State v. Wade

In this appeal Michael Wade, Jason Reece Peterson, and Edwin Carey each argue that article I, section 13 of the Missouri Constitution, which prohibits the passage of any law “retrospective in its operation,” applies to criminal laws and, therefore, their charges under § 566.150,1 are unconstitutional as applied to them. This Court recently held that the retrospective clause of article I, section 13 does not apply to criminal laws. These cases now require this Court to determine whether § 566.150 is a criminal law.

This Court concludes-that § 566.150 is a criminal law. Therefore, the circuit courts erred in dismissing the charges against Peterson and Carey on the grounds that the statute was unconstitutionally retrospective as applied to them, but the circuit court correctly overruled Wade’s motion to dismiss. The judgments entered against the State with respect to Peterson and Carey are reversed, and the cases are remanded. The judgment in Wade’s case is affirmed.

Factual and Procedural History

The facts are undisputed in each case. The cases are consolidated for opinion because they present the same legal question.

State v. Wade

On November 25, 1996, Wade pleaded guilty to statutory sodomy in the first degree, § 566.062, child molestation in the second degree, § 566.068, and sexual abuse in the first degree, § 566.100. Wade was sentenced, pursuant to § 559.115, RSMo 1994, to participate in the Sexual Offender Assessment Unit program. Upon successful completion of the pro*431gram, the circuit court suspended the remainder of Wade’s sentences and ordered him released on probation for a period of five years. Wade was a registered sex offender and in compliance with sex offender registration requirements.

On August 22, 2011, Wade was arrested at Castlewood State Park for violating § 566.150. Section 566.150 prohibits any individual who has pleaded guilty to, or been convicted of, or been found guilty of various sex offenses from “knowingly be[ing] present in or loiter[ing] within five hundred feet of any real property comprising any public park with playground equipment or a public swimming pool.” Wade was charged with knowingly being present within 500 feet of a public park with playground equipment. Wade filed a motion to dismiss the indictment, claiming the statute was unconstitutionally retrospective as applied to him in violation of article I, section 13. The circuit court overruled the motion, and Wade waived his right to a jury trial. After a bench trial, Wade was convicted and sentenced to three years’ imprisonment. The circuit court suspended execution of his sentence and placed Wade on probation for a period of five years. Wade appeals.

State v. Peterson

On January 20, 1998, Peterson was convicted of the offense of indecent behavior with a juvenile in Louisiana. Peterson resides in Missouri and is in compliance with all sex offender registration requirements. On June 17, 2011, a grand jury issued an indictment charging Peterson with the crime of loitering within 500 feet of a public park in violation of § 566.150.

Peterson filed a motion to dismiss the charge against him as unconstitutionally retrospective in violation of article I, section 13. The State responded by arguing the retrospective ban contained in the constitution applied only to civil rights and proceedings, not to criminal proceedings, relying on the holding in Ex parte Bethurum, 66 Mo. 545 (1877), to support its position. The State also argued that if the retrospective ban applied to criminal statutes, the statute did not tread on any of Peterson’s vested rights, nor did it confer any additional duty, obligation, or disability on Peterson to comply with the statute.

The circuit court sustained Peterson’s motion to dismiss the indictment. The circuit court assumed the ban contained in article I, section 13 was not limited to civil statutes and found § 566.150 was an unconstitutionally retrospective law as applied to Peterson. The State appeals.

State v. Carey

On May 7, 1997, Edwin Carey pleaded guilty to the offense of statutory rape in the second degree in violation of § 566.034, RSMo Supp.1997. Carey is in compliance with all sex offender registration requirements.

In 2010, the State filed an information charging Carey with the offense of loitering within 500 feet of a public park in violation of § 566.150. Carey filed a motion to dismiss the charge against him, alleging that § 566.150 is unconstitutionally retrospective as applied to him because it imposed a new obligation that was not present at the time of his conviction in violation of article I, section 13. Carey’s motion alleged that § 566.150 became effective 12 years after his May 1997 guilty plea. The motion further alleged that laws similar to § 566.150 had been found unconstitutionally retrospective as applied to offenders convicted before the enactment of the law. The State responded to the motion by arguing that article I, section 13’s prohibition against laws retrospective in their operation applied only to civil rights and remedies.

*432After a hearing, the circuit court sustained Carey’s motion and dismissed the information. The State appeals.

Because these three cases involve the validity of a statute, this Court has exclusive appellate jurisdiction. Mo. Const, art. V, § 3.

