State v Richard Pearrow
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February 14 2011
DA 10-0282
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 18
STATE OF MONTANA,
Plaintiff and Appellee,
v.
RICHARD STEPHEN PEARROW,
Defendant and Appellant.
APPEAL FROM:
District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC 08-337A
Honorable Holly Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joseph P. Howard, Attorney at Law, Great Falls, Montana
For Appellee:
Steve Bullock, Montana Attorney General, Jonathan M. Krauss, Assistant
Attorney General, Helena, Montana
Mary Lambert, Gallatin County Attorney, Ashley Whipple, Deputy
County Attorney, Bozeman, Montana
Submitted on Briefs: December 8, 2010
Decided: February 14, 2011
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1
Richard Pearrow appeals an order of the District Court for the Eighteenth Judicial
District, Gallatin County, finding him guilty of failing to register as a sexual offender.
We affirm.
¶2
Pearrow raises two issues on appeal:
¶3
1. Whether the District Court erred in denying Pearrow’s motion to dismiss the
Information on the grounds that the statutes requiring sexual offenders to register are
unconstitutionally vague as applied to Pearrow.
¶4
2. Whether the District Court erred in denying Pearrow’s motion to dismiss the
Information on the grounds that the statutes requiring sexual offenders to register violated
Pearrow’s substantive due process rights.
Factual and Procedural Background
¶5
Pearrow was convicted of a sexual offense in the State of Florida in January 2000.
He subsequently moved to Belgrade, Montana. In February 2006, Pearrow went to the
Bozeman Police Department and signed a Montana Department of Justice Sexual and
Violent Offender Registration Form (the Registration Form) in compliance with
Montana’s Sexual or Violent Offender Registration Act (the Act) (Title 46, chapter 23,
part 5, MCA). On the Registration Form, Pearrow indicated that his physical address was
510 Yellowstone Avenue, Belgrade, Montana.
¶6
The second page of the Registration Form states at the top: “Unless otherwise
noted, the following statements reflect the requirements as stated in the Montana Codes
2
Annotated, 46-23-501 et. al.” The Registration Form then sets forth ten statements
Pearrow was required to read and initial, including the following:
I must give written notice within 10 days of changing my address1 to the
agency with which I last registered. A Post Office box address is not
sufficient unless a physical address is also provided or, if no physical
address is available, complete directions to my place of residence.
[Emphasis added.]
In addition, at the bottom of the second page of the Registration Form, directly above
Pearrow’s signature, is the following statement: “I understand my duty to register and
that failure to do so is a criminal offense.”
¶7
Pearrow’s employment requires extensive travel.
He contracts for three
international seminar companies and gives computer workshops all over the country and
sometimes overseas. He is not required to notify law enforcement when he is traveling
for business.
¶8
Pearrow ended his residence at the 510 Yellowstone Avenue address on or about
November 6, 2008. On November 17, 2008, Pearrow began renting a space for his RV at
the Meridian RV Resort in Apache Junction, Arizona. Six days later, on November 23,
2008, Pearrow wrote a letter to the Belgrade Police Department informing them of a
change in his living situation.
Pearrow stated in his letter that since he traveled
extensively for business, it did not make sense to pay rent on a residence he rarely used.
Therefore, he had terminated his rental agreement for the Yellowstone Avenue
apartment. Pearrow also disclosed that his new address was for the Belgrade UPS store,
1
This Registration Form was based on § 46-23-505, MCA (2005). This statue was
amended in 2007 to provide for registration in person within three business days of a
change of residence.
3
which would forward his mail to him periodically.
Pearrow stated that he would
maintain his car, RV, and business registration in Montana.
He did not, however,
disclose that he was currently living in Arizona in his RV.
¶9
Upon receipt of Pearrow’s letter, Officer Dave Keen with the Belgrade Police
Department sent an e-mail to Dawn Spencer at the Montana Department of Justice stating
the circumstances as outlined by Pearrow in his letter and inquiring whether Pearrow
needed to register as a transient under the Act. After further investigation by Montana
law enforcement officials revealed that Pearrow was living in Arizona in his RV and not
in Belgrade, the State filed an Information charging Pearrow with knowingly failing to
keep his sexual offender registration current. The Information, filed on December 24,
2008, charged Pearrow with violating § 46-23-507, MCA. Pearrow moved to dismiss the
Information on the basis that (1) the Affidavit of Probable Cause submitted by the State
in support of its Motion for Leave to File Information was insufficient to establish the
probable cause necessary to grant leave to file the Information, and (2) the statute
requiring him to update his sexual offender registration upon his change of residence was
unconstitutionally vague as applied to his situation.
¶10
The District Court held a hearing on Pearrow’s motion on July 28, 2009, after
which the court denied the motion. Pearrow subsequently pled nolo contendere to felony
failure to register as a sexual offender in violation of § 46-23-507, MCA. The District
Court sentenced him to a two-year commitment to the Department of Corrections, all
suspended with conditions; designated him a Level I sexual offender; and required him to
register as a sexual offender according to statute.
