THE STATE OF SOUTH CAROLINA In The Supreme Court

Clifford Thompson, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2014-001984

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Berkeley County R. Markley Dennis, Jr., Circuit Court Judge

Opinion No. 27610 Heard October 21, 2015 – Filed March 2, 2016

AFFIRMED IN PART, REVERSED IN PART

Lindsey S.Vann, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, and Assistant Attorney General Marcie E. Greene, all of Columbia, for Respondent.

ACTING JUSTICE TOAL: Clifford Thompson appeals the court of appeals'
decision in Thompson v. State , 409 S.C. 386, 762 S.E.2d 51 (Ct. App. 2014), affirming the circuit court's refusal to grant Thompson's request for declaratoryjudgments finding that: (1) his kidnapping offenses did not involve a sexual element; and (2) Thompson would not need to register as a sex offender upon his release from prison in 2020. We reve rse in part, and affirm in part.

F ACTS /P ROCEDURAL B ACKGROUND

From 1998 to 2000, an armed perpetrato r committed six robberies of hotels in Lexington, Richland, Berkeley, and Ch arleston counties. During each of these robberies, the perpetrator entered the hotel , held the clerk at gunpoint, restrained the clerk with either duct tape or rope, and stole money out of the hotel safe and till. After an investigation, the police a rrested Thompson for these robberies, and a grand jury indicted Thompson on multiple counts of armed robbery and kidnapping. 1

In 2001, Thompson pled guilty to six counts of armed robbery and four counts of kidnapping. At the time of the plea, the circuit court failed to make a finding that the four kidnapping offenses were not sexual in nature. See S.C. Code Ann. § 23-3-430(C)(15) (2007 & Supp. 2014) (stating that anyone convicted of kidnapping is considered a sex offender "e xcept when the court makes a finding on
the record that the offense did not in clude a criminal sexual offense or an attempted criminal sexual offense").

In 2009, after discovering that the South Carolina Department of Corrections (SCDC) classified him as a sex offende r due to his kidnapping convictions, Thompson filed a petition for a declaratory judgment, requesting the court find that the kidnapping offenses were not sexual in nature, and did not require him to register as a sex offender pursuant to s ection 23-3-430(C)(15). The State moved the court to dismiss Thompson's acti on under Rules 12(b)(1) and (6), SCRCP, arguing that Thompson's petition was not yet ripe because sex o ffender registration requirements are determined solely by the la w in effect at the time of an inmate’s release from prison, and Thompson would not be released until 2020.

The circuit court granted the State's motion, finding that the action was not ripe. The court further found that Thomps on was required to pursue administrative
review within the SCDC in order to chan ge his internal classification there. See Al-Shabazz v. State , 338 S.C. 354, 527 S.E.2d 742 (2000 ). The circuit court did not address Thompson's request that the cour t make a finding on the record that his

1 The kidnapping charges against Thompson stemmed solely from Thompson's alleged restraint of the clerks.kidnapping convictions were not sexual in nature.

In a split decision, the court of appeals affirmed. Thompson , 409 S.C. 386, 762 S.E.2d 51. Chief Judge Few, writing fo r the majority, found that "the circuit court properly determined no justiciable controversy existed and dismissed the action because the question of whether Thom pson should be required to register as a sex offender is not ripe for adjudication." Id. at 388, 762 S.E.2d at 52.

In dissent, Judge Thomas found th at Thompson's claim presented a justiciable controversy because of the SC DC's current classification of Thompson as a sex offender, noting that the classi fication "could have immediate and harmful
ramifications." Id. at 390–91, 762 S.E.2d at 53 (Thomas, J., dissenting). For example, Judge Thomas noted that beca use of his classification, Thompson was ineligible for substance abuse services and the ninety-day pre-release program. Id. at 391 n.7, 762 S.E.2d at 53 n.7 (Thomas, J ., dissenting). Further, Judge Thomas found that the SCDC's classification of Thompson was a "direct result of the circuit court's finding or failure to make any fi nding, that the [kidnapping] offense was a criminal sexual offense," and that therefore "any attempt by Thompson to challenge his status as a sex offender through the inmate grievance process would be futile in that the [SCDC] is bound by th e effect of the circuit court's decision regarding whether his kidnappi ng was sexual in nature." Id. at 391–92, 762 S.E.2d at 54 (Thomas, J., dissenting) (footnote omitted).

