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MARK J. HORTON, ) ) Petitioner-Appellant, ) ) vs. ) No. SD33329 ) STATE OF MISSOURI, ) Filed: April 13, 2015 ) Respondent-Respondent. )

APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY

Honorable Timothy W. Perigo, Circuit Judge

AFFIRMED Mark J. Horton (“Petitioner”) appeals the trial co urt’s denial of his petition for the

removal of his name from Missouri’s sex offender re gistry. We affirm the trial court’s judgment because Petitioner “has been . . . require d” to register under the federal Sex Offender Registration and Notification Act (“SORNA” ) 1 and, as a result, is required to register under Missouri’s Sex Offender Registration Act (“SORA”) 2 even though he may no longer be required to register under SORNA.

1 42 U.S.C. §§ 16901, et seq . (effective July 27, 2006).

2 Section 589.400, et seq ., RSMo Cum.Supp. 2008.2 Facts and Procedural History As the appellant, Petitioner had the responsibilit y to prepare a record on appeal that is sufficient to permit us to resolve his clai m in this appeal. Rule 81.12(c)-(e); 3 Hall

v. Hall , 345 S.W.3d 291, 292 n.1 (Mo.App. S.D. 2011). Pet itioner has failed to do so. The legal file contains only a docket sheet, a one- page petition, and a one-page judgment. Only a single transcript was filed with us, and tha t transcript reflects a hearing at which no evidence was tendered or admitted, and the trial court’s only substantive action at the hearing was to take judicial notice of state and fe deral statutes. No exhibits were deposited with us. We present the facts that are a ccepted as true by both Petitioner and

the State. 4 These “agreed” facts are the following. In Januar y 1996, Petitioner entered an Alford plea of guilty to the class A misdemeanor of sexua l abuse in the second degree for conduct that occurred in 1993 in Newton County in v iolation of section 566.110, RSMo Cum.Supp. 1990. 5 At the time of the offense, Petitioner was older than twenty and

Petitioner’s victim was thirteen. Petitioner’s mis demeanor offense caused him to be “a

tier I sex offender” under SORNA. In addition, the record shows that, on December 11 , 2013, in Newton County, Petitioner filed a petition to remove his name from the “sexual offender registry.”

3 All rule references are to Missouri Court Rules (2 015).

4 See Riggins v. Director of Revenue , No. SD33368, 2015 WL 452440, at *1 n.2 (Mo.App. S .D. January 27, 2015) (discussing rules for determining facts o n appeal when the record is incomplete).

5 North Carolina v. Alford , 400 U.S. 25 (1970). In a plea pursuant to the pr inciples announced in Alford , a defendant affirmatively claims he is innocent of th e crime to which he is pleading guilty, but “intell igently concludes that his interests require entry of a gui lty plea and the record before the judge contains s trong evidence of actual guilt.” Id. at 37. “An Alford plea . . . ‘stands on equal footing with one in wh ich an accused specifically admits the commission of the p articular act charged.’” Wilson v. State , 813 S.W.2d 833, 843 (Mo. banc 1991) (quoting Jenkins v. State , 788 S.W.2d 536, 538 (Mo.App. S.D. 1990)).3

Among other facts alleged in the petition are that Petitioner “has duly registered” and “[u]nder Section 16915(a)(1) of SORNA (42 U.S.C. § 16915), [Petitioner] no longer has a duty to register.” The trial court held a hearin g on February 14, 2014. At the hearing, the trial court expressed the view that “[i]t’s a l egal issue, not factual,” and counsel for Petitioner responded “[a]ll right. That sounds goo d.” No evidence was tendered or admitted at the hearing, and the trial court’s only substantive action at the hearing was to take judicial notice of state and federal statutes. The trial court denied Petitioner’s petition on April 2, 2014. Analysis In his sole point relied on, Petitioner claims tha t the trial court erred in denying his petition to remove his name from Missouri’s sex offender registry because Missouri’s Sex Offender Registration Act does not apply to Pet itioner’s pre-2000 plea to a misdemeanor, and because Petitioner is a “federal t ier I sex offender” and “may be removed from the registry 15 years after” his plea. We deny Petitioner’s point because it ignores well-established Missouri law. In reviewing a court-tried case, we will: affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. [ Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976)]. The interpretation and application of a statute to a given set of facts is a question of la w we review de novo, giving no deference to the trial court’s conclusion s. See Otte v. Edwards , 370 S.W.3d 898, 900 (Mo.App. E.D.2012). Solomon v. St. Charles County Prosecuting Attorney’ s Office , 409 S.W.3d 487, 489 (Mo.App. E.D. 2013).4

