Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF LAWRENCE COUNTY Honorable Jack Al
Goodman, Circuit Judge
REVERSED AND REMANDED WITH DIRECTIONS
STEFFEN RAHMEYER, P.J.
Missouri State Highway Patrol ("MSHP") appeals from
the trial court's grant of Naresh Khatri's petition
seeking the removal of his name from Missouri's sexual
offender registry under section 589.400.3(4) and .7, RSMo
Cum.Supp. 2017. Once again, we are presented with an appeal
from a judgment pursuant to section 589.400.7, which allows
for removal from the Missouri sexual offender registry. Once
again, despite the legislative intent that there be a method
to be removed from the registry, we cannot affirm the
judgment because of the requirement under Missouri's Sex
Offender Registration Act ("SORA") that a person
must register on the Missouri registry if the person has been
required to register at any time on the federal registry. We
must reverse and remand with directions.
facts are not contested. On February 14, 2007, Naresh Khatri
("Khatri") pled guilty to promoting prostitution in
the third degree, and was sentenced to incarceration for two
years with execution of that sentence suspended and Khatri
placed on supervised probation for five years. The conviction
caused Khatri to be required to register under the federal
Sex Offender Registration and Notification Act
("SORNA") as a Tier I sex offender. Khatri's
requirement to register under SORNA expired on or about
February 14, 2017, because he qualified for a clean record
reduction that reduced his mandatory registration period to
ten years. Khatri also was required to register under SORA
because (1) he had been convicted of promoting prostitution
in the third degree under section 589.400.1(2) and .2, and
(2) he "has been or is required to register under . . .
federal . . . law" under section 589.400.1(7) and .2.
February 17, 2017, Khatri filed a petition seeking the
removal of his name from Missouri's sexual offender
registry under an exception to Missouri's lifetime
registration requirements for "[a]ny person currently on
the sexual offender registry for having been convicted of . .
. committing . . . promoting prosecution in the third
degree" "after ten years have passed from the date
he . . . was required to register." Section 589.400.3(4)
an evidentiary hearing, the trial court entered judgment in
favor Khatri finding that "[b]ecause [Khatri] has
satisfied all Missouri and federal requirements for removal
from the sex offender registry and he is not a threat or
potential threat to public safety, he is eligible to be, and
should be, removed," and ordered that Khatri's
"name shall be removed from the [registry] pursuant to
single point, the MSHP asserts that the trial court
misapplied the law in ordering that Khatri's name be
removed from Missouri's sexual offender registry under
section 589.400.3(4) and .7 because Khatri is not currently
on the registry solely for having been convicted of
committing promoting prosecution in the third degree, but
also because he "has been . . . required to
register" under federal law under section 589.400.1(7)
and .2 with the result that Khatri is not eligible to have
his name removed from the registry under section 589.400.3(4)
decision in Kennedy v. State, 411 S.W.3d 873
(Mo.App. S.D. 2013), controls the resolution of this appeal.
In Kennedy, the trial court granted Kennedy's
petition to have his name removed from Missouri's sexual
offender registry in connection with two convictions for
statutory rape in the second degree under section
589.400.3(4) and .7. Id. at 874-75. Although not
specifically addressed in the opinion, it appears that
Kennedy's requirement to register under federal law for
these two convictions had expired. Id. at 878 n.6
("Both parties concede that Kennedy was required to
register as a sex offender under federal law for his
convictions of second-degree statutory rape . . . . In fact,
Kennedy specifically acknowledged 'since [he] was
previously required to register as a sex offender under
federal law for his convictions of statutory rape in the
second degree, he is required to register as a sex offender
[under section] 589.400.1(7).'"). In reversing the
trial court, we stated:
The Supreme Court of Missouri has addressed the interplay
between the state registration requirement found in section
589.400.1(7) of SORA, and the federal registration
requirement in SORNA found in 42 U.S.C. section 16913(a).
See Doe v. Keathley, 290 S.W.3d 719 (Mo. banc 2009);
and Doe v. Toelke, 389 S.W.3d 165 (Mo. banc 2012).
Section 589.400.1(7) of SORA requires that a Missouri
resident register as a sex offender if he or she
"has been or is required to register ... under
... federal ... law." (Emphasis added). . . .
In Keathley and Toelke, the Missouri
Supreme Court held as follows: If a Missouri resident is a
"sex offender" pursuant to the terms of SORNA,
SORNA imposes upon such a person an "independent,
federally mandated registration requirement" which
triggers the individual's duty to register in Missouri
pursuant to section 589.400.1(7) of SORA. Toelke,
389 S.W.3d at 167; Keathley, 290 S.W.3d at 720. . .
. When the state registration requirement is based on an
independent federal registration requirement, the state
registration requirement does not arise from the enactment of
a state law and is not based solely on the fact of a past
conviction. Id.; Toelke, 389 S.W.3d at 167.
Instead, the state registration requirement in section
589.400.1(7) of SORA is based on the person's present
status as a sex offender who "has been or is
required" to register pursuant to SORNA.
Toelke, 389 S.W.3d at 167; section 589.400.1(7).
Therefore, if an individual has been required to register
pursuant to SORNA, he or she is presently required to
register pursuant to SORA. Toelke, 389 S.W.3d at
Grieshaber v. Fitch, 409 S.W.3d 435, 438-39 (Mo.App.
We are constitutionally bound to follow Keathley and
Toelke because they are the most recent decisions of
the Supreme Court of Missouri on this issue. State Farm
Mut. Auto. Ins. Co. v. Zumwalt, 825 S.W.2d 906, 908
(Mo.App. S.D. 1992). Under Keathley and
Toelke, Kennedy had an independent federal
obligation to register as a sex offender. Therefore,
because Kennedy "'has been or is required' to
register pursuant to SORNA[, ] . . . [he] is
presently required to register pursuant to
SORA." Grieshaber, 409 S.W.3d at 438-39
This conclusion requires us to find that Kennedy is not
eligible for removal from Missouri's sex offender
registry pursuant to section 589.400.7. Kennedy is not on the
Missouri sex offender registry solely because of his past
guilty pleas; rather, he is on the registry based on the
State registration requirement found in section 589.400.1(7)
(a sex offender who "has been or is required" to
register pursuant to SORNA). Id. Under section
589.400.7, only those individuals "currently on the
sexual offender registry for having been convicted of,
found guilty of, or having pleaded guilty or nolo contendere
to" the listed offenses may petition for the
removal of his or her name from the sexual offender registry.
Kennedy is on the registry because of his status as a sex
offender who "has been or is required" to register
pursuant to SORNA. Id; § 589.400.1(7).
Therefore, Kennedy is not eligible for removal from
Missouri's Sex Offender Registry pursuant to section
589.400.7 of SORA, and the trial court misapplied the law by
ordering removal of his name.
Id. at 877-78 (emphasis in the original; footnote
omitted). Our reasoning in this appeal involving the
exception to Missouri's lifetime registration
requirements under section 589.400.3(4) and .7 is supported
by the reasoning of the Eastern District in James v.Missouri State Highway Patrol, 505 S.W.3d 378
(Mo.App. E.D. 2016), and the Western District in
Wilkerson v. State, 533 S.W.3d 755 (Mo.App. W.D.
2017). Both James and Wilkerson involved
the exception to Missouri's lifetime registration
requirements under ...