CHAPTER 429
FORMERLY
HOUSE BILL NO. 706
AS AMENDED BY HOUSE AMENDMENT NOS.1, 2, 3 AND 4 AND
SENATE AMENDMENT NO. 1
AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO SEX OFFENDERS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Section 4120 of Title 11 of the Delaware Code by deleting said section in its entirety and substituting in lieu thereof a new § 4120 to read as follows:
"§ 4120. Registration of sex offenders.
(a) Unless otherwise indicated, the definitions set forth in § 4121(a) of this Title shall apply to this section. In addition, when used in this section, the phrase 'custodial institution' includes any Level IV or V facility operated by or for the Department of Correction, the Division of Youth Rehabilitative Services or the Delaware Psychiatric Center, or any like institution, and the phrase 'temporary resident' shall include any person who is regularly employed or regularly works in Delaware, or who is a student in Delaware.
(b) Any sex offender who is released, discharged or paroled from any Level IV or Level V facility or other custodial institution after he or she has completed a sentence imposed following a conviction for any offense specified in § 4121(a)(4) of this Title shall be required to register as a sex offender. The registration shall be completed during the Level IV or V sentence, but not more than 90 days, nor less than 45 days, prior to the offender's release, discharge or parole. The registration information shall be collected from the sex offender by the agency having custody over him or her at the time specified herein for registration. This subsection shall apply to any sex offender who is sentenced to serve any portion of his or her sentence at Level IV or V, unless such sentence is suspended in its entirety, in which case subsection (c) of this section shall apply. The registration required by this subsection shall be required whenever the sex offender is released from any Level V facility to any Level IV facility, and again when the offender is released from the Level IV facility.
If an offender is released to a treatment program by the Division of Youth Rehabilitative Services and the date of release could not have been determined 45 days prior to release, registration shall be completed within 48 hours of determining the release date, or upon release, whichever is earlier.
(c) Any sex offender who is sentenced to Level IV home confinement, or to a period of probation at Level III or below, or who is required to pay a fine of any amount following a conviction for any offense specified in § 4121(a)(4) of this Title shall be required to register as a sex offender. The registration information shall be collected from the sex offender by the sentencing court following the conviction, but no later than the time of sentencing.
() (1) Registration information shall be collected by the agency or court specified in subsections (b) and (c) of this section on registration forms provided by the Superintendent of the Delaware State Police. The original copy of the completed and executed registration form shall be forwarded by the registering agency or court to the Superintendent of the Delaware State Police within three business days following the completion of the form. The completed registration form shall be signed by the sex offender and by a witness to the signature representing the registering agency or court. The registration information shall be immediately entered into DELJIS by the registering agency or court, unless such agency or court does not have access to DELJIS in which case the completed registration form shall be immediately forwarded to the Superintendent of the Delaware State Police who shall immediately enter the registration information into DELJIS. Registration information entered into DELJIS pursuant to this subsection shall be entered into a database of registered sex offenders which shall be developed and maintained by DELJIS. Nothing herein shall prevent the use of the registered sex offender database for any lawful purpose. The Superintendent of the Delaware State Police shall have the authority to audit the registration forms and information, and shall have the authority to require sex offender to provide revised or additional information, photographs, fingerprints or exemplars if those submitted are deemed to be insufficient, and the sex offender may be required to appear at a Delaware State Police facility for such purposes.
(2) The registration forms shall include, but are not limited to, the following information: the sex offender's legal name, any previously used names, aliases or nicknames, and the age, gender, race and physical description of the sex offender. The registration form shall also include all other known identifying factors, the offense history and the sex offender's anticipated place of future residence and employment. The forms shall also include a statement of any relevant conditions of release, discharge, parole or probation applicable to the sex offender. Additionally, the form shall identify the age of the victim(s) of the offense(s) and describe his or her relationship to the offender. The form shall also indicate on its face that false statements therein are punishable by law. A photograph of the offender taken at the time of registration shall be appended to the registration form except that no photograph shall be required if the offender is re-registering within 2 years of a previous registration which was accompanied by a photograph.
(e) (1) Any person convicted of any offense specified in the laws of another State, the United States or any territory of the United States which is the same as, or equivalent to, any of the offenses set forth in § 4121(a)(4) of this Title, and who is a permanent or temporary resident of the State of Delaware on the date of his or her conviction shall register as a sex offender within seven business days of conviction, unless the person is confined in a penal institution located outside the State of Delaware at the time of conviction, in which case the person shall register as a sex offender within seven business days of his or her first return to the State of Delaware after release from custody. Any such person shall register at a designated Delaware State Police facility, and the Delaware State Police shall be deemed to be the registering agency.
