                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2007-CT-00740-SCT

JOHN ANTHONY MAGYAR

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         04/05/2007
TRIAL JUDGE:                              HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:                WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   JAMES LEE KELLY
ATTORNEYS FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                        JOYCE I. CHILES
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                              AFFIRMED – 08/13/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    John Anthony Magyar claims that, prior to pleading guilty to the crime of sexual

battery, he was not told he would be required to register as a sex offender. The trial court

summarily dismissed his motion for post-conviction relief without a hearing. The Court of

Appeals affirmed that dismissal, we granted certiorari, and we now affirm.

                   BACKGROUND FACTS AND PROCEEDINGS

¶2.    After John Anthony Magyar was indicted by a Washington County grand jury for one

count of sexual battery, he filed a “petition to enter plea of guilty.” His plea petition
disclosed the maximum and minimum penalties for the crime of sexual battery, but did not

disclose that he would be required to register as a sex offender, and the trial judge did not

mention it during the plea colloquy. The trial judge accepted Magyar’s guilty plea and

ordered a pre-sentence investigation, following which he sentenced Magyar to twenty years

in prison, with ten years suspended, followed by five years supervised probation.

Additionally, the judge ordered Magyar to register as a sex offender.

¶3.    Magyar filed a motion for post-conviction relief in the trial court, asserting that his

plea and sentence should be set aside for various reasons, including that his guilty plea was

not freely, voluntarily and intelligently made, and that neither the trial judge nor his attorney

informed him that he would be required to register as a sex offender.

¶4.    After the trial court summarily denied his motion without a hearing, Magyar filed a

“motion to reconsider motion for post-conviction relief,” which the trial court treated as a

Rule 60 motion and denied. Magyar appealed. The Court of Appeals affirmed. Magyar v.

State, No. 2007-CA-00740, 2008 WL 4308220 (Miss Ct. App. Sept. 23, 2008). Although

we find no error in the Court of Appeals’ opinion or disposition of this case, we granted

certiorari to address the statutory mandate that trial judges inform criminal defendants – prior

to accepting their guilty pleas – of the requirement to register as a sex offender.

                                         ANALYSIS

¶5.    In his petition for post-conviction relief, Magyar asserted, inter alia, that he should

have been allowed to withdraw his guilty plea because the trial court did not inform him,

prior to accepting his guilty plea, that he would be required to register as a sex offender. The

trial court denied Maygar’s petition without a hearing. Because the question presented is

                                               2
legal, rather than factual, we analyze it de novo. Brown v. State, 731 So. 2d 595, 598 (Miss.

1999).

         Miss. Code Ann. § 45-33-39

¶6.      Section 45-33-39(1) requires a trial judge – prior to accepting a guilty plea from a

defendant charged with a sex crime 1 – to provide the defendant written notification of the

registration requirement and obtain “a written acknowledgment of receipt” of the written

notification. Specifically, the statute provides, in part:

         The court shall provide written notification to any defendant charged with a
         sex offense as defined by this chapter of the registration requirements of
         Sections 45-33-25 and 45-33-31. Such notice shall be included on any guilty
         plea forms and judgment and sentence forms provided to the defendant. The
         court shall obtain a written acknowledgment of receipt on each occasion.

Miss. Code Ann. § 45-33-39(1) (Rev. 2004).

¶7.      It should come as no surprise that few states have statutes similar to Section 45-33-

39(1). A basic tenet of American government is judicial independence, and every state has

a judicial branch of government separate from its legislative branch. We hold firm to the

principle that Mississippi’s legislative branch of government may not, through procedural

legislation, control the function of the judiciary. See Miss. Const. art. 1, § 1 (“The powers of

the government of the State of Mississippi shall be divided into three distinct departments,

and each of them confided to a separate magistracy, to-wit: those which are legislative to one,

those which are judicial to another, and those which are executive to another.”); Miss. Const.

art. 1, § 2 (“No person or collection of persons, being one or belonging to one of these

departments, shall exercise any power properly belonging to either of the others.”); Miss.

         1
             See Miss. Code Ann. §§ 45-33-25 & -31 (Rev. 2004).

                                                 3
Const. art. 6, § 144 (“The judicial power of the State shall be vested in a Supreme Court and

such other courts as are provided for in this Constitution.”). Stated another way, this Court

cannot – consistent with the Mississippi Constitution – relinquish to the Legislature the

duties and powers constitutionally imposed upon the Supreme Court.

