Jones v. State

• Decision Date: 18 December 2007
• Docket Number: No. 06-243.,06-243.
• Citation: 2007 WY 201,173 P.3d 379
• Parties: Raymond Paul JONES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

173 P.3d 379

2007 WY 201

Raymond Paul JONES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 06-243.

Supreme Court of Wyoming.

December 18, 2007.

Representing Appellant: Tina Kerin, Appellate Counsel; and David E. Westling, Senior Appellate Counsel, Wyoming Public Defender Program, Cheyenne, Wyoming. Argument by Mr. Westling.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Dana J. Lent, Assistant Attorney General. Argument by Ms. Lent.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

HILL, Justice.

[¶ 1] Appellant, Raymond Paul Jones (Jones), was charged with seven counts of violating Wyo. Stat. Ann. § 6-4-303(a)(ii)(B) (LexisNexis 2007) ("sexual exploitation of children"). Jones entered into a conditional plea agreement with the State wherein he pled guilty to two of the seven counts. The conditions associated with that plea included one permitting Jones to challenge the constitutionality of the statute under which he was convicted, on the basis that it was vague and overbroad and brought within its reach material protected by the First Amendment. We will affirm.

ISSUES

[¶ 2] Jones raises this issue:

Wyo. Stat. Ann. § 6-4-303(a)(ii)(B) is unconstitutional on its face and in its application toward [Jones].

The State articulates the issue as follows:

Is Wyo. Stat. Ann. § 6-4-303(a)(ii)(B) vague on its face or in its application to [Jones's] case, and did the district court err in ruling that it was not unconstitutionally overbroad?

In his reply brief, Jones argues:

I. Did [Jones's] provision of a factual basis for his conditional guilty plea constitute an admission which bars his challenge to the constitutionality of Wyo. Stat. Ann. § 6-4-303(a)(ii)(B)?

FACTS AND PROCEEDINGS

[¶ 3] Although the facts are not of any real significant consequence to the resolution of the issue raised in this case, we will provide a few details for the purpose of providing context for the matters we will consider in this opinion. Jones was looking for a place to reside and a friend invited him to stay at his house and share the rent. That relationship deteriorated and the co-tenant moved Jones's possessions out of the house and into the garage. During that process, the co-tenant found what he perceived to be child pornography and so he called the police to investigate.

[¶ 4] After the police had arrested Jones on unrelated, unserved arrest warrants, they obtained consent from Jones to search his rented room. Later, the police also obtained a search warrant to continue and to expand that search. During the search of Jones's property, the police found additional pornographic material. That investigation led to the charges at issue here.

[¶ 5] Initially, Jones entered a plea of not guilty. At a change of plea hearing held on July 7, 2006, Jones opted to change his plea to guilty on Counts I and VII and all other counts would be dismissed. There was no agreement as to sentence, other than that the sentences would be concurrent. In addition, it was agreed that no further charges would be brought against Jones in connection with this matter. Finally, it was noted that "... oh, and that it's a conditional plea allowing the defense to appeal the issues related to the search and seizure, constitutionality of the statute."

STANDARD OF REVIEW

[¶ 6] Jones's challenge to the constitutionality of the statute in dispute presents a question of law that we review de novo. Rutti v. State, 2004 WY 133, ¶ 9, 100 P.3d 394, 400 (Wyo.2004). Although Jones admitted to the gravamen of the charges against him, he reserved the right to appeal only the constitutionality of the statute at issue as it pertains to persons "virtually indistinguishable from a child." He asserts that that language is both "vague" and "overbroad" as those two terms are used in First Amendment jurisprudence.

[¶ 7] We will hereinafter set out verbatim our discussion of the applicable standard of review from our Rutti decision, in order that our jurisprudence in this regard might remain consistent and clear. In addition, that material will set the stage for a discussion of amendments that the Wyoming Legislature made to our sexual exploitation of children statute, after Rutti was published, and which we deemed prudent at the time we decided Rutti. The amendments made by the Wyoming Legislature are similar to amendments made to the parallel federal statute, which has also come under close scrutiny for its alleged violation of the First Amendment. In light of the amendments to the Wyoming statutes, in the instant case, the district court held that Wyoming's revised statute was not unconstitutionally vague or overbroad, although this matter was not very well developed in the trial court.

When analyzing an overbreadth challenge under the First Amendment:

The general rule is that one who alleges unconstitutionality bears a heavy burden and must clearly and exactly show the unconstitutionality beyond any reasonable doubt. Pauling v. Pauling, 837 P.2d 1073, 1076 (Wyo.1992). However, that rule does not apply where a citizen's fundamental constitutional right, such as free speech, is involved. The strong presumptions in favor of constitutionality are inverted, the burden then is on the governmental entity to justify the validity of the ordinance, and this Court has a duty to declare legislative enactments invalid if they transgress that constitutional provision.

Miller v. City of Laramie, 880 P.2d 594, 597 (Wyo.1994). "The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S.Ct. 1389, 1404, 152 L.Ed.2d 403 (2002). A statute is unconstitutional on its face if it prohibits a substantial amount of protected expression. Id. at 244, 122 S.Ct. at 1398-99. If a statute is facially overbroad in violation of the First Amendment it cannot be enforced in any part. Because of the severity of the remedy, success of a First Amendment challenge to the facial overbreadth of a statute depends upon a finding that the statute's application to protected speech is substantial:

The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges. See Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). The showing that a law punishes a "substantial" amount of protected free speech, "judged in relation to the statute's plainly legitimate sweep," Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), suffices to invalidate all enforcement of that law, "until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression," id., at 613, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830. See also Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003); New York v. Ferber, 458 U.S. 747, 769, n. 24, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Dombrowski v. Pfister, 380 U.S. 479, 491, and n. 7, 497, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or "chill" constitutionally protected speech — especially when the overbroad statute imposes criminal sanctions. See Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Bates v. State Bar of Ariz., 433 U.S. 350, 380, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech, Dombrowski, supra, at 486-487, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 — harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas. Overbreadth adjudication, by suspending all enforcement of an overinclusive law, reduces these social costs caused by the withholding of protected speech.

As we noted in Broadrick, however, there comes a point at which the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all enforcement of that law — particularly a law that reflects "legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct." 413 U.S. at 615, 93 S.Ct. 2908, 37 L.Ed.2d 830. For there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct. To ensure that these costs do not swallow the social benefits of declaring a law "overbroad," we have insisted that a law's application to protected speech be "substantial," not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications, ibid., before applying the "strong medicine" of overbreadth invalidation, id., at 613, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830.

Virginia v. Hicks, 539 U.S. 113, 118-120, 123 S.Ct. 2191, 2196-97, 156 L.Ed.2d 148 (2003).

Rutti's sole argument is that § 6-4-303 is unconstitutionally overbroad due to the application of the decision by the United States Supreme Court in Ashcroft v. Free Speech Coalition. In Free Speech Coalition, the Supreme Court struck down two definitional terms of child pornography, sections 18 U.S.C. § 2256(8)(B) & (D), as overbroad and in violation of the First Amendment. 535 U.S. at 256, 258, 122 S.Ct. at 1405, 1406. Essentially, the Supreme Court ruled that child pornography can only be...