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Karkos v. Maine State Bureau of Identification

Superior Court of Maine, Kennebec

May 30, 2017

REBEKAH KARKOS, Petitioner
v.
MAINE STATE BUREAU OF IDENTIFICATION, SEX OFFENDER REGISTRY Respondent

          DECISION AND ORDER

          WILLIAM R. STOKES JUSTICE.

         The matter before the court is the appeal by Rebekah Karkos, a lifetime registrant under SORNA of 1999, from the denial of her application to be relieved of the duty to register. This appeal has been brought in accordance with 5 M.R.S. §§11001-11008 (Maine Administrative Procedure Act), 34-A M.R.S. §11202-A(5) and M.R.Civ.P. 80C.

         FACTUAL AND PROCEDURAL BACKGROUND

         On September 8, 1994 the Petitioner was convicted in the Bristol County Superior Court in the Commonwealth of Massachusetts of (1) indecent assault and battery on a child under 14, and (2) rape of a child. As a result, she was required to register for life under the laws of Massachusetts. In May 2001 the Maine State Bureau of Identification (Bureau) was notified that the Petitioner would be moving to Maine but the notification did not say when. Upon her move to Maine, the Petitioner was required to register as a sex offender in this State. 34-A M.R.S. §§11223, 11225-A(4).

         The Petitioner filed her initial registration under SORNA of 1999 as a lifetime registrant on April 28, 2005. As a lifetime registrant the Petitioner must provide written verification to the Bureau every 3 months after the initial registration and once every 5 years in person. 34-A M.R.S. §11222(4-B). In addition, at the time of the initial registration and "on each anniversary of their initial registration, " a registrant must pay an annual fee of $25. 34-A M.R.S. §11226.

         On April 28, 2016 the Petitioner filed an "Application For Relief From Duty To Register" pursuant to 34-A M.R.S. §11202-A(1)(A) which, as relevant to her, provides as follows:

.... a person is not required to register under this chapter if that person submits to the bureau, in a form to be determined by the bureau, documentation to establish the following: .... the person was sentenced in another jurisdiction prior to September 18, 1999, was finally discharged from the correctional system at least 10 years prior to submitting documentation to the bureau under this section and has been in compliance with the registration duties as a resident required under subchapter 2 since September 12, 2009.

         By a letter dated June 10, 2016 the Supervisor of the Sex Offender Registry within the Bureau preliminarily denied the Petitioner's application on the ground that she had not been "compliant" with nine separate verification cycles "due to items being received at the Registry after the due dates." The Petitioner was informed that she could submit additional documentation within 30 days to show that the preliminary denial was incorrect, after which the denial would become final. The letter also stated that the Bureau Director (or the Director's designee) "has no discretion to consider factors not addressed in the statute." The denial became final on July 13, 2016. On July 15, 2016 the Petitioner wrote to the Registry to request reconsideration of the denial. Because the Petitioner's reconsideration request provided no additional or new information or documentation, it was denied.

         The Petitioner's Rule 80C appeal to this court was filed on August 15, 2016. The agency record was filed on September 8, 2016. The Petitioner's Motion to Take Additional Evidence pursuant to Rule 80C(e) was filed on September 20, 2016 and denied on November 2, 2016. On November 14, 2016 (after the Petitioner had filed her brief) the Respondent filed a Motion to Modify the Record, informing the court that "[d]ue to a computer programming error, " the Registry had "mistakenly believed that the Plaintiff was late nine times when I fact she was late only four times." The Respondent's request to remand the case to allow it to modify the record was granted without objection on November 16, 2016. The following day, November 17, 2016, the Respondent filed its brief.

         On March 7, 2016 the Respondent filed an "Amendment to Record" in which it represented that only three instances of the Petitioner's failure to comply with her verification requirement under SORNA 1999 were considered by the agency and should be reviewed on appeal by this court. Specifically, in denying the Petitioner's request to be relieved of the duty to register and verify as a sex offender, the Respondent considered the following:

1) Plaintiffs annual fee, 34-A M.RS. §11226, is due on each annual anniversary of her Initial Registration. Her initial registration was on 4/28/2005. She therefore owed a $25 fee on 4/28/2011. Plaintiffs check was issued on 8/4/2011 and was received by SBI on 8/8/2011, over 100 days late.
2) Plaintiffs 3 month verification form and photo were due on 1/28/2014 and both were received on 1/31/2014, 3 days late.
3) Plaintiffs 3 month verification form and photo were due on 4/28/2014 and both were received on 4/29/2014, 1 day late.

         The amended record includes a preliminary denial dated January 12, 2017 and a final denial dated February 14, 2017 based on the three (3) failures to timely comply with the Petitioner's ...


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