Williams - kidnapping and the sex offender registry
In Williams v. State, the South Carolina Court of Appeals held last month that registration as a sex offender is a collateral consequence of a kidnapping conviction, and therefore cannot be grounds for post conviction relief.
South Carolina's sex offender registry laws require that a conviction of kidnapping will automatically result in classification as a sex offender unless the judge makes a specific finding on the record that the crime did not involve a sex offense.
Williams pled guilty to kidnapping, two counts of armed robbery, possession of a stolen motor vehicle, failure to stop for a blue light, and possession of a gun by a person under the age of twenty-one. The petitioner filed a PCR petition asking for relief based on the attorney's failure to advise him that a plea to kidnapping would result in sex offender status and based on the attorney's failure to request a finding by the judge that Williams was not a sex offender.
It would make more sense for the legislature to have permitted a requirement of registration as a sex offender if there was a finding that the crime involved a sex offense, rather than making registration automatic. There are not a lot of facts in the appellate opinion, but it does not sound like this was a sex offense. Making registration automatic leaves the door open for too many mistakes - lawyers and even judges are not always going to know about the requirement, or are not going to think about it during the plea.
The Court found that Williams' attorney was not ineffective, because counsel cannot be ineffective, for purposes of PCR, for failing to advise a client as to any collateral consequence. Williams undoubtedly feels that his lawyer was ineffective, now that he is faced with the prospect of being pegged as a sex offender for the rest of his life, having his picture, name, and address on the internet, living with residency restrictions, and possibly having to wear a GPS monitor.
Although sex offender classification is a collateral consequence and he will not be granted a new trial, Williams should have other options for removal from the sex offender registry - if there was no sex offense involved in his case, possibly the prosecutor could have consented to re-open his case for the sole purpose of allowing the judge to make a finding of no registration on the record. If that is not possible, Williams could file suit requesting a declaratory judgment that there was no sex offense involved in his crime.
Williams' case reminds us of why it is so very important to get it right the first time. It is much easier than fixing mistakes later on down the road.