We granted Thompson's petition for a writ of certiorari to review the court of appeals' decision.

I SSUES

I. Whether the circuit court may properly issue a declaratory judgment that Thompson's kidnapping offenses did not involve
a sexual element?

II. Whether the circuit court may properly issue a declaratory judgment that Thompson need not register as a sex offender upon his release from prison in 2020?

III. Whether the circuit court may properly address the SCDC's classification of Thompson as a sex offender?

A NALYSISPursuant to South Carolina's Uniform Declaratory Judgments Act (the Declaratory Judgment Act), 2 "[c]ourts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations
whether or not further relief is or could be claimed." S.C. C ode Ann. § 15-53-20. "Any person . . . whose rights, status or other legal relations are affected by a statute . . . may have dete rmined any question of construction or validity arising under the [] statute . . . and obtain a declar ation of rights, status or other legal
relations thereunder." Id. § 15-53-30. 3

"To state a cause of action under the Declaratory Judgment Act, a party must demonstrate a justiciable controversy." Sunset Cay, L.L.C. v. City of Folly Beach

, 357 S.C. 414, 423, 593 S.E.2d 462, 466 (2004). "'A justiciable controversy is a
real and substantial controve rsy which is appropriate for judicial determination, as distinguished from a dispute or difference of a contingent, hypothetical or abstract
character.'" Id. (quoting Power v. McNair , 255 S.C. 150, 154, 177 S.E.2d 551, 553 (1970)); see also Peoples Fed. Sav. & Loan Ass'n of S.C. v. Res. Planning Corp.

, 358 S.C. 460, 477, 596 S.E. 2d 51, 60 (2004) (quoting Pee Dee Elec. Coop., Inc. v. Carolina Power & Light Co. , 279 S.C. 64, 66, 301 S.E.2d 761, 762 (1983)). The Court should liberally constr ue the Declaratory Judgment Act so as "to accomplish its intended purpose of affording a sp eedy and inexpensive method of deciding legal disputes and of settling legal right s and relationships, without awaiting a violation of the rights or a disturbance of the relationships." Graham v. State Farm
Mut. Auto. Ins. Co. , 319 S.C. 69, 71, 459 S.E.2d 844, 845 (1995).

I. Character of Kidnapping Offenses

2 S.C. Code Ann. §§ 15-53-10 to -140 (2005 & Supp. 2014).

3 Section 23-3-430 is found in the portion of the South Carolina Code encompassing South Carolina's sex offender registry. As we have repeatedly stated, the sex offender registry is a civ il requirement separate and apart from the criminal punishments associated with sexual offenses in this state. State v. Nation

, 408 S.C. 474, 481, 759 S. E.2d 428, 432 (2014) (citing In re Justin B. , 405 S.C. 391, 394, 404–08, 747 S.E.2d 774, 775, 781–83 (2013)). As such, a declaratory judgment, and not post-conviction relief (PCR) , is the appropriate vehicle in which
to address this matter. Cf. Williams v. Ozmint , 380 S.C. 473, 671 S.E.2d 600 (2008) (stating that PCR is intended to a ddress constitutional viol ations related to the criminal conviction (citing S.C. Code Ann. § 17- 27-20(a) (2007))).Thompson contends that in his action for a declaratory judgment, he requested two declarations: (1) that his kidnapping offenses did not involve a sexual element (the first declaration); and (2) that therefore he would not have to register as a sex offender in the future (the second declarati on). Thompson asserts that the circuit court and court of appeal s ignored the first declaration in their respective order and opinion, and only addressed the second. We agree.

During the hearing regarding the State's motion to dismiss, the circuit court
stated that a criminal defendant must request the court make a finding on the record regarding the character of a kidnappi ng offense at the time of a guilty plea or jury verdict. The circuit court furthe r stated that should the defendant fail to secure a finding at that time, he foreve r waives his right to assert that the kidnapping was not sexual in nature.

