WA Appeals Court : Man Relieved of Registration

September 30, 2009

Court of Appeals Division III – State of Washington
Opinion Information Sheet (readers are urged to read this entire important opinion)
PDF version here.

Docket Number: 27475-6 – Title of Case: State of Washington v. Brian A. McMillan
File Date: 09/17/2009

Excerpts of Opinion:
Brown, J. – The trial court, exercising its fact-finding discretion, relieved sex offender, Brian A. McMillan, of his duty to register. The State appeals, contending Mr. McMillan failed to show by clear and convincing evidence that continued registration no longer served the purpose of the registration statutes. Finding no error, we affirm.

On September 9, 2008, the trial court relieved Mr. McMillan of his duty to register, finding he had been in the community for over 10 years without being convicted of any new offenses and his likelihood to reoffend was low. The court partly relied on the declaration of Dr. Clark Ashworth, a clinical psychologist. Dr. Ashworth opined that Mr. McMillan did not pose “any significant risk of sexual re-offending.” Clerk’s Papers (CP) at 100. In his oral ruling, the judge discussed the registration statute, set forth the factors in deciding whether to relieve an offender’s registration requirement, and commented on the factors. The judge did not make a written finding that the purpose of the registration statutes would no longer be met if Mr. McMillan was required to continue to register. The State appealed.

Mr. McMillan complied with all SSOSA requirements. Over the last 10 years, Mr. McMillan has complied with probation, community supervision, community custody and worked with Dr. Ashworth, who opined that Mr. McMillan was at a low risk to reoffend. The judge stated, “as a matter of policy . . . . if I don’t grant it in this situation, a petition to drop the registration requirement, then when do I? In other words, if you don’t reward a probationer for having successfully done something ordered by the court, then the whole process becomes illusory.” RP at 11.

In sum, the trial court exercised its fact-finding discretion in deciding the evidence rose to the clear and convincing standard. In other words, Mr. McMillan proved to the trial court by clear and convincing evidence that the purpose of the registration statutes was no longer being met by continuing to require him to register.

This is an important court ruling because it sets precedent for those on registries across the nation to petition the court for relief of registration requirements. Any person who is appealing their cases to State Appeals Courts, should consider including this argument in their appeals. See “How to file Court of Appeals Brief”. Any legal professionals who read this blog are asked for their input on this matter.

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