconstitutional ex post facto law

under the United States and Arkansas Constitutions.

       The State responded that Ray was not eligible under the statute to apply for an order

terminating his obligation to register. The Attorney General intervened and filed a response

to Ray’s constitutional challenges. Following a hearing, the circuit court entered an order

denying Ray’s petition to terminate his obligation to register because he had pleaded guilty

to sex offenses in two separate cases. The court found that section 12-12-919 was not an

unconstitutional ex post facto law because it was regulatory, not punitive, in nature and that

the statute did not violate Ray’s equal protection rights because it was supported by at least

one rational basis.


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       The general rule in cases involving a question of the constitutionality of a statute is

that the statute is presumed constitutional, and the burden of proving otherwise is on the

challenger of the statute. Kellar v. Fayetteville Police Dep’t, 339 Ark. 274, 5 S.W.3d 402

(1999). Because statutes are presumed to be framed in accordance with the Constitution,

they should not be held invalid for repugnance thereto unless such conflict is clear and

unmistakable. Id.

       Ray first argues that application of the provision of section 12-12-919 requiring

lifetime registration in his case violates his rights to equal protection under the federal and

state constitutions. Equal protection under the law is guaranteed by the Fourteenth

Amendment to the United States Constitution and by article 2, sections 2, 3, and 18 of the

Arkansas Constitution. In deciding whether an equal-protection challenge is warranted,

there must first be a determination that there is a state action which differentiates among

individuals. Arnold v. State, 2011 Ark. 395, 384 S.W.3d 488. Ray has established that section

12-12-919 differentiates among defendants who are convicted of sex offenses in more than

one case and those who are convicted in only a single case. Ray does not dispute that the

rational-basis test is the applicable constitutional standard of review. Under the rational-basis

test, we presume the statute to be constitutional and rationally related to achieving its

objectives. Arnold, supra. The party challenging the constitutionality of the statute must

prove that the statute is not rationally related to achieving any legitimate governmental

objective under any reasonably conceivable fact situation. Id.


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       Equal protection does not require that persons be dealt with identically; it only

requires that classification rest on real and not feigned differences, that the distinctions have

some relevance to the purpose for which the classification is made, and that their treatment

be not so disparate as to be arbitrary. Akers v. State, 2015 Ark. App. 352, 464 S.W.3d 483.

When addressing an equal-protection challenge to a statute, it is not our role to discover the

actual basis for the legislation. Id. We merely consider whether there is any rational basis

that demonstrates the possibility of a deliberate nexus with state objectives so that legislation

is not the product of arbitrary and capricious government purposes. Id. If we determine that

any rational basis exists, the statute will withstand constitutional challenge. Id.

       Ray argues that the requirement of lifetime registration for defendants convicted in

more than one case is intended to protect the public from individuals who pose a greater

danger while allowing offenders who pose a lesser threat an opportunity to be removed from

the registry. Ray contends that he was convicted in multiple case numbers merely “due to

geography,” and the fact that he had only one victim demonstrates that he poses a lesser

threat. He argues that it is unfair that offenders with multiple victims and multiple offenses

and who pose a higher threat than him can still seek termination of their obligation to

register if they were convicted under only one case number.

       We agree with the State, however, that a rational basis exists for treating sex offenders

convicted under more than one case number differently than those convicted under a single

case number. The legislative intent behind the sex-offender registry is to protect the public


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from sex offenders, whom the legislature has found to pose a high risk of reoffending after

having been released from custody. Ark. Code Ann. § 12-12-902. Individuals convicted of

a subsequent sex offense under a second case number have committed more than one sex

crime, and the General Assembly could have concluded that these individuals are more likely

to reoffend. The underinclusiveness of a particular provision does not make the provision

unconstitutional. Landers v. Stone, 2016 Ark. 272, 496 S.W.3d 370. Thus, Ray’s argument

concerning sex offenders convicted of offenses against multiple victims under one case

number does not render the legislature’s chosen classification unconstitutional. We hold that

the lifetime-registration requirement for sex offenders convicted in a subsequent case meets

the very deferential rational-basis standard, see Brown v. State, 2015 Ark. 16, 454 S.W.3d 226,

and that Ray has failed to demonstrate that section 12-12-919 violates his right to equal

protection.

       Ray next argues that because his convictions occurred before the amendment of

section 12-12-919 by Act 1743 of 2001, the requirement of lifetime registration violates the

ex post facto prohibitions of the United States and Arkansas Constitutions. A law is

prohibited as ex post facto when it punishes as a crime an act previously committed, which

was innocent when done; makes more burdensome the punishment for a crime after its

commission; or deprives one charged with crime of any defense available according to law

at the time when the act was committed. Kellar v. Fayetteville Police Dep’t, 339 Ark. 274, 5

S.W.3d 402 (1999) (citing Beazell v. Ohio, 269 U.S. 167 (1925)). If the law is regulatory or


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civil in nature, it cannot be an ex post facto law. Id.

       In Kellar, the appellant challenged the constitutionality of the original version of the

Sex Offender Registration Act, Act 789 of 1997, codified as Arkansas Code Annotated

sections 12-12-901 to -920. To determine whether the Act violated ex post facto clauses,

the supreme court first determined that the intent of the legislature was nonpunitive and then

examined the effects of the Act to see whether they transformed a civil remedy into a

criminal penalty. To make its determination, the supreme court looked to the factors set

forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and concluded that

       [g]iven the overall balance of the Kennedy factors, we are left with the conclusion that,
       while there may be some punitive characteristics inherent in the registration and
       notification statute, the Act is essentially regulatory and therefore non-punitive in
       nature. Because it is not a form of punishment, it therefore cannot be considered a
       violation of the ex post facto clauses of the United States and Arkansas Constitutions.

       In Parkman v. Sex Offender Screening & Risk Assessment Comm., 2009 Ark. 205, 307

S.W.3d 6, the appellant argued in part that certain amendments to the Sex Offender

Registration Act after Kellar had been decided were criminal in nature. The supreme court

compared the current version of the statutes with those at issue in Kellar and held that the

amendments did not transform what was already found to be civil in nature to be criminal

or punitive.

       Ray acknowledges Kellar but argues that the effect of the Act is punitive, noting

without citation several restrictions that apply to sex offenders. He notes that before the

amendment regarding lifetime registration, he had an opportunity to be removed from the


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registry, although removal was never guaranteed. Ray does not explain, however, how this

amendment, or any other changes in the law since Kellar or Parkman, should change the

Kellar analysis. He has failed to distinguish those cases or explain why what was previously

found to be civil in nature should now be deemed criminal. Thus, we find no merit in Ray’s

ex post facto claims.

       Affirmed.

       VIRDEN and BROWN, JJ., agree.

       The Burns Law Firm, PLLC, by: Meagan Burns, for appellant.

       Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.




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