State ex rel. Olivieri v. State

• Decision Date: 21 February 2001
• Docket Number: No. 2000-KH-0172, No. 2000-KP-1767.
• Citation: 779 So.2d 735
• Parties: STATE ex rel. William OLIVIERI v. STATE of Louisiana. State of Louisiana, v. Marvin Hutchinson.
• Court: Louisiana Supreme Court

779 So.2d 735

STATE ex rel. William OLIVIERI v. STATE of Louisiana.

State of Louisiana, v. Marvin Hutchinson.

Nos. 2000-KH-0172, 2000-KP-1767.

Supreme Court of Louisiana.

February 21, 2001.

Robert S. Glass, John W. Reed, William Olivieri, Pro Se, Counsel for Applicant in No. 2000-KH-172.

Richard P. Ieyoub, Attorney General, Paul D. Connick, Jr., District Attorney, Terry B. Boudreaux, Counsel for Respondent in No. 2000-KH-172.

Chanel R. Debose, Packard E. Phillips, Counsel for Applicant in No. 2000-KP-1767.

Richard P. Ieyoub, Attorney General, Jon F. Rowley, District Attorney, Walker H. Drake, Jr., Counsel for Respondent in No. 2000-KP-1767.

KNOLL, Justice¹

These two consolidated criminal cases raise the issue of whether the State may require sex offenders (either probationers or those released from incarceration on parole) to comply with notification provisions the Legislature enacted after they committed their offenses.² We granted these writ applications because there is a conflict among our courts of appeal on this issue and this Court has never addressed the question of whether retroactive application of these statutes, commonly referred to as Louisiana's Megan's Law,³ violates the ex post facto clauses of the federal and state constitutions. We find no ex post facto violation.

FACTS AND PROCEDURAL HISTORY

On May 9, 1990, William Olivieri ("Olivieri") pleaded guilty in Jefferson Parish to forcible rape of a woman who was thirty-six years of age, a violation of LA.REV.STAT. ANN. § 14:42.1. As a result of this guilty plea, the trial judge sentenced Olivieri to twenty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for two years. In 1998 Olivieri, anticipating his scheduled good time release⁴ in August 2000, filed a motion to be relieved of his duty to register as a sex offender, contending that the requirements of LA.REV.STAT. ANN. § 15:542, enacted after his crime, violate ex post facto principles. The district court denied Olivieri's motion, finding that he failed to present clear and convincing evidence as called for in LA.REV.STAT. ANN. § 15:544(B)⁵ to show that he should be relieved from the registration and notification requirements of LA.REV.STAT. ANN. § 15:542. The Court of Appeal, Fifth Circuit, denied his writ application. State ex rel. William Olivieri v. State, 98-0759 (La. App. 5 Cir. 7/29/98). We granted Olivieri's writ application to this Court, State ex rel. William Olivieri v. State, XXXX-XXXX (La.9/5/00), 771 So.2d 78, and stayed enforcement of LA.REV.STAT. ANN. § 15:542 and 15:574.4(H), pending further orders of this Court, State ex rel. William Olivieri v. State, XXXX-XXXX (La.10/31/00), ___ So.2d ___. In early November 2000, Olivieri was granted good time release subject to supervision as though on parole.

On June 4, 1996, Marvin Hutchinson ("Hutchinson") pleaded guilty in St. Bernard Parish to oral sexual battery of a juvenile, a violation of LA.REV.STAT. ANN. § 14:43.3, which was committed in 1990. The district court sentenced Hutchinson to seven years imprisonment at hard labor, suspended, and placed him on five years active probation subject to special conditions, one of which was compliance with the notice requirements of LA.CODE CRIM. PROC. ANN. art. 895(H) added by 1992 La. Acts 962. The probation officer recommended that Hutchinson give notice of his crime to people within a three square block of his residence, publish his photograph in the local newspaper, provide notice and his photograph to the superintendent of the school district, as well as to the superintendent of the park, playground and recreation districts near his residence. On May 20, 1997, Hutchinson filed a motion in opposition to the recommendation of the probation officer that he comply with the notice requirements of LA.CODE CRIM. PROC. ANN. art. 895(H). The trial court denied his motion on May 22, 1997. On June 30, 1997, the trial court stayed the enforcement of its order of compliance with LA.CODE CRIM. PROC. ANN. art. 895(H). On April 14, 1998, Hutchinson also filed a motion to correct an illegal sentence. This motion was denied on June 15, 1998. Hutchinson appealed both decisions of the trial court. The Court of Appeal, Fourth Circuit, affirmed the trial court,⁶ finding that the provisions of LA.CODE CRIM. PROC. ANN. art. 895(H) are not violative of ex post facto principles because they are mere conditions upon which the defendant may be released on probation rather than the imposition of a separate penalty for failure to register as found in LA.REV.STAT. ANN. § 15:542. State v. Hutchinson, 99-0034, 99-0035 (La.App. 4 Cir. 5/17/00), 764 So.2d 1139. We granted Hutchinson's writ application to address the ex post facto question presented. State v. Hutchinson, XXXX-XXXX (La.8/31/00), 766 So.2d 1267.

