Supreme Judicial Court invites amicus briefs on Effect of Sex Offender Registration and Notification Act on Lesser-Included-Offense Analysis

The Maine Supreme Judicial Court, sitting as the Law Court, invites briefs of amici curiae in State v. James P. Gantnier, Law Court docket number Aro-10-560, on the following issue:

Whether the requirement to comply with the registration requirements of the Sex Offender Registration and Notification Act of 1999 upon a conviction for an offense (the "SORNA offense") makes the "penalty" for the offense greater than the penalty for an offense that is subject to the same sentencing alternatives but that does not carry the SORNA registration requirement, for purposes of determining, pursuant to 17-A M.R.S.§ 13-A (2011), whether the other offense is a lesserincluded offense of the SORNA offense.

This appeal arises from a criminal conviction for unlawful sexual contact. The appellant contends that the trial court erred in denying his request for a jury instruction on the crimes of unlawful sexual touching and assault as lesser-included offenses. A person who is convicted of the charge of unlawful sexual contact (Class D), 17-A M.R.S. § 255-A(1)(A) (2011), has a duty to comply with the registration requirements of the Sex Offender Registration and Notification Act of 1999 as a ten-year registrant. 34-A M.R.S. § 11203(5), (6)(B) (2011). In contrast, a person who is convicted of unlawful sexual touching (Class D), 17-A M.R.S. § 260(1)(A) (2011), or of assault (Class D), 17-A M.R.S. § 207(1)(A) (2011), is not required to comply with the registration requirements of the Sex Offender Registration and Notification Act of 1999. In all other respects, the sentencing alternatives for the three crimes are identical. The Court requests that amici assume that unlawful sexual touching (Class D) and assault (Class D) must necessarily be committed when the offense of unlawful sexual contact (Class D) is committed, and confine their analysis to the issue of whether the imposition of the requirement to register under SORNA means that the potential penalty for unlawful sexual contact is greater than the potential penalties for unlawful sexual touching and assault for purposes of 17-A M.R.S. § 13-A.

An electronic copy of the parties' briefs is available from the Court at no charge upon request sent to lawcourt.clerk@courts.maine.gov.

An amicus brief may be filed by or on behalf of any individual, entity, or group of individuals and/or entities, without separate leave of the Court. All amicus briefs must be filed on or before April 20, 2012, and must comply with M.R. App. P. 7(c), 9(e)(1), and 9(f). In addition to filing and serving the required number of copies, amici must send a copy of their briefs electronically, in pdf format, to lawcourt.clerk@courts.maine.gov.

Dated: March 19, 2012
Matthew Pollack
Clerk of the Law Court
205 Newbury Street Room 139 Portland, Maine 04101
(207) 822-4146