Standard of Review

Whether a statute is constitutional is an issue of law that this Court reviews de novo. State v. Honeycutt, 421 S.W.3d 410, 414 (Mo. banc 2013). “Statutes are presumed constitutional and will be found unconstitutional only if they clearly contravene a constitutional provision.” Id. “The person challenging the validity of the statute has the burden of proving the act clearly and undoubtedly violates the constitutional limitations.” Id.

The Prohibition of Laws Retrospective in Their Operation Does Not Apply to Criminal Laws

The United States Constitution2 and the constitutions of every state prohibit ex post facto laws. Only a handful of state constitutions prohibit the passage of laws retrospective in their operation.3 The Missouri Constitution has included such a provision since 1820.4 In the current eon-stitution, article I, section 13 provides, “That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.”

This Court recently held, in State v. Honeycutt, that the retrospective clause of article I, section 13 does not apply to criminal laws. 421 S.W.3d at 423-25. In Honeycutt, this Court reaffirmed the holding of Bethurum that the ex post facto clause and the clause prohibiting any law retrospective in its operation in article I, section 13 have separate and distinct legal meanings, whereby the ex post facto clause applies to determine the validity of criminal laws and the clause prohibiting any law retrospective in its operation applies to determine the validity of laws affecting civil rights and remedies. Bethurum, 66 Mo. at 552-53. For a complete textual and historical analysis of article I, section 13’s prohibitions against any law retrospective in its operation and further rationale behind this Court’s decision to reaffirm Bethurum’s holding that the retrospective clause does not apply to criminal laws, see Honeycutt, 421 S.W.3d 410.

In the face of the long-standing technical legal meaning of these terms and Bethu-*433rum’s necessary and express holding, Wade, Peterson, and Carey argue that this Court implicitly overruled Bethurum in two recent cases: R.L. v. Dep’t of Corrections, 245 S.W.3d 236 (Mo. banc 2008), and F.R. v. St. Charles Cnty. Sheriffs Dep’t, 301 S.W.3d 56 (Mo. banc 2010). In R.L., this Court held that a law prohibiting certain sex offenders from living within 1,000 feet of a school or child-care facility, as it was applied to that defendant, violated article I, section 13’s prohibition of any law retrospective in its operation. R.L., 245 S.W.3d at 237-38. In F.R., this Court held that an amended version of the law at issue in R.L. and a law that imposed several restrictions on what certain sex offenders could do on Halloween were unconstitutionally retrospective in their operation as applied to those defendants. F.R., 301 S.W.3d at 66. Each of the laws carried a criminal penalty for failure to comply with their provisions.5 Wade, Peterson, and Carey essentially assert that these two cases overruled Bethurum sub silentio and extended the application of the prohibition against laws retrospective in their operation to criminal laws without discussion, analysis or citation. The dissent agrees with this Court’s determination that Be-thurum was not overruled by R.L. and F.R. Dissent op. at 442-43. In response to this same argument made in Honeycutt, this Court explained:

Generally, this Court presumes, absent a contrary showing, that an opinion of this Court has not been overruled sub silentio. See Badahman v. Catering St. Louis, 395 S.W.3d 29, 37 n. 10 (Mo. banc 2013). Sub silentio is defined as “without notice being taken or without making a particular point of the matter in question.” Webster’s Third New International Dictionary 2279 (1976). “If the majority chooses to overrule [a case] it is far preferable to do so by the front door of reason rather than the amorphous back door of sub silentio.” Keller v. Marion Cty. Ambulance Distr., 820 S.W.2d 301, 308 (Mo. banc 1991) (Holstein, J., dissenting). This presumption can be traced, at least in part, to the doctrine of stare decisis. “The doctrine of stare decisis — to adhere to decided cases — promotes stability in the law by encouraging courts to adhere to precedents.” Med. Shoppe Int’l, Inc. v. Dir. of Revenue, 156 S.W.3d 333, 334-35 (Mo. banc 2005). Under the doctrine of stare decisis, decisions of this Court should not be lightly overruled, especially when “the opinion has remained unchanged for many years.” Sw. Bell Yellow Pages, Inc. v. Dir. Of Revenue, 94 S.W.3d 388, 391 (Mo. banc 2002).