Petitioner is correct that SORA does not require h im to register as a sex offender based solely on his pre-2000 plea to a misdemeanor because (1) SORA did not require registration for a misdemeanor until August 28, 200 0, and (2) Missouri’s constitutional prohibition on laws enacted by the state being “ret rospective in [their] operation” prevents SORA from applying retroactively to Petiti oner’s pre-2000, misdemeanor plea. Doe v. Keathley , 290 S.W.3d 719, 20 (Mo. banc 2009) (“On August 28 , 2000, [SORA] was amended to require registration for misdemeanor offenses under chapter 566.”); Doe v. Phillips , 194 S.W.3d 833, 849-53 (Mo. banc 2006) (SORA cann ot be applied to “those persons who were convicted or pled guilty prior to” SORA’s effective date because of Missouri’s constitutional prohibition of “laws [tha t are] retrospective in their operation”);

Doe v. Blunt , 225 S.W.3d 421 (Mo. banc 2007) (applied Phillips to an amendment of SORA that added an offense to those offenses requir ing registration). However, SORA also requires a person to register a s a sex offender who “has been or is required to register under . . . federal . . . law.” Section 589.400.1(7), RSMo Cum.Supp. 2008; Doe v. Toelke , 389 S.W.3d 165, 167 (Mo. banc 2012). The federal Sex Offender Registration and Notification Act (effecti ve July 27, 2006) imposes an independent, federally mandated registration requir ement that is not subject to Missouri’s constitutional ban on state laws that operate retro spectively. Doe v. Keathley , 290 S.W.3d at 720; Roe v. Replogle , 408 S.W.3d 759, 767-69 (Mo. banc 2013). Further, SORNA has applied to persons who pled guilty before its enactment since at least August 1, 2008, following the United States Attorney Gener al’s issuance of final guidelines. Vaughan v. Missouri Department of Corrections , 385 S.W.3d 465, 468 (Mo.App. W.D. 2012); United States v. Whitlow , 714 F.3d 41 (1 st Cir.), cert. denied , 134 S.Ct. 2875

(2013); see also Doe v. Keathley , 290 S.W.3d at 720 (“SORNA applies to individuals who committed a sex offense prior to July 2[7], 200 6. 42 U.S.C. section 16913(d); 28 C.F.R., section 72.3.”); Roe v. Replogle , 408 S.W.3d at 768 (“SORNA’s registration requirement applies to all individuals convicted of a sex offense. Sections 16911(1), 16913. Accordingly, an offender who completed his involvement with the criminal justice system before the enactment of SORNA, such as Mr. Roe, still may be required to register. Doe v. Keathley , 344 S.W.3d [759,] 770 [(Mo.App. W.D. 2011)].”). As a tier I sex offender under SORNA, Petitioner w as required to “keep his registration current for” fifteen years “unless . . . allowed a reduction.” 42 U.S.C. §16915(a)(1). If allowed, the reduction for a tier I sex offender is five years. 42 U.S.C. §16915(b)(3)(A). The record does not contain any e vidence that Petitioner ever sought or was “allowed” a reduction. As a result, at a minim um, Petitioner was required to register as a sex offender under SORNA from at least August 1, 2008 to January 2011, when his fifteen year registration period expired. Inasmuch as Petitioner “has been” required to register under federal law, he now is required to r egister in Missouri under SORA even though he may no longer be required to register und er federal law. Toelke , 389 S.W.3d at 167. As the Eastern District recently summarize d in the context of a defendant’s guilty plea to a misdemeanor in April 1996: In their first point on appeal, Defendants contend the trial court erred in finding Solomon met his federal registrati on obligation and, therefore, did not have to register under Missouri law. Defendants argue that a sex offender who has been or is required to register under federal law is required to register under Missouri law, eve n if the federal requirement has lapsed. We agree. The interplay between the federal registration req uirements pursuant to SORNA and Missouri’s registration requi rements pursuant to SORA has been well-documented. See Doe v. Toelke , 389 S.W.3d 165, 166–67 (Mo. banc 2012); Doe v. Keathley , 290 S.W.3d 719, 720–21 (Mo.6 banc 2009). SORA requires a Missouri resident to r egister as a sex offender if he or she “has been or is required to r egister under ... federal ... law....” Section 589.400.1(7). SORNA provides “a sex offender shall register ... in each jurisdiction where the offende r resides.” 43 U.S.C. Section 16913(a).