LOUISIANA'S SEX OFFENDER REGISTRATION & NOTIFICATION STATUTES

Louisiana's Megan's Law is encompassed in three interrelated statutory provisions, LA.REV.STAT. ANN. § 15:542, LA. REV.STAT. ANN. § 15:574.4(H)(2), and LA. CODE CRIM. PROC. ANN. art. 895(H). Each basically⁷ hinges its application on the commission of a sex offense which for the purposes of Louisiana's Megan's Law:

means conviction for the perpetration or attempted perpetration of any provision of R.S. 14:92(A)(7), of Subpart C of Part II, Subpart B of Par IV, or Subpart A(1) or A(4) of Part V, of Chapter 1 of Title 14 of the. Louisiana Revised Statutes of 1950, committed on or after June 18, 1992, or committed prior to June 18, 1992 if the person, as a result of the offense, is under the custody of the Department of Public Safety and Corrections on or after June 18, 1992. A conviction for any offense provided in this definition includes a conviction for the offense under the laws of another state which is equivalent to an offense provided for in this Chapter.

LA.REV.STAT. ANN. § 15:542(E).⁸

Defendants who plead guilty, convicted after trial, and defendants released from confinement: LA.REV.STAT. ANN. § 15:542

First, LA.REV.STAT. ANN. § 15:542, added by 1992 La. Acts 388, provides, in pertinent part, that "[a]ny adult residing in this state who has plead guilty or has been convicted of any sex offense shall register with the sheriff of the person's residence." LA.REV.STAT. ANN. § 15:542(A).⁹ The registrant must inform the officials of "his name, address, and place of employment; the crime for which he was convicted; the date and place of such conviction; any aliases used by the person; and the person's social security number." LA.REV. STAT. ANN. § 15:542(B). Such registration must occur within twenty-one days of establishing residence in this state or thirty days after release from prison, whichever is later. Id. This statute further provides the community notification requirements.¹⁰ A person convicted of a sex offense must "[g]ive notice of the crime for which he was convicted, his name, and address to: (a) At least one person in every residence or business within a one mile radius in a rural area and a three square block area in an urban or suburban area of the address where the defendant will reside upon release." LA.REV.STAT. ANN. § 15:542(B)(1)(a). The offender must also "notify the principal of every school located within a one-mile radius...." LA.REV. STAT. ANN. § 15:542(B)(1)(b). Moreover, the offender must notify "[t]he lessor, landlord, or owner of the residence or the property on which he resides." LA.REV. STAT. ANN. § 15:542(B)(1)(c). Publication must be by mail and in the official journal "on two separate days, ... without cost to the state;" the notice provided in the official journal "shall also include a recent photograph of the offender, or a clear photocopy of a recent photograph of the offender." LA.REV.STAT. ANN. § 15:542(B)(2)(a). The court in which a sex offender was convicted may also require the offender to "give any other notice deemed appropriate ... including but not limited to signs, handbills, bumper stickers, or clothing labeled to that effect." LA.REV.STAT. ANN. § 15:542(B)(3). A person who fails to register as required by this statute "shall, upon first conviction, be fined not more than one thousand dollars or imprisoned for not more than one year, or both." LA.REV.STAT. ANN. § 15:542(F)(1); a second or subsequent conviction for failure to register "shall be sentenced to imprisonment for not more than three years without benefit of parole, probation, or suspension of sentence." LA. REV.STAT. ANN. § 15:542(F)(2).¹¹

Defendants placed on probation: LA. CODE CRIM. PROC. ANN. art. 895(H)

Second, LA.CODE CRIM. PROC. ANN. art. 895(H), added by 1992 La. Acts 962, requires district court judges who place defendants on probation for sex offenses¹² to condition probation on the defendant giving notice similar to that required in LA. REV.STAT. ANN. § 15:542.¹³ In addition, a sex offender "who is the parent, stepparent, or has legal custody and physical custody of the child who is the victim," shall pay for the victim's psychological counseling "to ease the psychological impact upon the child" of the notice requirements to the community. LA.CODE CRIM. PROC. ANN. art. 895(H)(4).¹⁴ Similarly, a person convicted of an offense involving criminal sexual activity must, at his cost, "successfully complete a sex offender treatment program." LA.CODE CRIM. PROC. ANN. art. 895(J).¹⁵

Parolees: LA.REV.STAT. ANN. § 15:574.4(H)(2)

Finally, LA.REV.STAT. ANN. § 15:574.4(H)(2), also added by 1992 La. Acts 962, makes it mandatory for the Board of Parole to impose special conditions of parole relating to community notice on the early release of sex offenders from the penitentiary.¹⁶ If the victim was under eighteen years of age at the time of the commission of the offense, the Board must condition parole on the defendant giving notice similar to that required in LA.REV.STAT. ANN. § 15:542.¹⁷ In addition, a sex offender "who is the parent, stepparent, or has legal custody and...