(2) Any person convicted of any offense specified in the laws of another State, the United States or any territory of the United States which is the same as, or equivalent to, any of the offenses set forth in § 4121(a)(4) of this Title, who is not a permanent or temporary resident of the State of Delaware on the date of his or her conviction, and who thereafter becomes a permanent or temporary resident of the State of Delaware shall register as a sex offender within seven business days of establishing permanent or temporary residency within the State. Any person shall register at a designated Delaware State Police facility, and the Delaware State Police shall be deemed to be the registering agency.
(3) Any person convicted as described in paragraph (1) or (2) of this subsection, who is thereafter released on probation, parole or any form of early release which is supervised or monitored by the Department of Correction or the Division of Youth Rehabilitative Services shall be registered pursuant to this subsection. The Department of Correction or the Division of Rehabilitative Services shall ensure and verify such registration.
(f) (1) Any sex offender who is required to register pursuant to this section, who thereafter changes his or her residence address, shall re-register with the
Delaware State Police within seven business days of the change of address. The sex offender shall be required to provide adequate verification of his or her residence at the stated address. The Superintendent of the Delaware State Police shall be deemed to be the registering agency and shall comply with the requirements of subsection (d) of this section.
(2) Within three business days of receiving a re-registration as provided in paragraph (f)(1) of this section, the Superintendent of the Delaware State Police shall notify the chief law enforcement officer having jurisdiction over the sex offender's prior residence and the chief law enforcement officer having jurisdiction over the offender's new residence. The notice shall include, but is not limited to, all available registration information pertaining to the sex offender as set forth in subsection (d) of this section.
(3) Whenever a sex offender re-registers pursuant to this subsection, notification shall be provided pursuant to the requirements of § 4121 of this Title.
(4) Any agency or court which collects registration information from a sex offender pursuant to this section shall, at the time of registration, provide written notice to the sex offender of his or her duty to re-register pursuant to this section. The written notice shall also inform the offender that if he or she changes residence to another State, such new address must be registered with the Delaware State Police, and with a law enforcement agency having jurisdiction over his or her new residence. The written notice shall be provided on forms provided by the Superintendent of the Delaware State Police. Receipt of this written notice shall he acknowledged by the sex offender, who shall sign the original copy of the written notice. The original copy of the written notice shall be forwarded to the Superintendent of the Delaware State Police along with the registration form. Failure of the registering agency to provide such written notice shall not constitute a defense to any prosecution based upon a violation of this section.
(5) This requirements of this subsection shall apply regardless of whether the sex offender's new residence is located within or without the State of Delaware.
(6) Any sex offender who is required to re-register pursuant to this subsection, who is serving a sentence at Level II, III or IV at the time of such re-registration, may re-register with the agency supervising his or her sentence within seven business days of the change of address.
(g) (1) Any person required to register as a sex offender pursuant to this
section shall be required periodically to verify that he or she continues to reside at the address provided at the time of registration. The frequency of periodic address verification shall be:
a. every 90 days following the date of completion of the initial registration form if the person is designated to Risk Assessment Tier Ill pursuant to the provisions of § 4121 of this Title; or
b. one year after the completion of the initial registration form, and thereafter then annually, if the person is designated to Risk Assessment Tier II or I pursuant to the provisions of § 4121 of this Title.
(2) Address verification pursuant to this subsection shall be by mail. At least thirty days prior to the date specified in this subsection for a sex offender's verification, the Superintendent of the Delaware State Police shall mail a non-forwardable address verification form to the offender's last-reported address. The sex offender shall return the address verification form by mail to the Superintendent of the Delaware State Police on or before the date specified for verification. Any sex offender who fails to do so shall be in violation of thissection unless the offender establishes by a preponderance of the evidence, that he or she has not changed his or her residence address since the last verification.
(h) Any sex offender required to register pursuant to this section may petition the Superior Court for release from the registration requirements as set forth in § 4121(0(2) of this Title.
(i) Any agency responsible for complying with this section may promulgate reasonable regulations, policies and procedures for the purpose of implementing this section. Such rules, regulations, policies and procedures shall be effective and enforceable upon their adoption by the agency, and shall not be subject to the provisions of Chapter 11 or 101 of Title 29 of the Delaware Code.
(j) All elected public officials, public employees or public agencies are immune from civil liability for any discretionary decision to release relevant information, unless it is shown that the official, employee or agency acted with gross negligence or in bad faith. The immunity provided under this section applies to the release or relevant information to other employees or officials or to the general public. There shall be no civil legal remedies available as a cause of action against any public official, public employee or public agency for failing to release information as authorized in this section.