Importantly, “[t]he maxim of stare de-cisis applies only to decisions on points arising and decided in causes” and does not extend to mere implications from issues actually decided. Broadwater v. Wabash R. Co., 212 Mo. 437, 110 S.W. 1084, 1086 (Mo.1908). To assert that a decision has been overruled sub silentio is the same as to assert that the decision has been overruled by implication. This Court’s presumption against sub silentio holdings, therefore, is based not only on the general preference that precedent be adhered to and decisions be expressly overruled, but . also because the implicit nature of a sub silentio holding has no stare decisis effect and is not binding on future decisions of this Court. R.L. and F.R. did not expressly address whether article I, section 13 applies to criminal *434laws, and this Court must presume those opinions made no decision on the issue.

In addition to the usual presumption against assuming a case was overruled sub silentio, a careful review of these cases demonstrates that this Court— without consideration — presumed the laws invalidated in R.L. and F.R. to be civil in nature. In R.L., this Court stated, “The constitutional bar on retrospective civil laws has been a part of Missouri law since this State adopted its first constitution in 1820.” 245 S.W.3d at 237 (emphasis added). The Court, without any briefing to suggest a contrary analysis, stated that “[t]he same long-standing principles applied in [ Doe v.] Phillips apply in this case.” Id. In Doe v. Phillips, this Court held that Missouri’s sex offender registration requirement was civil in nature and operated retrospectively in violation of article I, section 13. 194 S.W.3d 833, 850 (Mo. banc 2006). Based on the issues raised and discussed on the briefs of the parties, R.L. held that the residency requirement at issue there retrospectively imposed a new civil obligation in violation of the constitution. Id. at 237-38.

Similarly, the opinion in F.R. (concerning residency requirements and various Halloween restrictions) begins with the statement, “These two cases are simply cases that can be resolved by applying article I, section 13 in the same way as it was applied in Doe v. Phillips and R.L.” 301 S.W.3d at 61. As already noted, in both of these cases the Court stated that it was applying article I, section 13 to a civil law. The issue concerning whether article I, section 13 applied to criminal laws was not briefed by the parties in R.L. and F.R., and the Court made no formal analysis concerning the nature of the laws before it....

While this Court is not critical of counsel for the defendant making the argument that R.L. and F.R. reversed Bethurwm sub silentio, a fair reading of R.L. and F.R. demonstrates they do not hold that article I, section 13’s prohibition against laws retrospective in their operation applies to criminal laws. Neither case made an express holding to that effect, and the language used and authorities cited in each case demonstrate that the Court presumed the particular laws invalidated were civil laws without consideration or analysis of the issue.

421 S.W.3d at 422-24.6

As discussed more fully in the next section, in addition to holding that the retrospective clause does not apply to criminal laws, Honeycutt also held that when a law is challenged under either the ex post facto or retrospective clause of article I, section 13, it is essential that the analysis begins with a determination of whether the law being challenged is a criminal law or law affecting civil rights and remedies. 421 S.W.3d at 424. To the extent that R.L. and F.R. conflict with Honeycutt due to them failure to perform any analysis to determine whether the statute being chal*435lenged was a criminal law, they no longer should be followed.7

Section 566.150 is a Criminal Law

The question that this Court now must answer, and the dispositive one in this case, is whether § 566.150 is a criminal law. Honeycutt made clear that, when a law is challenged under either the ex post facto or retrospective clause of article I, section 13, it is essential that the analysis begins with a determination of whether the law under examination is civil or criminal. 421 S.W.3d at 424. Such a determination allows the evaluating court to apply the correct provision of the constitution to the law at issue.

To determine which provision of article I, section 13 the Court is required to apply, Honeycutt instructs that this Court utilize a two-part test for ascertaining whether a statute is criminal or civil in nature. Id. Pursuant to the test, the Court first will determine whether the legislature intended the statute to affect civil rights and remedies or criminal proceedings. Id. If the legislature intended to impose punishment, that ends the inquiry. Id. However, if the Court determines that the legislature intended the law to be civil, the Court then must determine whether the statutory scheme is so punitive in purpose or effect as to negate the intention to affect civil rights or remedies. Id. at 424-25. “Whether a statutory scheme is civil or criminal is first of all a question of statutory construction.” Id. at 424 (internal quotation marks omitted). As stated in Honeycutt,

The courts must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. An express legislative finding is one obvious indicator of legislative intent, but [ojther formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative of the legislature’s intent.

If a statute is determined to create a civil regulatory scheme, the Court must then examine whether the civil scheme was so punitive either in purpose or effect as to negate [the State’s] intention to deem it civil. To analyze the effects of the regulation, [this Court] examine[s] whether, in its necessary operation, the regulatory scheme: (1) has been regarded in our history and traditions as a punishment; (2) imposes an affirmative disability or restraint; (3) promotes the traditional aims of punishment; (4) has a rational connection to a nonpunitive purpose; or (5) is excessive with respect to that purpose.

