Court Orders Sex Offender Name Removed

A petitioner convicted in 1996 on a federal charge of possession of child pornography, who submitted the necessary paperwork in 1998 for registration in Virginia as a sex offender, but who was not listed because state police agreed he was not covered by the registration statute at the time, is deemed to have registered in 1998, not in 2007, when he became eligible for registration due to a statutory change, and the Fairfax Circuit Court says petitioner is eligible for removal of his name after expiration of the 15-year period under Va. Code § 9.1-910.

The issue before the court is whether petitioner’s submission of all necessary documents in 1998 is sufficient to constitute initial registration, as required by Va. Code § 9.1-910 for removal of petitioner’s name from the Sex Offender Registry, even though, after his submission of necessary documents in 1998, the Department of State Police told him he was not required to register.

Code § 9.1-910 specifies that a person may not file a petition to remove his information from the Registry until 15 years after the date of initial registration have passed. The commonwealth argues that since petitioner’s name was not included in the Registry until 2007, he was not registered with the Registry until 2007. A plain reading of the Code § 9.1-903 indicates that being listed in the Registry is not the same as initial registration. Even though petitioner’s information was not listed on the Registry until 2007, this omission alone would not necessarily preclude the court from considering petitioner to be registered as required by the statute.

Since inclusion in the Registry does not seem to be the determinative factor as to whether petitioner initially registered, the court must look to the text of the relevant statutes to determine what the General Assembly contemplated by the phrase “initial registration.” The court must bear in mind that this statute has undergone substantive changes since its inception in 1994. In determining whether petitioner registered in 1998, the court must consider the registration requirements as they existed in 1998 and not as they exist today.

It is clear to the court that the General Assembly used the phrase “initial registration” to intend that this statute apply to the registrant’s first date of registration in the Registry. A sex offender is required to re-register with the Registry on an annual basis; obviously, the General Assembly included the word “initial’ to have the statute apply to the first of the offender’s registrations with the Registry.

Today, the statute mandates that as part of petitioner’s complete registration, he must submit certain identified items. Also, the Virginia Supreme Court has stated that in order to complete registration, pursuant to Va. Code § 9.1-903, in-person registration is specifically required for the initial registration with the local law enforcement agency.

In 1998, Va. Code § 19.2-298.1 governed registration procedures for the Virginia Registry. The statute, as it existed at that time, did not require petitioner to submit himself to be photographed, or that he submit a DNA sample. The statute also did not require that he appear in person to register.

I find that petitioner’s initial registration was complete on Dec. 2, 1998, when he submitted all necessary documents for registration, even though the Department of State Police later agreed with petitioner that he was not required to register. Because the court finds the Dec. 2, 1998 registration was the initial registration, the court finds petitioner meets the statutorily prescribed 15-year registration requirement to be removed from the Registry under Va. Code § 9.1-910.

The court grants the petition for removal of name from Sex Offender and Crimes Against Minors Registry pursuant to Va. Code § 9.1-910.

Miller v. Commonwealth (Smith) No. CL 2013-18591, April 14, 2014; Fairfax Cir.Ct.; David A. Oblon for petitioner; Laura A. Riddlebarger for respondent. VLW 014-8-047, 8 pp.