(k) Any sex offender who knowingly or recklessly fails to register or re-register pursuant to this section or to otherwise comply with any of the provisions of this section, shall be guilty of a class G felony.
(l) Any registration or re-registration information collected by the Superintendent of the Delaware State Police pursuant to this section shall be promptly forwarded to the Federal Bureau of Investigation for use pursuant to 42 U.S.C. § 14072.
(m) Notwithstanding any law, rule or regulation to the contrary, any law enforcement agency may release relevant information collected pursuant to this section where it is necessary to protect the public concerning a sex offender required to register pursuant to this section, except that the identity of a victim of the offense shall not be released."
Section 2. Amend subchapter III of chapter 41 of Title 11 of the Delaware Code by adding thereto 2 new sections, to be designated as § 4121 and § 4122, to read as follows:
"§ 4121. Community notification of sex offenders on probation, parole, conditional release, or release from confinement.
(a) When used in this subchapter:
(1) 'community notification' means notice which is provided by any method devised specifically to notify members of the public who are likely to encounter a sex offender. Methods of notification may include door-to-door appearances, mail, telephone, newspapers, or notices to schools and licensed day care facilities within the community, or any combination thereof. Community notification may also include a photograph of the offender.
(2) 'conviction' and 'convicted' shall include, in addition to their ordinary meanings, adjudications of delinquency and persons found guilty but mentally ill or not guilty by reason of insanity, as provided in § 401 of this Title.
(3) 'searchable records available to the public' means records regarding every sex offender convicted after June 27, 1994 who is subject to the registration requirements of § 4120 of this Title and who is thereafter designated to Risk Assessment Tier II or III pursuant to this section, Such records shall also include the last verified address for the offender, and shall identify the specific sex offense(s) for which the offender was convicted, and the date(s) of the conviction(s). The records may also include other information designated for public access by the Superintendent of the Delaware State Police. These records shall be searchable by the name of the sex offender and by suitable geographic criteria, and shall be made available to the public upon request through police agencies and public libraries, and by means of the Internet. The records shall be maintained by the Superintendent of the Delaware State Police, as set forth in § 4120 of this Title, and elsewhere in this section. They shall be updated as often as practicable, but not less than every three months.
(4) 'sex offender' means any person who is, or has been:
a. convicted after June 27, 1994 of any of the offenses specified in §§ 765 through 780, § 1100, §§ 1108 through 1112, § 1352(2) or § 1353(2) of this Title , or of any attempt to commit any of the aforementioned offenses; or
b. any juvenile who is adjudicated delinquent after June 27, 1994 of any offense which would constitute any of the offenses set forth in subparagraph a, of this paragraph if he or she had been charged as an adult; or
c. convicted after June 27, 1994 of any offense specified in the laws of another State, the United States or any territory of the United States which is the same as, or equivalent to, any of the offenses set forth in subparagraph a., b., or d. of this paragraph; or
. convicted after September 1, 1998 of a violation of § 783(4) or § 783A(4) of this Title, if the purpose of the crime was to facilitate any offense set forth in subparagraph a., b. or c, of this paragraph; or
a. charged by complaint, petition, information or indictment with any of the offenses set forth in subparagraphs a., b., c. or d. of this paragraph, and who thereafter pleads guilty to any offense included in the originally charged offense, as provided in § 206 of this Title, if the person is thereafter designated as a sex offender by the sentencing judge pursuant to subsection (e) of this section, such guilty plea occurring after September 1, 1998; or
. convicted on or before June 27, 1994 of any of the offenses set forth in subparagraphs a., b., c. or d. of this paragraph, and who is as of September 1, 1998, serving a sentence of probation or parole as part of the sentence imposed for such conviction; who thereafter is deemed by a court of competent jurisdiction to have violated the terms or conditions of his or her probation or parole; and, who is thereafter designated as a sex offender by the sentencing judge pursuant to subsection (e) of this section; or
. any person convicted after June 27, 1994 of a violation of § 764 of this Title if the person had previously been convicted of the same offense or any other offense set forth in this paragraph, and the previous conviction occurred within five years of the date of the conviction for the current offense.
(b) Upon a person's conviction or adjudication of delinquency for any offense set forth in subparagraphs (a)(4)a., d. or g. of this section, the sentencing court shall inform the person that he or she shall be designated as a sex offender and that a Risk Assessment Tier will be assigned to him or her by the court. Upon a person's conviction or adjudication of delinquency for any offense set forth in subparagraph (a)(4)e. or 1. of this section, upon notice by the State of its intent to seek to have the person designated as a sex offender, the court shall inform the person that, at a designated time after sentencing, a hearing will be held to determine whether he or she shall be designated as a sex offender by the court, and that if the person is so designated, a Risk Assessment Tier will be assigned to him or her by the sentencing court.
