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A man breaks into, and then hides in, a woman’s parked car. Upon her return he holds a knife to her side and forces her to drive to a remote woodland location. He then tells the woman to get out of the car and accompany him into the woods. She refuses. He runs off. Should the man, who is later convicted of kidnapping and burglary, but not sexual assault, be made to register as a sex offender with the state? The Connecticut Appellate Court shed more light on that question in a May 7 ruling by reversing the trial court’s decision ordering the man to register as a sex offender. The Appellate Court ordered a new hearing to determine if the man, Jeffrey Pierce, kidnapped his victim for the purpose of sexual assault. The ruling marks the first time the Appellate Court has considered the discretionary power of judges in sentencing defendants who have committed a felony for a sexual purpose under the state’s version of Megan’s Law. The problem, according to Pierce’s defense attorney, Francis O’Reilly, of Fairfield, Conn.’s O’Reilly & Shaw, is that the statute does not stipulate what evidence the court must consider in deciding if someone should register as a sex offender. The Appellate Court also considered for the first time if the sex offender statute is a sentence enhancement, and if not, should the court hold a hearing before finding that the defendant committed a felony for a sexual purpose. The court also questioned what standard of proof should be applied at such a hearing, and if, after the hearing, the court still had discretionary power in requiring a person to register. The Appellate Court ruled that the state law is not a sentence enhancement statute and that Pierce is entitled to a hearing. In addition, it found that the trial court could, at the time of the hearing, find fact “by a fair preponderance of the evidence” and could retain discretion in making Pierce register as a sexual offender if it finds him guilty. However, since neither O’Reilly nor Assistant State’s Attorney Christopher Godialis raised the issue of whether the state law was a sentence enhancement statute at either the trial or appellate courts, Godialis said he was likely to seek certification to the Supreme Court challenging the Appellate Court’s decision. During oral arguments before the Appellate Court, O’Reilly tried to persuade the justices that the trial court abused its discretion by requiring Pierce to register as a sex offender because it had not proved that his client committed the crimes he was convicted of “for a sexual purpose.” Godialis said the Appellate Court then raised supplementary issues such as whether the state law was a sentence enhancement statute and if it was, what procedures should be followed. The prosecutor later argued to the Appellate Court that because the supplementary question was not an issue raised by either side, the state did not concede to its review. In the Appellate Court’s decision, Justice Antoinette Dupont responded, “we would not have asked for supplemental briefs had we believed the issues were not reviewable, nor do we need the consent of the parties to review issues we deem relevant.” NOT ENOUGH EVIDENCE? In the case, State v. Jeffrey Pierce, the state originally argued before the Appellate Court that the trial court did not abuse its discretion in requiring Pierce to register as a sex offender because information in Pierce’s presentence investigation report could be used by the judge. Godialis said Pierce, who is 22, has a previous record for sexual deviancy, including breaking into a home to steal a woman’s panties, and making harassing telephone calls of a sexual nature. Godialis characterized the Appellate Court’s ruling last week as only a “small win” for O’Reilly and Pierce, noting that the court also denied three of the defense’s key arguments claiming error on the part of the trial court. O’Reilly said he, too, would seek certification from the Supreme Court because he disagreed with the Appellate Court’s finding that the U.S. Court’s ruling in Apprendi v. New Jersey was not applicable to his client’s case. The attorney argued to the court that the sex offender statute was punitive and increased the penalty for a crime, which is impermissible under Apprendi. Citing State of Connecticut v. Kelly, the Appellate Court noted that the Megan’s Law registry was established as a regulatory measure and not a punitive one, and that Apprendi did not apply because the state statute being interpreted did not have an immediate impact on Pierce. Dupont stated that the registration of Pierce as a sex offender takes place after conviction, but “does not affect the term of sentence to be imposed and is not required to be effective until ‘release into the community.’” However, the court ruled that on the basis of cases such as the 2nd Circuit’s recent decision in Doe v. Department of Safety — where the court found that a hearing must be held before there can be public disclosure of names on the Megan’s Law registry — Pierce was entitled to a hearing because he satisfied the “stigma plus” test. Dupont added that although the court was dealing with the registration aspect of the state law, “both disclosure and notification should be treated in the same manner as far as due process is concerned.” O’Reilly said he was glad that the court ordered a hearing to determine whether his client committed the kidnapping for a sexual purpose, but thought the burden of proof should be on the state, rather than his client. “They have shifted the burden onto [Pierce],” O’Reilly said. “If anything there needs to be an articulation of who bears the burden or proving this crime was committed for a sexual purpose.”

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