¶8.    Indeed, our subservience to legislation that mandates what our trial judges must say

to a defendant in a courtroom during a plea hearing would be tantamount to both an

abdication of our judicial duty, as well as tacit approval of legislative usurpation of the

judicial prerogative. Thus, we hold today that Mississippi Code Annotated Section 45-33-

39(1) confers no right on a criminal defendant charged with a sex crime and imposes no duty

on our trial judges.2 Although we find that a trial judge is not required, prior to accepting a

guilty plea, to inform a defendant of the sex offender registration laws, we must still decide

whether the registration requirement is a “material” consequence of a guilty plea, or a

“collateral” consequence only.

       Material and collateral consequences

¶9.    The decision to plead guilty has consequences. Some are material, and some are

collateral. Material consequences are those of which a defendant must be aware in order to

knowingly and intelligently waive the numerous substantive and procedural rights guaranteed

by the constitution to a defendant in a criminal case. A defendant must be fully informed of




       2
         Our decision today is no indication that we disapprove of the Legislature’s idea. To the
contrary, the matter has been referred to our rules committee which has taken the provisions of the
statute under advisement and will submit it to the normal process associated with the enactment of
rules affecting the judiciary.

                                                4
the material – or direct – consequences prior to entering a plea of guilty; conversely, there

is no requirement that a defendant be informed of the collateral consequences.3

¶10.   For instance, upon conviction of certain crimes,4 a person loses the privilege to vote.

And supervised probation – which accompanies most felony sentences – will result in

substantial personal restrictions and reporting requirements. Furthermore, and more on point

here, conviction of a felony carries with it a certain societal stigma. Some organizations,

employers, and clubs restrict membership and employment to persons who have never been

convicted of a felony. Our system of justice does not expect – and the Constitution does not

require – our trial judges to inform defendants of these or other collateral consequences of

pleading guilty to a felony.

¶11.   We decide today, as an issue of first impression in Mississippi, whether the

requirement to register as a sex offender is a material or collateral consequence of a guilty

plea. After due consideration, we find that the requirement to register as a sex offender is

a collateral consequence of a guilty plea, and the trial court will not be put in error for failing



        3
          Although Mississippi has no case directly on point, we find persuasive the reasoning of our
sister state, Alabama. See Robinson v. State, 730 So. 2d 252, 254 (Ala. Crim. App. 1998) (“‘An
accused is entitled to information concerning the direct consequences of his plea. He is not entitled
to information concerning all collateral effects, or future contingencies that might arise.’”) (internal
citations omitted). See also Nollette v. State, 46 P.3d 87, 89 (Nev. 2002) ([T]he totality of the
circumstances must demonstrate that a defendant pleaded guilty with knowledge of the direct
consequences of his plea . . . Because collateral consequences of a criminal conviction are often
limitless, unforeseeable or personal to the defendant, requiring an advisement with respect to every
conceivable collateral consequence ‘would impose upon the trial court an impossible, unwarranted
and unnecessary burden.’”) (internal citations omitted).

       4
        Crimes which disqualify a person as an elector are murder, rape, bribery, theft, arson,
obtaining money or goods under false pretense, perjury, forgery, embezzlement and bigamy. Miss.
Const. art. 12, § 241. See also Miss. Code Ann. § 23-15-19 (Rev. 2007).

                                                   5
to advise Maygar of the registration requirements before accepting his guilty plea. Although

we do not recognize the law of other states as controlling precedent, our decision today is

nevertheless aided by the viewpoint of virtually every other jurisdiction to address the

question.5

                                         CONCLUSION

¶12.   We hold today that judicial rules – such as the rules of evidence, civil procedure,

criminal procedure, and professional conduct – neither come from the Legislature nor require

legislative approval. Accordingly, we hold that Section 45-33-39(1) confers no procedural

right on a defendant in a criminal case and imposes no judicial duty on a trial judge. We also