(c) Following the sentencing of a person convicted or adjudicated delinquent for any offense described in subparagraphs (a)(4)a., b., d. or g. of this section, the sentencing court shall conduct a hearing at which time it shall designate the person as a sex offender and assign him or her to a Risk Assessment Tier. Any hearing required by this section shall be separate from and shall follow the sentencing hearing, provided that such hearing may be held immediately following the sentencing hearing.
(d) Following the sentencing of a person convicted or adjudicated delinquent for any offense described in subparagraph (a)(4) e. of this section, or following a finding by the sentencing court that the person has violated the terms of his or her probation or parole as set forth in subparagraph (a)(4)f. of this section, and upon motion of the State, the sentencing court shall conduct a hearing following which it shall determine whether the person shall be designated as a sex offender. The motion seeking to have a person designated as a sex offender shall be filed by the State promptly after the person's conviction, or the finding of a violation of the terms of the person's probation or parole, and before sentencing; provided, however, that the State shall not be required to file a motion if a written plea agreement or finding of violation has been entered into with the person which clearly informs the person of the State's intention to request that the Court designate the person as a sex offender. In making its determination as to whether to designate the person a sex offender, the sentencing court shall weigh all relevant evidence adduced at the hearing which bears upon the particular facts and circumstances of the offense (and in the case of a violation of the terms of probation and parole both the facts and circumstances of the violation as well as those of the original underlying offense) and the character and propensities of the person. The court shall designate the person a sex offender if it determines by a preponderance of the evidence that the public safety will he enhanced by such designation. In the event the sentencing court determines that the person shall be designated as a sex offender, it shall then immediately assign the defendant to the Risk Assessment Tier applicable for the originally charged offense in the case of a plea agreement or of the underlying offense in the case of a violation of probation or parole.
(e) Sex offenders shall be assigned to a Risk Assessment Tier as follows:
(1) Risk Assessment Tier III. Any sex offender convicted or adjudicated delinquent of any of the following offenses shall be designated by the court to Risk Assessment Tier III:
a. Rape in the First Degree, Rape in the Second Degree, Unlawful Sexual Contact in the First Degree, Unlawful Sexual Intercourse in the First or Second Degree, Unlawful Sexual Penetration in the First or Second Degree, Unlawful Sexual Contact in the First Degree, Continuous Sexual Abuse of a Child, Sexual Exploitation of a Child; or
b. Kidnapping in the First or Second Degree, if the purpose of the crime was to facilitate the commission of any offense set forth in subsection (a)(4) of this section, where the defendant is not a parent, step parent or guardian of the victim; or
. any attempt to commit any of the offenses set forth in subparagraphs a. or b. of this paragraph; or
a. any offense specified in the laws of another State, the United States or any territory of the United States which is the same as, or equivalent to, any offense set forth in subparagraphs a. through c. of this paragraph; or
b. upon motion of the State, any person convicted of any felony set forth in §§ 761 through 779 or § 1108 through 1111 of this Title which is not otherwise set forth in subparagraphs a. through c. of this paragraph. if the victim of the offense had not yet reached his or her fourteenth birthday at the time of the crime, and if the sentencing court determines by a preponderance of the evidence, after it weighs all relevant evidence which bears upon the particular facts and circumstances of the offense and the character and propensities of the offender, that public safety will be enhanced by assigning the offender to Risk Assessment Tier III.
(2) Risk Assessment Tier II. Any sex offender convicted or adjudicated delinquent of any of the following offenses shall be designated by the court to Risk Assessment Tier II:
a. Rape in the Third Degree, Rape in the Fourth Degree, Unlawful Sexual Contact in the Second Degree, Unlawful Sexual Intercourse in the Third Degree, Unlawful Sexual Penetration in the Third Degree, Sexual Extortion, Bestiality, Dangerous Crime Against a Child, Unlawfully Dealing in Material Depicting a Child Engaging in Prohibited Sexual Act; or
b any attempt to commit any of the offenses set forth in subparagraph a. of this paragraph; or
c. any offense specified in the laws of another State, the United States or any territory of the United States which is the same as, or equivalent to, any of the offenses set forth in subparagraphs a. and b. of this paragraph; or
d.upon motion of the State, any person convicted of any offense set forth in §§76I through 767 or 1108 through 1111 or 1321(5) or 1352(2) or 1353(2) of this Title which is not otherwise specified in this paragraph, or in paragraph (1) of this subsection, if the sentencing court determines by a preponderance of the evidence after it weighs all relevant evidence which bears upon the particular facts and circumstances or details of the commission of the offense and the character and propensities of the offender, that public safety will be enhanced by assigning the offender to Risk Assessment Tier II; or
e.any person described in subparagraph (a)(4)f. of this section.