Id. at 424-25 (citations and internal quotation marks omitted).8

*436Pursuant to Honeycutt, this Court is required to ascertain whether the legislature meant the statute to establish a crime and punishment for that crime or affect civil rights and remedies. 421 S.W.3d at 425. The analysis begins with this Court’s review of the statute’s text and its structure to determine whether the General Assembly intended the law to affect civil rights and remedies or to be a criminal statute. Id.

Section 566.150 provides:

1.Any person who has pleaded guilty to, or been convicted of, or been found guilty of:

(1) Violating any of the provisions of this chapter or the provisions of subsection 2 of section 568.020, incest; section 568.045, endangering the welfare of a child in the first degree; subsection 2 of section 568.080, use of a child in a sexual performance; section 568.090, promoting a sexual performance by a child; section 573.023, sexual exploitation of a minor; section 573.025, promoting child pornography; or section 573.040, furnishing pornographic material to minors; or (2) Any offense in any other state or foreign country, or under federal, tribal, or military jurisdiction which, if committed in this state, would be a violation listed in this section; shall not knowingly be present in or loiter within five hundred feet of any real property comprising any public park with playground equipment or a public swimming pool.

2. The first violation of the provisions of this section shall be a class D felony.

3. A second or subsequent violation of this section shall be a class C felony.

Section 566.150 is part of the criminal code, appears on its face to be a criminal statute, and does not explicitly indicate that the purpose of the statute is to protect the public by alerting them to sex offenders in their area. The statute is not a part of a civil regulatory scheme. Section 566.150 is located in Title XXXVIII of the Revised Statutes of Missouri, titled “Crimes and Punishment; Peace Officers and Public Defenders.” Chapter 566 is titled “Sexual Offenses.”9 Moreover, the *437statute itself uses the language of a criminal provision, providing a requisite mental state for the offense — “shall not knowingly be present.” It also prescribes the penalty for a violation; the first violation is a class D felony and any subsequent violation is a class C felony. Section 566.150 is written in the style of all other provisions of the criminal code, such as § 571.070,10 which criminalizes the possession of a firearm by a convicted felon and which this Court held is a criminal statute.11 See Honeycutt, 421 S.W.3d at 425-29.

Most significantly, § 566.150 does not depend on a sex offender’s registration as a sex offender. In fact, § 566.150 does not reference the sex offender registration list. An offender is guilty of violating § 566.150 independently of any registration requirement.

In addition to these obvious considerations, § 566.150 carries a very severe punishment. The obvious purpose to punish is distinct from the purpose of registration, which as discussed in R.W., is to protect public safety by giving the public and public agencies information about sex offenders. 168 S.W.3d at 69. “Registration is traditionally a government method of making available relevant information to law enforcement, not a method of punishment.” Id.

The purpose of § 566.150 is not to provide the public with any information whatsoever, but to punish a person who was convicted of one of the enumerated sex offenses when that person knowingly loiters within 500 feet of, or is present in, a park with playground equipment or a swimming pool. The General Assembly intended for this statute to punish felons, who had been convicted of committing specific, enumerated crimes, for engaging in future conduct that the General Assembly determined should be prohibited. While this necessarily also has a positive impact on public safety — as do all criminal statutes — this impact is directly related to past criminal conduct independent of any civil regulatory scheme designed for the purpose of giving the public greater access to information concerning certain prior sex offenders. The rationale is no different from punishing any prior felon for possessing a firearm in the future.

Furthermore, even if the legislature had intended this statute to aid the sexual registration system — which it does not do in any practical manner — the statute is so punitive in effect as to negate that purpose. In the second part of the two-part analysis, this Court considers whether in its necessary operation, the regulatory scheme: 1) has been regarded in our history and traditions as a punishment; 2) promotes the traditional aims of punishment; *4383) imposes an affirmative disability or restraint; 4) has a rational connection to a non-punitive purpose; or 5) is excessive with respect to that purpose.12

Section 566.150 is the type of statute that has been regarded as punishment throughout our history. The statute seeks to punish conduct that necessarily occurs subsequently to the conviction of a prior offense. In that respect, it is very similar to the legislative prohibition of any felon— not necessarily dangerous felons — from possessing firearms.