       5
         See, e.g., Robinson v. State, 730 So. 2d 252, 254 (Ala. Crim. App. 1998) (sex offender
registration is a collateral consequence of a guilty plea); State v. Young, 542 P.2d 20, 22 (Ariz.
1975) (same); People v. Montaine, 7 P.3d 1065, 1067 (Colo. Ct. App. 1999) (same); State v. Scott,
2003 Del. Super. 2003 WL 21204469 at *1 (Del. Super. Ct. May 19, 2003) (same); State v. Partlow,
840 So. 2d 1040, 1043-44 (Fla. 2003) (same); Foo v. State, 102 P.3d 346, 358 (Haw. 2004) (same);
Ray v. State, 982 P.2d 931, 935 (Idaho 1999) (same); People v. Taylor, 561 N.E.2d 393, 393 (Ill.
App. Ct. 1990) (registration requirement is not penal in nature, and thus not part of the sentencing
procedure); State v. Jefferson, 759 N.W.2d 3 (Table), 2008 WL 4531454 at *3 (Iowa App. Oct. 1,
2008) (sex offender registration is a collateral consequence of a guilty plea); State v. Legg, 13 P.3d
355, 358 (Kan. Ct. App. 2000) (same); Carpenter v. Commonwealth, 231 S.W.3d 134, 137 (Ky. Ct.
App. 2007) (same); Commonwealth v. Shindell, 827 N.E.2d 236, 238 (Mass. App. Ct. 2005) (same);
In re Lyons, 2000 WL 33389824 at *1 (Mich. App. Dec. 19, 2000) (same); Ramsey v. State, 182
S.W.3d 655, 659 (Mo. Ct. App. 2005) (same); State v. Torres, 574 N.W.2d 153, 155 (Neb. 1998)
(registration requirements are separate and collateral to any sexual offense which the act affects);
Nollette v. State, 46 P.3d 87, 90 (Nev. 2002) (sex offender registration is a collateral consequence
of a guilty plea); Doe v. Poritz, 662 A.2d 367, 406 n.18 (N.J. 1995) (same); State v. Moore, 86 P.3d
635, 643 (N.M. Ct. App. 2004) (same) People v. Clark, 704 N.Y.S.2d 149, 151 (N.Y. App. Div.
2000) (same); Davenport v. State, 620 N.W.2d 164, 166 (N.D. 2000) (same); State v. Omiecinski,
2009 WL 626114 at *4 (Ohio App. March 12, 2009)(same); Rodriguez-Moreno v. State, 145 P.3d
256, 259 (Or. Ct. App. 2006) (same); Commonwealth v. Leidig, 956 A.2d 399, 406 (Pa. 2008)
(same); Williams v. State, 662 S.E.2d 615, 618 (S.C. Ct. App. 2008) (same); State v. Timperley, 599
N.W.2d 866, 869 (S.D. 1999) (same); Ward v. State, 2009 WL 113236 at *9, (Tenn. Crim. App.
January 14, 2009) (same); State v. Ward, 869 P.2d 1062, 1076 (Wash. 1994) (same); State v. Bollig,
605 N.W.2d 199, 206 (Wis. 2000) (the duty to register is a collateral consequence of a guilty plea,
because it does not constitute punishment); Johnson v. State, 922 P.2d 1384, 1387 (Wyo. 1996)
(trial court committed no error by failing to advise a defendant about the registration requirement).

                                                  6
hold that the duty to register as a sex offender is a collateral consequence of a guilty plea.

All other aspects of the decision of the Court of Appeals in this matter are adopted herein.

Accordingly, we affirm the judgments of the Court of Appeals and the Washington County

Circuit Court.

¶13.   AFFIRMED.

    WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR AND PIERCE, JJ.,
CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY. KITCHENS, J.,
CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J.,
CARLSON, P.J., DICKINSON, LAMAR AND PIERCE, JJ. CHANDLER, J., NOT
PARTICIPATING.

       KITCHENS, JUSTICE, CONCURRING:

¶14.   I agree with the majority’s decision to affirm the dismissal of Magyar’s motion for

post-conviction relief and its conclusion that the registration requirement incidental to

conviction as a sex offender is a collateral, rather than direct, consequence of a valid guilty

plea. I write separately, however, to clarify the distinction between these effects.

¶15.   To be sure, the notions of direct and collateral consequences are amorphous concepts

that elude simple definition. Nevertheless, the considerable attention given to the subject by

our sister jurisdictions suggests that this body of law affords no space to a middle ground;

consequences to a plea of guilty are either direct or collateral. Therefore, when confronted

by this issue in the future, the judges of this state must decide upon which side of the dividing

line a given consequence falls.