(3) Risk Assessment Tier I. Any sex offender not otherwise designated to Risk Assessment Tier II or III in accord with paragraphs (e)(1) and (2) of this section shall be designated by the court to Risk Assessment Tier I.
(4) Notwithstanding any provision of this section to the contrary, any sex offender who has previously been convicted of any offense set forth in paragraph (1) or (2) of this subsection and who is thereafter convicted of any second or subsequent offense set forth in paragraph (1) or (2) of this subsection shall be designated to Risk Assessment Tier III.
(5) Notwithstanding any provision in this section to the contrary, any sex offender who has previously been convicted of any offense set forth in subsection (3) of this section and who is thereafter convicted of an offense which would otherwise result in a designation to Risk Assessment Tier I shall be designated to Risk Assessment Tier II if the conviction for the subsequent offense occurred within five years of the previous conviction.
(6) Notwithstanding any provision in this section or in § 4120 of this Title to the contrary, any person who would otherwise be designated as a sex offender pursuant to this section and to § 4120 of this Title may petition the sentencing court for relief from such designation, and from all obligations imposed by this section and § 4120 of this Title if
(a) a. the offense for which the person was convicted was a misdemeanor; and the person has not previously been convicted of a violent felony, or any other offense set forth in paragraph (a)(4)
of this section, or of any offense specified in the laws of another State, the United States or any territory of the United States which is the same as, or equivalent to, such offenses; and
b. the sentencing court determines by a preponderance of the evidence that such person is not likely to pose a threat to public safety if released from the obligations imposed by this section, and by § 4120 of this Title.
Notwithstanding anything in this paragraph to the contrary, no person shall be afforded relief from designation as a sex offender if the victim or victims of any of the offenses for which person was convicted were less than eighteen years old at the time of the crime, unless the person was also less than eighteen years old at the time of the crime in which case the prohibition set forth in this sentence shall not apply. Any person seeking relief from designation as a sex offender under the provisions of this paragraph shall file a petition with the sentencing court prior to sentencing requesting such relief. The petition shall be granted or denied by the sentencing court after it weighs all relevant evidence which bears upon the particular facts and circumstances of the offense, and the character and propensities of the offender.
(7) In any case in which the State seeks to have the offender designated to a Risk Assessment Tier higher than the presumptive tier, the motion required by this subsection shall be filed by the State promptly after the conviction and before sentencing, provided that such a motion shall be unnecessary if any written plea agreement relating to the conviction clearly informs the defendant of the State's intention to request a higher Tier designation.
(f) (1) Any person designated as a sex offender pursuant to this section shall comply with the registration provisions of § 4120 of this Title as follows:
a. for life, if the sex offender is designated to Risk Assessment Tier 111, or if the person is designated to Risk Assessment Tier I or II, and has previously been convicted of any of the offenses specified in subparagraphs (a)(4)a., c., or d. of this section, and the victim of both the previous offense and the instant offense had not yet reached his or her eighteenth birthday at the time of the crime; or
b. for 15 years following the sex offender's release from Level V custody, or for 15 years following the effective date of any sentence to he served at Level IV or below, if the person is designated to Risk Assessment Tier II or I, and is not otherwise required to register for life pursuant to this subsection, except that any time spent at any subsequent period of Level V custody shall not be counted against such 15 year period.
(2) Notwithstanding any provision in this section to the contrary:
a. any sex offender designated to Risk Assessment Tier III may petition to the Superior Court for re-designation to Risk Assessment Tier II if 15 years have elapsed from the last day of any Level IV or V sentence imposed at the time of the original conviction, or from the date of sentencing if no Level IV or V sentence was imposed, and the offender has not been convicted of any crime (other than a motor vehicle offense) during such time. If the offender has been convicted of any subsequent offense (other than a motor vehicle offense) or has been otherwise found to have violated the terms of any probation, parole or conditional release relating to the sentence originally-imposed following the conviction for the underlying sex offense, no petition or re-designation shall be permitted
until 15 years have elapsed from the date of the subsequent conviction or finding of a violation, during which time no additional convictions or findings of violation can have occurred. Notwithstanding any provision of this section or section 4120 of this title to the contrary, any sex offender who is re-designated from Risk Assessment Tier Ill to Risk Assessment Tier II shall continue to comply with the registration and re-registration requirements imposed by § 4120(g) upon Tier III offenders for life. Any re-designation from Risk Assessment Tier III to Risk Assessment Tier II shall not release the offender from the requirement of lifetime registration pursuant to paragraph (f)(1) of this Section.
