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State v. Iowa Dist. Court ex rel. Story County

Supreme Court of Iowa

February 14, 2014

STATE of Iowa, Plaintiff,
v.
IOWA DISTRICT COURT for STORY COUNTY, Defendant.

Page 77

Thomas J. Miller, Attorney General, and John R. Lundquist, Assistant Attorney General, for plaintiff.

Andrew J. Boettger of Hastings, Gartin & Boettger, LLP, Ames, for defendant.

HECHT, Justice.

An individual convicted of a sex offense sought modification of his sex offender registration obligation. After determining the individual met the requirements of the statutory registration modification provision, the district court granted modification and ordered the individual removed from the offender registry. The State filed a petition for writ of certiorari, contending the district court erred in determining the individual was eligible for modification under the provision. We granted the petition and transferred the case to the court of appeals. On further review of the decision of the court of appeals, we annul the writ.

I. Background Facts and Proceedings.

David Buchwald was eighteen years old when he pleaded guilty to a single count of lascivious acts with a child in February 2002. Buchwald was sentenced and incarcerated as an adult. Upon his release from prison in April 2004, Buchwald was required to register as a sex offender for ten years under the then-existing version of Iowa's sex offender registry statute. He registered and remained on the registry without incident until he petitioned for modification of his requirement in February 2011.

Iowa's legislature amended the registry statute significantly in 2009 and added a provision under which persons subject to registration requirements may petition the district court for modification. See Iowa Code § 692A.128 (Supp.2009). The provision grants the district court authority to modify registration obligations if certain conditions are met. Id. The relevant subsections provide:

1. A sex offender who is on probation, parole, work release, special sentence, or any other type of conditional release may file an application in district court seeking to modify the registration requirements under this chapter.
2. An application shall not be granted unless all of the following apply:
a. The date of the commencement of the requirement to register occurred at least two years prior to the filing of the application for a tier I offender and five years prior to the filing of the application for a tier II or III offender.
b. The sex offender has successfully completed all sex offender treatment programs that have been required.
c. A risk assessment has been completed and the sex offender was classified as a low risk to reoffend. The risk assessment used to assess an offender

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as a low risk to reoffend shall be a validated risk assessment approved by the department of corrections.
d. The sex offender is not incarcerated when the application is filed.
e. The director of the judicial district department of correctional services supervising the sex offender, or the director's designee, stipulates to the modification, and a certified copy of the stipulation is attached to the application.
5. The court may, but is not required to, conduct a hearing on the application to hear any evidence deemed appropriate by the court. The court may modify the registration requirements under this chapter.
6. A sex offender may be granted a modification if the offender is required to be on the sex offender registry as a result of an adjudication for a sex offense, the offender is not under the supervision of the juvenile court or a judicial district judicial department of correctional services, and the department of corrections agrees to perform a risk assessment on the sex offender. However, all other provisions of this section not in conflict with this subsection shall apply to the application prior to an application being granted except that the sex offender is not required to obtain a stipulation from the director of a judicial district department of correctional services, or the director's designee.

Id.

Before the 2009 amendments, the registry statute had no similar modification provision— instead, persons on the registry could seek only determinations of " whether the offense for which the person ha[d] been convicted require[d] the person to register," and " whether the period of time during which the person [was] obligated to register ... [had] expired." See id. § 692A.8 (2009).

In his 2011 petition, Buchwald invoked the new modification provision and alleged he met or could meet each of the provision's prerequisites for adjustment of his obligation. More specifically, he noted he was not incarcerated or under any other probationary oversight at the time, he had been classified as a tier II offender and had been on the registry for more than five years, and he had not been ordered to undergo any sex offender treatment program. Because the provision also requires a risk assessment classifying an offender as low risk to reoffend as a prerequisite for modification, Buchwald requested an assessment, which the district court ordered.

Initially, Buchwald relied on subsection 6 of section 692A.128 as the basis for his eligibility for modification. See id. § 692A.128(6) (2011) (" A sex offender may be granted a modification if the offender is required to be on the sex offender registry as a result of an adjudication for a sex offense...." ) When the district court ordered the risk assessment based on Buchwald's petition, the State urged reconsideration of the order on behalf of the department of correctional services (the department), contending the legislature's use of the word " adjudication" in subsection 6 indicates the subsection applies only to individuals subject to the registry as a result of juvenile adjudications. Under that reading, the State maintained, Buchwald's conviction as an adult rendered him ineligible for modification under subsection 6. The district court held a hearing on the State's motion, at which time Buchwald moved to amend his petition to " include consideration of Iowa Code section 692A.128 in its entirety" as the basis

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of his argument for eligibility.[1] After granting Buchwald's motion to amend, the district court denied the State's motion for reconsideration and ordered the risk assessment, agreeing subsection 6 " clearly applie[d] only to juveniles" but concluding subsections 2 and 5 granted the court discretion to modify registration requirements provided various statutory criteria were met. See id. § 692A.128(5) (" The court may modify the registration requirements under this chapter." ); see also id. § 692A.128(2) (providing " [a]n application shall not be granted unless all of the following apply" and enumerating several conditions).

The State petitioned our court for a writ of certiorari and moved to stay the district court order, but we denied the petition and motion. The department then performed the risk assessment and determined Buchwald presented a low risk to reoffend. With the risk assessment completed, the district court held a new hearing on Buchwald's eligibility for modification, at which the parties reiterated their arguments. The district court, having previously addressed the arguments, concluded the assessment rendered Buchwald eligible for modification under subsection 1 and therefore reduced the duration of Buchwald's registration ...


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