This statute does not require registration, and it does not provide any information to the public. Section 566.150 is designed solely to criminalize future conduct. This Court in R.W. distinguished sex offender registration statutes from those that punish on the grounds that sex offender registration statutes make information publicly available and do not physically confíne or restrain the movement of the registrant. 168 S.W.3d at 69. Neither of these characteristics describes § 566.150. The dissent asserts that § 566.150 should be considered as part of a comprehensive regulatory system in conjunction with the sex offender registration statutes. Of course this does not address the relevant inquiry which is whether the statute at issue is a criminal statute. There is a legally significant difference between the manner in which criminal laws and civil laws attempt to regulate. As has been stated, registration statutes regulate sex offenders by collecting information from anyone who is required to register and providing that information to law enforcement and the general public. This information, in theory, helps to make the public aware of potential dangers and may help law enforcement investigate incidents in a particular community or catch repeat offenders. Section 566.150, on the other hand, “regulates” in the same manner as all other criminal statutes, which is to punish someone for engaging in conduct that the General Assembly has prohibited. This is the same way that statutes that criminalize stealing “regulate” stealing.

Turning to the second factor, § 566.150 also promotes the traditional aims of punishment. “Two traditional aims of punishment are deterrence of future crimes and retribution for past crimes.” Id. Section 566.150 serves both of these aims of punishment. It serves a deterrent effect in the same manner as other criminal statutes by making certain conduct punishable by imprisonment. It is retributive for much the same reason: engaging in prohibited future conduct is punishable by imprisonment. Moreover, a second violation of this statute is punished more severely than a first offense.

Turning to the third factor, § 566.150 imposes a direct and affirmative restraint on a certain class of defendants. It prohibits anyone who has violated one of the enumerated statutes from being present in or loitering around certain public parks. This is unlike a registration statute that requires only that the defendant register and does not prohibit or restrain particular future conduct.

*439Turning to the fourth factor, the rational connection to a non-punitive purpose is more attenuated than it is with purely sex offender registration statutes. Unlike sex offender registration statutes, which provide the public with information, § 566.150 punishes future conduct. While ultimately it may deter certain sex offenders from going to certain parks and, in theory, make the parks safer, the predominant purpose of the statute is to punish or deter undesirable conduct. Every criminal statute is designed to deter certain undesirable conduct to make a safer environment for the general public. While § 566.150 may help protect the public, it does so in the same way as every other criminal statute.

Finally, § 566.150 is excessive with respect to any regulatory purpose. In R.W,, this Court found that purely sex offender registration statutes were not excessive because they provided aid to law enforcement when investigating future offenses and because registration statutes did not impose a substantial physical or legal impediment on a registrant’s ability to conduct his or her legal affairs. Id. at 70. Section 566.150 does not aid in the investigation of future crimes. It creates a new crime for those with prior convictions for certain crimes based on certain future conduct. Section 566.150 is far more punitive than requiring a person with a prior sex crime conviction to register as a sex offender.

Properly analyzed pursuant to Honey-cutt, § 566.150 is a criminal statute. As a criminal statute, § 566.150 is not subject to article I, section IB’s prohibition against laws retrospective in their operation. No party in any of the consolidated cases raised an alternative argument that § 566.150 violates article I, section 13’s prohibition of ex post facto laws.13 ‘“An issue that was never presented to or decided by the trial court is not preserved for appellate review.’ ” State v. Davis, 348 S.W.3d 768, 770 (Mo. banc 2011).

Because an appellate court is not a forum in which new points will be considered, but is merely a court of review to determine whether the rulings of the trial court, as there presented, were correct, a party seeking the correction of error must stand or fall on the record made in the trial court, thus it follows that only those objections or grounds of objection which were urged in the trial court, without change and without addition, will be considered on appeal.

Id. Absent plain error, this Court will not find that a lower court erred on an issue that was not put before it to decide. Id.

Conclusion

As recently reaffirmed in Honeycutt, the retrospective clause of article I, section 13 does not apply to criminal laws. Because § 566.150 is a criminal statute, the circuit court erred in dismissing the charges against Peterson and Carey on the ground that the statute was unconstitutionally retrospective as applied to them, but correctly overruled Wade’s motion to dismiss. The circuit courts’ judgments are reversed, *440and the cases are remanded’ with respect to Peterson and Carey. The judgment in Wade’s case is affirmed.

RUSSELL, C.J., and BRECKENRIDGE, J., concur in opinion of WILSON, J.

DRAPER, J., dissents in separate opinion filed.