b. any sex offender designated to Risk Assessment Tier II may petition the Superior Court for re-designation to Risk Assessment Tier 1 if 10 years have elapsed from the last day of any Level IV or V sentence imposed at the time of the original conviction, or from the date of sentencing if no Level IV or V sentence was imposed, and the offender has not been convicted of any crime (other than a motor vehicle offense) during such time. If the offender has been convicted of any subsequent offense (other than a motor vehicle offense) or has been otherwise found to have violated the terms of any probation, parole or conditional release relating to the sentence originally-imposed following the conviction for the underlying sex offense, no petition or re-designation shall be permitted until 10 years have elapsed from the date of the subsequent conviction or finding of violation, during which time no additional convictions or findings of violation can have occurred.
c. any sex offender designated to Risk Assessment Tier I may petition the Superior Court for relief from designation as a sex offender, and from all obligations imposed pursuant to this section and § 4120 of this Title, if 10 years have elapsed from the last day of any Level IV or V sentence imposed at the time of the original conviction, or from the date of sentencing if no Level IV or V sentence was imposed, and if the offender has not been convicted of any crime (other than a motor vehicle offense) during such time. If the offender has been convicted of any subsequent offense (other than a motor vehicle offense) or has been otherwise found to have violated the terms of any probation, parole or conditional release relating to the sentence originally-imposed following the conviction for the underlying sex offense, no petition or re-designation shall be permitted until tO years have elapsed from the date of the subsequent conviction or finding of violation, during which time no additional convictions or findings of violation can have occurred,
d. The Superior Court shall not grant a petition for redesignation or relief filed pursuant to this subsection unless:
(i) the sex offender establishes, by a preponderance of the evidence, that the public safety no longer requires preservation of the original designation; and
(ii) the Court provides the Attorney General with notice of the petition and with a reasonable period of time to be heard upon the matter.
e. When considering a petition for re-designation, the Court shall weigh all the relevant evidence which bears upon the character and propensities of the offender, and the facts and circumstances of his or her prior offenses. The Court may in its discretion hold a hearing on the petition. If the Court grants the petition, it shall promptly enter the information concerning the redesignation into the DELJIS system. Whenever a sex offender is released, discharged or paroled from any Level IV or V or other custodial institution after he or she has completed a Level IV or V sentence imposed following a conviction for any offense specified in paragraph (a)(4) of this section, the agency having custody over the sex offender at the time of the release, discharge or parole shall provide written notice of the release, discharge or parole to the Superintendent of the Delaware State Police, to the chief law enforcement officer having jurisdiction over the offender's intended residence, to the original arresting law enforcement agency and to the Attorney General. Such notice shall be provided not more than 90 days, and not less than 45 days, prior to the offender's release, discharge or parole. The notice shall include, but is not limited to, the sex offender's legal name, and any previously-used names, aliases or nicknames, and the age, gender, race and physical characteristics of the sex offender, a photograph of the offender taken within 90 days of his or her release, along with any other known identifying factors, the person's offense history and his or her place of anticipated future residence and employment. The notice shall also include a statement of any relevant conditions of release, discharge, parole or probation applicable to the offender. Additionally, the form shall identify or describe his or her relationship to the offender. Notwithstanding any law, rule or regulation to the contrary, no person shall be released from any Level V facility unless and until he or she has made a good faith effort to cooperate with the appropriate authorities pursuant to this section except that not such person shall be held at Level V pursuant to this subsection beyond the maximum period of such custody originally ordered by the sentencing court. The notice required by this subsection shall be required whenever the offender is released from any Level V facility to any Level IV facility, and again when such offender is released from the Level IV facility.
() Whenever a sex offender is sentenced to a period of probation at Level III or below, or is required to pay a fine in any amount following a conviction for any offense specified in paragraph (a)(4) of this section, the sentencing court shall provide the notice specified in subsection (g) of this section to the entities specified therein. This subsection shall not apply whenever a sex offender is sentenced to serve a portion of his or her sentence at Level IV or Level V, unless such sentence is suspended in its entirety. Notice pursuant to this subsection shall be provided within 5 business days of sentencing.
(a) Upon receipt of the notice specified in subsections (g) and (h) of this section, the Attorney General shall use any reasonable means to notify the victim(s) of the crime(s) for which the sex offender was convicted of the release or sentencing unless the victim has requested not to be notified. Such notice may include any information provided pursuant to subsections (g) and (h) of this section.