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¶11
Pearrow does not challenge any part of his sentence on appeal.
Rather, he
challenges the constitutionality of § 46-23-507, MCA, claiming that it is
unconstitutionally vague as applied to him because it failed to inform him that the
requirement to provide a “physical address” (as specified in the Registration Form, but
not in the statute) could not be met by providing the physical address of a business from
which he rented a mail box. He also challenges the constitutionality of § 46-23-504,
MCA, on the grounds that it violates his right to substantive due process.
Discussion
¶12
Notwithstanding the fact that a good portion of Pearrow’s complaint is actually
with the language in the Registration Form and not the statutes, thereby making his
constitutionality arguments ineffective, we conclude that the dispositive issue in this case
is whether Pearrow filed his change of address in a timely manner.
¶13
At the time Pearrow signed the Registration Form in 2006, § 46-23-505, MCA
(2005), provided the following:
If an offender required to register under this part has a change of
address, the offender shall within 10 days of the change give written
notification of the new address to the agency with whom the offender last
registered or, if the offender was initially registered under 46-23-504(1)(b),
to the department and to the chief of police of the municipality or sheriff of
the county from which the offender is moving. [Emphasis added.]
Consequently, the Registration Form also provided that Pearrow must give written notice
within ten days of changing his address. In 2007, § 46-23-505, MCA, was amended to
provide that within three business days of a change of residence, an offender must appear
in person and give notification of the change to the registration agency with whom the
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offender last registered. And, § 46-23-507, MCA, the actual penalty statute under which
Pearrow was charged, has provided since 1997 without amendment, that a sexual or
violent offender is in violation of the Act if the offender knowingly fails to register,
verify registration, or keep registration current.
¶14
Although there is some disagreement between Pearrow and the State as to which
version of § 46-23-505, MCA, should apply in this case, that question is moot as Pearrow
did not comply with either version of this statute. As already indicated, Pearrow ended
his residence at the 510 Yellowstone Avenue address on or about November 6, 2008. He
did not notify the Belgrade Police Department of his change of address until 17 days later
when on November 23, 2008, he sent them a letter informing them of the change. The
Belgrade Police Department did not actually receive Pearrow’s letter until December 3,
2008, almost a month after Pearrow departed the Yellowstone Avenue address.
¶15
While a statute need not provide “perfect clarity and precise guidance,” it must at
least give a person fair notice that his conduct is forbidden. State v. Samples, 2008 MT
416, ¶ 17, 347 Mont. 292, 198 P.3d 803 (quoting State v. Leeson, 2003 MT 354, ¶¶ 11,
15, 319 Mont. 1, 82 P.3d 16). We conclude that Pearrow had fair notice in this case.
Whether Pearrow was required to appear in person within three business days to file his
change of residence as required by § 46-23-505, MCA (2007), or file a change of address
in writing within ten days as required by § 46-23-505, MCA (2005), Pearrow was
certainly on notice that he had to do something regarding his departure from his
registered address in Belgrade within at least ten days. Because he failed to take any
action toward updating his sexual offender registration until 17 days after departing the
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Yellowstone Avenue address, he was in violation of § 46-23-507, MCA, for failing to
keep his registration current.
¶16
The Dissent maintains that Pearrow did not actually change his address until he
began renting a space for his RV. Thus, the Dissent concludes that because Pearrow sent
a letter to the Belgrade Police Department within six days of signing that lease, he
complied with the statute. There are two problems with this contention.
¶17
First, contrary to the Dissent’s claim that the change of address did not take place
until Pearrow signed the lease for the RV space, we held in Samples that the date an
offender ceases to reside at his previously registered location is the date he changed his
address. Samples, ¶ 20. Second, the Dissent implies that mailing a change of address
within ten days is sufficient to satisfy the Registration Form and § 46-23-505, MCA
(2005). While we make no representation here whether the 2005 version or the 2007
version of § 46-23-505, MCA, is applicable in this case, we point out that both the
Registration Form and § 46-23-505, MCA (2005), provide that an offender must “give”
written notification “within” ten days.
Webster’s New American Dictionary 221
(Smithmark 1995), defines the word “give” to mean to “deliver” or “to put into the
possession or keeping of another.” Even if we were to use the date Pearrow signed the
lease on the RV space to begin the calculation of the ten-day time period, Pearrow did not
“deliver” to or “put into the possession or keeping” of the Belgrade Police Department
his change of address “within” ten days. Pearrow signed the lease on November 17,
2008, and the Belgrade Police Department did not receive the change of address until 16
days later, on December 3, 2008.
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¶18
On a final note, the Dissent points out that “Pearrow represented in his letter to the
Department that his legal research had led him to the conclusion that the Belgrade
address constituted a legal street address.” Dissent, ¶ 23. It is unfortunate that Pearrow’s
legal research did not also lead him to the conclusion that § 46-23-505, MCA, was
amended in 2007 to provide that a change of address must be made in person within three
business days.