"Procedural due process imposes cons traints on governmental decisions which deprive individuals of liberty or pr operty interests within the meaning of the
Due Process Clause of the Fifth or Four teenth Amendment of the United States
Constitution." Kurschner v. City of Camden Planning Comm'n , 376 S.C. 165, 171, 656 S.E.2d 346, 350 (2008). Fundamenta lly, due process requires notice, a meaningful opportunity to be h eard, and judicial review. Id.

We find that Thompson has been deni ed a meaningful opportunity to be heard on whether his kidnapping offenses were sexual in nature. Section 23-3-430 is a civil statute, and we cannot imagine the General Assembly intended to allow a criminal defendant affected by section 23-3-430 the opportunity to be heard only during his criminal proceedings. While it is permissible—and even encouraged— for the sentencing court to determine the character of any kidnapping offenses at that time, the defendant is entitled to a meaningful opportunity to be heard on the matter at some point, because the civil consequences follow immediately after conviction, and not merely upon his release from prison. 4

4 For example, as Judge Thomas noted in her dissent, Thompson is ineligible to
receive substance abuse servi ces while incarcerated, or to enroll in the ninety-day pre-release program (a program designed to help soon-to-be-released inmates reintegrate back into society). Thompson , 409 S.C. at 391 n.7, 762 S.E.2d at 53 n.7 (Thomas, J., dissenting); see also Division of Behavioral Health and Substance
Abuse Services , S.C. Dep't of Corrs., h ttp://www.doc.sc.gov/programs / substance.jsp (last visited Dec. 15, 2015).We therefore reverse the court of app eals' affirmance of the trial court's order with respect to the first declarati on. On remand, Thompson and the State are entitled to a hearing to determine whet her Thompson's kidnapping offenses were sexual in nature. At that hearing, the c ourt should allow the victims' to testify if they so desire, and should consider the victims' opinions.

II. Future Sex Offender Registration

In Hazel v. State , we held that a person convi cted of kidnapping could not challenge whether he wa s required to register as a sex offender until the date of his release from prison, because that issue is entirely dependent on the sex offender registry statute in existence at that time. 377 S.C. 60, 64, 659 S.E.2d 137, 139 (2008) (detailing the history of the sex o ffender registry as it related to kidnapping offenses). Here, Thompson will not be released from prison until 2020. Because there is no way to determine whether th e General Assembly will amend section 23

- 3-430(C)(15) prior to 2020, a declaration th at Thompson is not required to register as a sex offender in the future would be purely advisory. Thus, the second declaration does not present a justiciable c ontroversy, and we a ffirm the court of appeals' decision with regards to the second declaration.

III. SCDC Classification

Because Thompson has not yet exhauste d the SCDC's internal grievance procedures, we decline to address this issue. Al-Shabazz , 338 S.C. at 375, 527 S.E.2d at 753 (finding that with respect to an inmate's sentence, sentence-related credits, or custody status, "[i]nitiating a gr ievance is a method an inmate uses to challenge such decisions with in the prison system"). Once Thomson receives his requested hearing regarding the nature of his kidnapping offenses, and once he attempts to have the SCDC modify his cl assification through the grievance system, he may obtain judicial re view of this issue. See id.

C ONCLUSION

For the foregoing reasons, we revers e the court of appeals' decision affirming the circuit court's refusal to address whether Thompson's kidnapping offenses did not involve a sexual element, and remand for a hearing on this issue. However, because the issue of whether Thompson will be re quired to register as a sex offender upon his release from prison is not yet ripe, and because the SCDC's classification of Thompson as a sex offe nder in prison is subject to internal grievance procedures, we affi rm the court of appeals' de cision with respect to thosetwo issues, and allow Thompson to file a grievance with the SCDC to become reclassified in the SCDC's system.

AFFIRMED IN PART, REVERSED IN PART.



### BEATTY, KITTREDGE, and HEARN, JJ., concur. PLEICONES, C.J., concurring in result only.