(b) When a sex offender assigned to Risk Assessment Tier II or Ill provides registration information as provided by § 4120 of this Title, the chief law enforcement officer of the local jurisdiction where the offender intends to reside, or the Superintendent of the State Police if no local police agency exists, shall provide public notification as follows:
(1) for sex offenders assigned to Risk Assessment Tier II, notification shall consist of searchable records available to the public, and may also consist of community notification pursuant to paragraph (m)(3) of this Section; or
(2) for sex offenders assigned to Risk Assessment Tier III, notification shall consist of searchable records available to the public as well as community notification.
(c) A complete register of all persons convicted after June 17, 1994 of any of the offenses specified in paragraph (a)(4) of this section, who are thereafter designated sex offenders pursuant to this section, shall be created, maintained and routinely updated and audited by the Delaware State Police. The register shall be immediately accessible by the use of DELJIS computer by all law enforcement agencies. The register shall be searchable by the name of the sex offender and by suitable geographic criteria.
(d) (1) Notwithstanding any law, rule or regulation to the contrary, if after the exercise of due diligence by the sex offender, the offender is unable to secure an anticipated place of future residence, for the purposes of this subsection the offender shall be designated as 'homeless'. The term 'homeless' shall also include any person who anticipates a future place of residence in or at any temporary homeless shelter or other similar place of temporary residence. The fact that a sex offender has secured an anticipated place of future residence at a homeless shelter or other similar place of temporary residence shall be reported by the court or agency having custody of the offender, along with the name and address of the shelter or residence as required by subsections (i) and (j) of this section, but such information shall not be included in any public notification required or permitted by subsection (j) or (k) of this section, except that such information shall be provided to the agency, organization or entity having supervisory or operational authority over such shelter or similar place of temporary residence. Upon securing a temporary or permanent residence, such homeless offender shall comply with the re-registration provisions of this section and § 4120 of this Title.
(m) (1) All elected public officials, public employees and public agencies are immune from civil liability for any discretionary decision to release relevant information unless it is shown that the official, employee or agency acted with gross negligence or in bad faith. The immunity provided under this section applies to the release of relevant information to other employees ,officials or public agencies as well as to the general public.
(2) There shall be no civil legal remedies available as a cause of action against any public official, public employee or public agency for failing to release information as authorized in this section.
(3) Any information contained in searchable records available to the public may be used in any manner by any person or by any public, governmental or private entity, organization or official, or any agent thereof, for any purpose consistent with the enhancement of public safety.
(n) Notwithstanding any law, rule or regulation to the contrary, upon a finding of probable cause that a sex offender has failed to comply with any provision of Section 4120 of this Title, the sex offender may be designated to Risk Assessment Tier III until such time as the agency or court to which the sex offender is obligated to provide notice determines that he or she is again in compliance with Section 4120. In such cases, the agency or court which investigates the alleged non-compliance shall, upon a finding of probable cause that a violation has occurred, immediately notify the Superintendent of the Delaware State Police that a violation of the provisions of § 4120 of this Title has occurred and that, as a result, the sex offender is re-designated to Risk Assessment Tier III until such time as the offender complies fully with the provisions of § 4120. The agency or court shall also immediately notify the Superintendent of the Delaware State Police when the sex offender is again in compliance with Section 4120, at which time he or she will be returned to his or her originally-designated Risk Assessment Tier.
(o) (1) Notwithstanding any provision of this section to the contrary, any sex offender convicted of any offense specified in subparagraph (a)(4)c. of this section shall, upon the registration of such person as set forth in § 4120 of this Title, be designated to a Risk Assessment Tier by the Attorney General. The designation shall be in accord with the provisions of subsection (e) of this section. Written notice of the designation, and the consequences thereof, shall be forwarded to the offender within 10 days of the designation by registered or certified mail, or by any other means creating a reliable record of the receipt of such notice by the offender or of the attempt(s) to provide the offender with such notice. The notice shall also explain the procedures and time limits described in paragraph (2) of this subsection.
(2) Any sex offender designated to a Risk Assessment Tier pursuant to this subsection shall have the right to request that the Superior Court review and finally determine the designation. Any such request shall be made in writing and
(3) delivered to the Prothonotary of the Superior Court within 10 days of the receipt by the offender of the notice described in paragraph (m) of this subsection. The Prothonotary shall promptly forward a copy of the request to the Attorney General. Failure of the offender to deliver the request to the Prothonotary within the specified time limit shall constitute a waiver of the offender's right to Superior Court review of the designation.
(p) Notwithstanding any provision of this section to the contrary, any hearing or judicial determination required by this section may be waived upon mutual agreement of the offender and the State, as set forth in a written plea agreement or other writing signed by the offender.
(q) When a sex offender is designated to a Risk Assessment Tier pursuant to this section, that fact shall be made a part of any written or electronic sentencing order produced by the sentencing court, and shall be entered into the DELJIS system by the sentencing court, The Attorney General shall enter such information into the DELJIS system for any offender designated pursuant to subsection (o) of this section.