¶19
Accordingly, we hold that the District Court did not err in finding Pearrow guilty
of failing to register as a sexual offender.
¶20
Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ JIM RICE
Justice Patricia O. Cotter dissents.
¶21
I dissent.
¶22
First, I would conclude the District Court erred in applying the 2007 law to
Pearrow. When he went to the Bozeman Police Department to register in 2006, Pearrow
signed a Registration Form obligating him to comply with 11 specific conditions,
including the obligation from the 2005 statute to give written notice within 10 days of a
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change of address. Included on the Registration Form was the advisement that he would
receive an address verification letter from the Department of Justice once a year, which
he must sign and return. This annual verification is required under § 46-23-504, MCA
(2005) and (2007). It is therefore evident that the State keeps at least annual tabs on
registrants. Despite this capability and legal requirement, nothing in the record reflects
that the State ever informed Pearrow of the significant change in the relocation notice
requirement under the 2007 law, which effectively negated the instructions and
obligations to which Pearrow committed in 2006. Yet, Pearrow was prosecuted under the
2007 law, of which he had no notice.
¶23
A person is presumed to know the law of Montana, and will not normally be
relieved of criminal liability for failure to comply with it. State v. G’Stohl, 2010 MT 7,
¶ 14, 355 Mont. 43, 223 P.3d 926. However, here, the State went so far as to expressly
lay out the law for Pearrow in the Registration Form he was obligated to read, commit to,
and sign. Respectfully, where the State undertakes to direct a person to follow a specific
set of legal instructions, it should not be later allowed to prosecute that person for failure
to follow a new set of instructions of which he has no notice. This is akin to the State or
a court changing the specific written conditions of a defendant’s probation without
advising him, and then revoking the defendant’s probation for failure to follow the
undisclosed conditions. It is a blatant denial of due process. Notwithstanding the express
retroactivity clause attendant to the sexual registration statutory revisions (Compiler’s
Comments, Section 31, Ch. 483, L. 2007), I would hold that the District Court should
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have applied the 2005 statute to Pearrow because—quite simply—that is the law the State
specifically directed him to follow.
¶24
I turn now to the Court’s Opinion. While not ever resolving the question of
whether the 2005 or 2007 version of § 46-23-507, MCA, should apply, the Court
concludes that—whatever the case—Pearrow was on notice that “he had to do something
regarding his departure from his registered address in Belgrade within at least ten days,”
Opinion, ¶ 15, and that he failed to do so. I respectfully disagree. Pearrow’s Registration
Form advised him that he must “give written notice within 10 days of changing my
address.” Opinion, ¶ 6. Pearrow fully complied with this obligation.
¶25
As the Court notes, Pearrow changed his address on November 17, 2008, when he
began renting a space for his RV in Apache Junction, Arizona. Opinion, ¶ 8. Six days
later, he wrote a letter to the Belgrade Police Department, informing it of his change of
address.
While he may have vacated his Belgrade address on November 6, 2008,
Pearrow was at liberty to travel for business without notifying law enforcement.
Opinion, ¶ 7. Further, there is no dispute that Pearrow did not commence living at a
different address until he signed the lease at the RV Park on November 17. It is this date
that the change of address took place, and the Court is therefore wrong to task Pearrow
with failing to notify the Department within 10 days of November 6. Pearrow gave
written notice within 6 days of changing his address, as the Registration Form and the
2005 statute instructed.
¶26
Pearrow advised the Belgrade Police Department in his letter that the Belgrade
UPS Store would forward his mail to him, and indeed, the record reflects that the police
10
had no problem securing the address of the Arizona RV Park from the UPS Store.
Pearrow represented in his letter to the Department that his legal research had led him to
the conclusion that the Belgrade address constituted a legal street address. He then
concluded his letter to the Department as follows: “If there is any information you need,
please contact me. I hope this covers all of the bases for my registration, and satisfies all
of the laws that I am bound to until this mark is removed from my past.”
¶27
A sexual offender who knowingly fails to keep his registration current is subject to
a felony conviction. Section 46-23-507, MCA (2005) and (2007). I submit that the
undisputed facts here demonstrate that Pearrow did not “knowingly” fail to keep his
registration current; in fact, he complied with the letter of the directions he was given,
and on top of that, offered to do anything additional he could do to make sure his
registration was lawful.
¶28
Where, as here, an individual does everything he can to ensure compliance with
the law, he should not be rewarded with a rush to a felony conviction. In my judgment,
this prosecution was heavy-handed and devoid of due process. I would reverse Pearrow’s
conviction, and I dissent from our refusal to do so.
/S/ PATRICIA COTTER
Justice Michael E Wheat joins the Dissent of Justice Patricia O. Cotter.
/S/ MICHAEL E WHEAT
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