Low-tier sex offenders gradually leave sex offender registry, says Eastern District

St. Louis County police’s attempts to register two tier I sex offenders for life failed in the Missouri Court of Appeals Eastern District — though the Western District affirmed a similar case last month.

The 2018 amendments to Missouri’s Sex Offender Registry Act (SORA) mirror the national Sex Offender Registration and Notification Act (SORNA), which organizes offenders into three tiers of severity. The amendments also allow tier I and II offenders already on the registry to petition for removal after their registration period ends, while tier III offenders stay on the list for life. Tier I offenders, who commit the lowest 15 offenses, must be registered for 15 years, though a clean record can reduce this to ten years.

In both June 7 opinions, tier I offenders had appealed St. Louis County Circuit Court judgments that denied their petitions to be removed from the registry. The Eastern District reversed and remanded both cases.

Appellant Brock Smith was added to the registry after he pled guilty in 2005 to first-degree sexual misconduct. In his 2021 petition to be removed, he cited his tier I status. The state requested to dismiss Smith’s petition, claiming that he is still required to register for life under the federal Sex Offender Registration and Notification Act (SORNA).

Nathaniel Gerard Diekman of Diekman & Leightner represented Smith and did not respond to a call requesting comment. Carlton W. Stewart, who was an assistant county counselor at the St. Louis County Counselor’s Office at the time, represented a majority of the respondents for both cases and deferred comment to the office. St. Louis County Counselor Beth Orwick declined to comment as the office considers next steps.

The opinion by Judge Kelly C. Broniec said the 2018 amendment explicitly stated that tier I and II offenders could petition to remove their names from the registry. A footnote indicated that the Western District’s May 3 opinion in MacColl v. Missouri State Highway Patrol, which affirmed that SORA registration requires registration for life, is still subject to a motion for rehearing or transfer to the Missouri Supreme Court and did not affect the Eastern District’s analysis.

With Judges Kurt S. Odenwald and John P. Torbitzky concurring, the Eastern District noted the circuit court relied on case law that the amendments’ language has rendered obsolete in the case of tier I and II offenders.

“The circuit court’s decision in this case also failed to account for the plain language of the current version of MO-SORA, and instead relied on prior decisions that interpreted and applied pre-amendment versions of the statute,” Broniec wrote.

This also was the case for appellant Gary Nelson Ford, in an Eastern District opinion by Judge Colleen Dolan. Stephen Fleddermann of Fleddermann Law Office represented Ford, and said that the state’s dependence on case law that doesn’t rely on the 2018 amendments in these cases, which also occurred in MacColl, was “strained logic.”

“This case clearly says that the statute says what it means and means what it says,” Fleddermann said.

Ford pled guilty to three counts of second-degree child molestation in 2004, considered a tier I offense. In 2018, he petitioned to be removed from the registry. St. Louis County officialsdid not present evidence that contradicted Ford’s petition according to the Eastern District opinion, but had the same state argument and circuit court result in Smith’s case.

“If we adopted MSHP’s position, none of these offenders would ever be eligible for removal, rendering much of the 2018 amendments meaningless,” Dolan wrote, with Judges Philip M. Hess and Angela Quigless concurring.

Both opinions directed the circuit court to remove Smith and Ford from the registry.

The cases are Brock Smith v. St. Louis County Police et al., ED109734, and Gary Nelson Ford v. Col. Jon Belmar, chief of police as chief law enforcement officer of St. Louis County, et al., ED109958.