Name remains on sex offender list

Where petitioner seeks a writ of mandamus to compel respondent Settles, the state police superintendent, to remove petitioner’s name from Virginia’s Sex Offenders and Crimes Against Minors Registry, relief is denied because the offenses he committed require his registration.

Ruling

“Code § 9.1-902, which enumerates the offenses that require registration on the Virginia Sex Offender and Crimes Against Minors Registry, provides, in relevant part, that ‘any violation of … [Code] § 18.2-67.4’ is an offense that requires registration ‘[w]here the victim is a minor.’ Va. Code § 9.1-902(A) (emphasis added). That portion of the statute, which was in effect at all times relevant to this case and thus applicable to Petitioner’s instant claim, clearly establishes that Petitioner’s 2003 Virginia conviction under Code § 18.2-67.4 requires his registration on the Virginia Sex Offender and Crimes Against Minors Registry if the victim of that offense was a minor.

“The Court finds that the JDR Court’s record of Petitioner’s Virginia conviction under Code § 18.2-67.4 unequivocally demonstrates that the victim sexually assaulted by Petitioner was a minor. Indeed, as relevant here, Petitioner was initially charged in case number JA012488-01 with aggravated sexual battery, a felony, in violation of Code § 18.2-67.3.

However, pursuant to the Adult Plea Agreement and Order entered by the JDR Court on October 30, 2003, the Warrant of Arrest was amended by the JDR Court on October 30, 2003, to reflect the reduced charge of sexual battery, a misdemeanor, in violation of Code § 18.2-67.4.

“Specifically, the term ‘aggravated’ was struck from the Warrant of Arrest. Additionally, the age of the victim was changed from ‘6’ to ‘8’ years on the Warrant of Arrest.

“The unaltered terms of the Warrant of Arrest further expressly state that the victim was a child ‘who was less than thirteen years of age.’ Thus, as specified in the amended Warrant of Arrest, Petitioner was charged with having committed the offense of sexual battery on a minor child. And, as further reflected in the conviction order entered by the JDR Court on October 30, 2003, in conjunction with the amended Warrant of Arrest and Adult Plea Agreement and Order, Petitioner entered a plea of guilty and was convicted of that amended charge on October 30, 2003.

“It is clear, therefore, that Petitioner stands convicted of having violated Code § 18.2-67.4 where the victim was a minor. Accordingly, Petitioner was convicted of an offense that, as a matter of law, requires his registration on the Virginia Sex Offender and Crimes Against Minors Registry under Code§ 9.1-902(A).

On the record

“Nonetheless, Petitioner argues that he is not required to register because ‘the Virginia plea and conviction order do not include a finding that the victim was … a minor.’ The conviction order and plea agreement’s silence as to the age of the victim, Petitioner asserts, indicates that, although Petitioner was initially ‘charged with an offense identifying a specific age of the … victim … the parties reached an accord wherein the charge was amended to not include the age of the alleged victim to change the nature of the charge.’ Thus, Petitioner further asserts, ‘the Commonwealth agreed specifically not to trigger registration requirements by removing any age of the complainant.’

Simply put, however, the uncontradicted and unambiguous record of Petitioner’s Virginia conviction does not support, and indeed belies, Petitioner’s characterization of that record.

“For one thing, as noted above, in amending the Warrant of Arrest to reflect the terms of the parties’ plea agreement, the JDR Court amended the original aggravated sexual battery charge to a charge of sexual battery by merely crossing out the word ‘aggravated.’ The court also corrected the age of the victim to ‘8’ but made no other changes to the warrant.

“Thus, the two notations in the warrant that specifically identified the victim as a minor were not removed from the charging document. Clearly, those notations could have been deleted by the JDR Court, and no doubt would have been deleted by the court, had the parties actually agreed to remove the age of the victim from the Warrant of Arrest for the purpose of not triggering registration requirements.

“It cannot reasonably be said, therefore, that the amended warrant reflects an agreement by the parties to amend the charge to exclude any information that the victim was a minor.

“The Court concludes, therefore, that, because Petitioner’s Virginia conviction under Code § 18.2-67.4 for sexual battery of a minor requires his registration on the Sex Offender and Crimes Against Minors Registry under Code § 9.1-902(A), he is not entitled, as a matter of law, to have his name removed from that registry.

“Accordingly, having no clear right to the relief requested in his Petition for Writ of Mandamus, Petitioner is not entitled to summary judgment and his petition for a writ will be denied and dismissed with prejudice.”

Myers v. Settle. Case No. C 19-3425, Nov. 16, 2020, Loudoun County Cir. Ct. (Irby). Jessica E. McCollum for Myers, Settle appearing pro se. VLW 020-8-132, 11 pp.