(r) Any agency responsible for complying with this section shall he permitted to promulgate reasonable regulations, policies and procedures to implement this statute Such rules, regulations, policies and procedures shall be effective and enforceable upon their adoption by the agency, and shall not be subject to the provisions of Chapter 11 or 101 of Title 29.
(s) The provisions of this section shall be effective not withstanding any km. rule or regulation to the contrary.
(t) Any sex offender who knowingly or recklessly fails to comply with any provision of this section shall be guilty of a class G felony.
(u) Subject to the provisions of § 4122 of this Title, the provisions of this section shall apply to persons convicted after February 28, 1999.
§ 4122. Transition Provisions.
(a) The provisions of § 4121 shall be applicable to any person convicted alter June 21, 1996 but before March 1, 1999.
(b) Notwithstanding any law, rule or regulation to the contrary, as soon after March I, 1999 as is practicable, the Attorney General shall apply the provisions of Section 4121 of this Title those persons identified by subsection(a) of this section, and will redesignate those persons to a Risk Assessment Tier pursuant to Section 4121 Upon the redesignation, the Attorney General will provide notice of such redesignation by registered or certified mail to the person's last registered address, or by any other means which creates a reliable record of the receipt by the offender of such nonce shall or of the attempts to provide the offender with the notice. The notice shall advise the person as to the duties and consequences imposed by law upon persons designated to the particular Risk Assessment Tier, and of the person's right to elect a hearing on the issue of the new Risk Assessment Tier designation. The Attorney General shall have the authority to promulgate reasonable regulations to implement this subsection. Such regulations shall be effective and enforceable upon their adoption, and shall not be subject to the provisions of Chapter 11 and 101 of Title 29.
(c) Any sex offender redesignated to a Risk Assessment Tier pursuant to this section shall have the right to request that the Board of Parole review and finally determine such designation. The request shall be made in writing and delivered to the Board of Parole within 10 days of the receipt by the offender of the notice described in subsection (b) of this section. The Board of Parole shall promptly forward a copy of the request to the Attorney General. Failure of the offender to deliver the request to the Board of Parole within the time limits specified shall constitute a waiver of the offender's right to review.
(d) Following receipt of timely notice by the Board of Parole, it shall hold a hearing to determine the appropriateness of the Attorney General's new Risk Assessment Tier designation. The person and the Attorney General shall have the right to be heard at the hearing. The Board of Parole shall have the authority to promulgate reasonable regulations to implement this subsection, and subsection (c) of this section. Such regulations shall be effective and enforceable upon their adoption, and shall not be subject to the provisions of Chapters II and 101 of Title 29.
(e) Whenever an offender fails to elect a hearing in a timely fashion, the Attorney General shall forward notice of the redesignated Risk Assessment Tier to the Superintendent of the Delaware State Police and to the chief law enforcement officer of the jurisdiction where the person is residing at the time of the redesignation. In the event the person requests a hearing, at the conclusion of the hearing and upon rendering its decision in the matter, the Board of Parole shall forward a notice of the redesignated Risk Assessment Tier to the Superintendent of the Delaware State Police and to the chief law enforcement officer of thejurisdiction where the person is residing at the time of the redesignation. The Superintendent of the Delaware State Police shall enter information pertaining to any redesignation pursuant to this section into the DELJIS computer system.
(f) Upon Risk Assessment Tier redesignation pursuant to this section, the provisions of sections 4120 and 4121 of this Title shall apply. Until redesignation, the provisions of § 4120 and § 4336 of this Title shall remain in full force and effect."
Section 3. Amend Section 4336 of this Title by adding thereto a new subsection, to be designated as subsection (p), to read as follows:
"(p) The provisions of this section shall apply with respect to persons convicted after June 21, 1996 but before March I, 1999."
Section 4. The repeal or amendment of any statute by this Act shall not have the effect of releasing or extinguishing any obligation penalty, forfeiture or liability incurred under such statute, and such statute shall be treated as remaining in full force and effect for all purposes, including sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability. Any action, case, prosecution, trial or other legal proceeding in progress under or pursuant to any statute repealed or amended by this Act shall be preserved and shall not become illegal or terminated, irrespective of the stage of such proceeding. For the purpose of such proceedings, the prior law shall remain in full force and effect.
Section 5. If any provision of this section or amendments hereto, or the application thereof to any person, thing or circumstances is held invalid such invalidity shall not affect the provisions or application of this section or such amendments that can be given effect without the 'mall(' provisions or application, and to this end the provisions of this section and such amendments are declared to be severable.
Section 6. This Act shall become effective on March 1, 1999.