¶16.   Today, we hold correctly that post-release registration as a sex offender is a collateral

consequence to an admission of guilt, as have several other states. See e.g., Commonwealth

v. Leidig, 598 Pa. 211, 956 A.2d 399 (2008); State v. Ward, 123 Wash. 2d 488, 869 P.2d

                                               7
1062 (1994). See also Bessey v. State, 239 S.W.3d 809 (Tex. Crim. App. 2007). To

conclude that the instant case falls to the collateral side of the fine line in question does not,

of course, settle the larger question of where, exactly, that line lies. In my view, “[t]he

distinction between ‘direct’ and ‘collateral’ consequences of a plea, while sometimes shaded

in the relevant decisions, turns on whether the result represents a definite, immediate and

largely automatic effect on the range of the defendant’s punishment.” George v. Black, 732

F.2d 108, 110 (8th Cir. 1984) (quoting Cuthrell v. Director, 475 F.2d 1364, 1366 (4th Cir.

1973), cert. denied, 414 U.S. 1005, 94 S. Ct. 362, 38 L. Ed. 2d 241 (1973)). For example,

in Cuthrell, the Fourth Circuit Court of Appeals held that a defendant had knowingly pled

guilty, notwithstanding the trial court’s failure to advise him that he might lose his accrued

“good time” credit period. This was so, the panel reasoned, because “while the loss w[ould]

increase the period of his actual confinement, it [was] not ‘a definite, practical consequence

of the plea’ but [was] discretionary with the prison authorities,” and therefore was a collateral

consequence. 475 F.2d at 1366 (quoting Hutchison v. United States, 450 F.2d 930, 931

(10th Cir. 1971)). On the other hand, “[u]nder this standard, direct consequences include a

mandatory special parole term, ineligibility for parole, and the maximum punishment

provided by law.” Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988).

¶17.   The standard enunciated by the Cuthrell Court is followed by at least three other

circuits, for a total of no fewer than seven of the twelve circuits in agreement on this point.

Virsnieks v. Smith, 521 F.3d 707 (7th Cir. 2008); Steele v. Murphy, 365 F.3d 14 (1st Cir.

2004); United States v. U.S. Currency in the Amount of $228,536.00, 895 F.2d 908 (2d Cir.

1990). See also Redwine v. Zuckert, 317 F.2d 336 (D.C. Cir. 1963). As I read today’s

                                                8
majority opinion, we have chosen to adhere to this standard. Whether post-release

registration is a collateral or direct consequence of a guilty plea is, admittedly, a close

question; it certainly is definite and automatic. However, it is not as immediate and direct

a result as, for example, a term of imprisonment or the imposition of a fine. The Mississippi

Court of Appeals implicitly adhered to this reasoning in 2005 when it affirmed the

conviction, pursuant to a plea of guilty, of a defendant whom the trial judge explicitly

advised was waiving his right to direct appeal. Sykes v. State, 895 So. 2d 191, 195 (Miss.

Ct. App. 2005). The resulting loss of the right to appeal certainly was definite, immediate,

and automatic; but because the trial judge advised the defendant on the record of this

consequence, the appellate court rightly determined that the defendant knowingly had pled

guilty. Id. See also Young v. State, 797 So. 2d 239, 245-46 (Miss. Ct. App. 2001).

¶18.   The court’s judgment in Sykes was correct for precisely the same reason that I concur

in today’s decision: where a consequence of a valid guilty plea is definite, immediate, and

largely automatic, that consequence is direct, rather than collateral; and where a defendant

seeking to plead guilty has been advised of the direct consequences of that decision, that plea

obviously is made knowingly. In cases such as the one before us today, when a guilty plea

results in consequences that do not meet that three-pronged description, a defendant is not

entitled to judicial admonition.6

¶19.   Because this Court implicitly follows that path in reaching today’s correct decision,

I concur with the majority opinion.



       6
         Obviously, if a given consequence of a guilty plea leaves doubt as to whether it is collateral
or direct in nature, the trial judge’s most prudent route is to advise the defendant thereof.

                                                  9
     WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR AND PIERCE, JJ.,
JOIN THIS OPINION.




                                10