. . . . Solomon’s requirement to register as a sex offende r pursuant to SORNA triggered an independent obligation for him t o register as a sex offender pursuant to SORA. As such, Solomon’s cont ention that his federal registration requirement cannot serve as th e sole basis to require registration under Missouri law is belied by the co ntrolling precedents. In Toelke and Keathley , the Missouri Supreme Court held that a Missouri resident deemed a sex offender pursuant to the term s of SORNA has an “independent, federally mandated registration requi rement” that triggers the individual’s duty to register in Missouri. Toelke , 389 S.W.3d at 167; Keathley , 290 S.W.3d at 720. The court found that the Stat e’s registration requirements in Section 589.400.1(7) of SORA are ba sed on the person’s present status as a sex offender who “has been or i s required” to register pursuant to SORNA. Toelke , 389 S.W.3d at 167. Therefore, if an individual has been required to register pursuant t o SORNA, he or she is presently required to register pursuant to SORA. Id

. Solomon concedes that he was required to register as a sex offender pursuant to SORNA. That registration requ irement triggered an independent obligation for him to register pursuant to Section 589.400.1(7) of SORA. The registration requirement s of SORA are lifetime registration requirements, unless . . . na rrow criteria are met[.]

Solomon , 409 S.W.3d at 489-90; see also Doe v. Replogle , 445 S.W.3d 573, 575-76 (Mo.App. S.D. 2013), cert. denied , 134 S.Ct. 2853 (2014) (similar summary of the law in the context of a tier III sex offender). Petitione r does not claim that he meets any of the “narrow criteria” that permit a reduced registratio n period under SORA. Petitioner now is required to register under SORA because he “has been” required to register under federal law (i.e., SORNA) from at least August 1, 2 008 until January 2011. In the argument portions of his briefs, Petitioner raises two claims that were not pled, or presented to, or decided by the trial cour t, and were not included in his point relied on in this appeal. We decline to review eit her of these claims because we will not7

convict a trial court of error on an issue not pres ented to the trial court for decision. Vaughan , 385 S.W.3d at 468; see also Brown v. Brown , 423 S.W.3d 784, 788 (Mo. banc 2014) (“‘An issue that was never presented to or de cided by the trial court is not preserved for appellate review.’” (quoting State ex rel. Nixon v. American Tobacco Co.,

Inc. , 34 S.W.3d 122, 129 (Mo. banc 2000)); Doe v. Keathley , 344 S.W.3d 759, 770 (Mo.App. W.D. 2011) (“Doe’s petition only sought re lief on the basis that he had not

been ‘convicted’ of a sex offense within the meanin g of the statute. He did not allege that he should be exempted from SORNA’s registration req uirements because he had completed his involvement in Missouri’s criminal ju stice system at the time the statute

became effective. Doe is not entitled to relief on a ground he did not assert in the circuit court.”). In addition, an argument not included in an appellant’s point relied on is not preserved for our review. Rule 84.04(e) (“The argu ment shall be limited to those errors included in the ‘Points Relied On.’”); State v. Guinn , No. SD33028, 2014 WL 6845559, *3 n.4 (Mo.App. S.D. Dec. 4, 2014). Petitioner’s point is denied, and the trial court’ s judgment is affirmed.

Nancy Steffen Rahmeyer, J. - Opinion Author Mary W. Sheffield, P.J. - Concurs Don E. Burrell, J. - Concurs