Sex Offender Registration a Collateral Consequence in Utah

When facing a serious criminal charge in Utah County like child pornography, unlawful sexual relations with a minor, and other sex crimes, the accused want to understand what are all of the potential consequences of a conviction. Knowing the consequences of a conviction will aid the accused in determining whether to enter into a  plea agreement or go to trial.

The Utah Supreme Court just decided State v. Trotter, which relieves lawyers of the responsibility of notifying a client that a conviction could carry with it a requirement to register as a sex offender.  In Trotter the defendant had sex with a couple of minor girls between the ages of 14 and 16 when he was 20 years old.  His attorney was able to negotiate a plead deal to reduce the charges to a class A misdemeanor, but as a result of his plea he was required to register as a sex offender. He hired a new attorney and he filed a motion to withdraw Trotter’s guilty plea on grounds that Trotter’s plea was not “knowing and voluntary” because he was not notified of the sex offender registration requirements.  Trotter’s lawyer argued that having to register as a sex offender is a “direct consequence” of his guilty plea as opposed to a “collateral consequence,” and therefore, the court and Trotter’s first attorney should have notified him of that consequence.  A defendant’s plea can only be “knowing and voluntary” if he was aware of all direct consequences of his plea.

The Utah Supreme Court analyzed whether the registration requirement is collateral or direct and noted that “a consequence is collateral if it is unrelated to the length and nature of the sentence imposed on the basis of the plea.”  Under this definition the court found that the registration requirement is collateral because the court has nothing to do with it.  It is a civil remedy that is imposed by statute and which cannot be removed by the court in the criminal case.  It is much like a DUI defendant who loses his driver’s license after he is convicted of DUI because the Driver’s License Division takes it away.

The court also considered whether the registration requirement falls under the same exception as deportation.  The United States Supreme Court has ruled that courts must notify criminal defendants that a guilty plea could affect their immigration status. The Utah Supremes did not agree that registration as a sex offender and deportation are akin, finding that deportation is much more serious of a consequence, and therefore, unique in its exception.

Even though we aren’t constitutionally required to notify our clients of collateral consequences, we make every effort to make them aware of as many collateral consequences as possible.

Posted in Sex Crimes

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