The residence registration requirements of the predatory offender statute cannot be applied to a homeless offender who lived in a location where he did not know at least five days in advance that he would live and at which he could not receive mail.
Heard, considered, and decided by the court en banc.
The opinion of the court was delivered by: Anderson, Paul H., Justice.
Thomas Jerome Iverson pleaded guilty in 1992 to second-degree criminal sexual conduct. This conviction subjected him to the residence registration requirements of the predatory offender registration statute, Minn. Stat. § 243.166 (1998 & Supp. 1999). In 1993, Iverson registered an address in accordance with the statute, but the police later discovered that this address did not exist. In 1999, Iverson pleaded guilty to the gross misdemeanor charge of violating the residence registration requirements of the statute. Nevertheless, he again failed to provide any updated address information as required by the statute. Two years later, authorities discovered they still had invalid registration information, so Iverson was arrested and prosecuted for a second violation of the residence registration requirements, which is a felony. He pleaded guilty to this charge, but stated during the plea hearing that he failed to register because he was homeless. Iverson was then sentenced to a stayed 13-month incarceration with a probationary period of 5 years, during which he would be required to check in daily with local police.
On appeal, the court of appeals affirmed the district court, but modified Iverson's check-in requirement to require that he notify the police only when he changes his "living location." Iverson petitioned this court for review of the issues of the factual basis of his guilty plea and ineffective assistance of counsel. We conclude that Iverson did not waive the argument that his plea was not supported by a sufficient factual basis and remand for further proceedings consistent with this opinion.
Appellant Thomas Jerome Iverson pleaded guilty in 1992 to second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343 (2002). As a result of that conviction, Iverson was obligated to follow the registration procedures outlined in the predatory offender registration statute, Minn. Stat. § 243.166 (1998).*fn1 Iverson was given notice of the registration procedures and requirements. The statute requires that Iverson register with his corrections agent or, if he does not have a corrections agent, that he "register with the law enforcement agency that has jurisdiction in the area of [his] residence." Minn. Stat. §á243.166, subd. 3(a) (1998). One of the required components of the registration is "a statement in writing signed by the [offender], giving information required by the bureau of criminal apprehension." Minn. Stat. § 243.166, subd. 4(a) (Supp. 1999).
The statute also requires that "[a]t least five days before the [offender] starts living at a new address * * * the [offender] shall give written notice of the new living address to the assigned corrections agent or to the law enforcement authority with which the [offender] currently is registered." Minn. Stat. § 243.166, subd. 3(b). To ensure that offenders maintain current information with the registration authorities, "[e]ach year within 30 days of the anniversary date of the [offender's] initial registration," the Minnesota Bureau of Criminal Apprehension (BCA) mails an address verification form to the address the offender provided and the offender is required to return the verification within ten days of receiving it. Minn. Stat. § 243.166, subd. 4(c)(1) and (2). Finally, it is a gross misdemeanor to knowingly violate any of the provisions of the registration statute, and if an offender is convicted of violating the registration statute, any subsequent violation is a felony. Minn. Stat. §á243.166, subd. 5 (1998).
On October 22, 1993, Iverson registered a Minneapolis address as required by the registration statute. In 1997, authorities discovered that the Minneapolis address did not exist, and Iverson was charged with the gross misdemeanor of failing to register in violation of Minn. Stat. § 243.166, subd. 5. He pleaded guilty in August 1999, but when released from jail in September 1999, Iverson was homeless and, having no residential address to report, he again failed to register any new address information.
On February 7, 1997, February 18, 1997, May 26, 1998, and May 22, 2000, the BCA sent address verification letters to the address Iverson provided in 1993, and all the letters were returned by the post office. In March 2001, the police attempted to visit the Minneapolis address Iverson provided in 1993 and again discovered it did not exist. A prosecution of Iverson for felony failure to register was initiated in May 2001. He pleaded not guilty and a trial was set for July 23, 2001. On July 19, 2001, Iverson filed a motion to dismiss the charge, claiming that application of the residence registration requirements to him as a homeless person results in violations of due process and equal protection. At the July 23, 2001 hearing, however, the state announced the parties had reached a plea agreement according to which Iverson would plead guilty in exchange for a stayed sentence.
During the plea hearing, Iverson admitted that he had been obligated to register in 1999 and that he had failed to do so, but stated that he failed to do so because "I didn't have any place to stay, I was homeless." The district court ordered a presentence investigation "to determine * * * how to assist Mr. Iverson, who is homeless, in a way that he can register where he is and stay within compliance of the registration requirements." During the plea hearing, Iverson also acknowledged the rights he was waiving and his satisfaction with his attorney's performance.
On August 7, 2001, Iverson was sentenced to a 13-month stayed sentence with a probationary period of 5 years, during which he would be required to comply with the residence registration requirements by making daily reports of his location to the police. During the sentencing hearing, the district court discussed the presentence investigation that had been done and noted the following:
The answer to that question [of how a homeless defendant can comply with the registration statute] as provided by the Minnesota Bureau of Criminal Apprehension is that the defendant while homeless is required to check in to the police station on a daily basis. The bureau assures me that there are individuals who are complying in that manner. That task does not seem difficult for ...