State v. Trosclair

• Decision Date: 08 May 2012
• Docket Number: No. 2011–KA–2302.,2011–KA–2302.
• Citation: 89 So.3d 340
• Parties: STATE of Louisiana v. Rudy TROSCLAIR.
• Court: Louisiana Supreme Court

89 So.3d 340

STATE of Louisiana

v.Rudy TROSCLAIR.

No. 2011–KA–2302.

Supreme Court of Louisiana.

May 8, 2012.

James D. Caldwell, Attorney General, Paul D. Connick, Jr., District Attorney, Terry Michael Boudreaux, Assistant District Attorney, Emma J. DeVillier, Robert Chase Abendroth, Assistant Attorneys General, for Appellant.

Catherine Lynn Bartholomew, New Orleans, LA, for Appellee.

KNOLL, Justice.

[2011-2302 (La. 1]This case comes to us as a criminal appeal concerning the retroactive application of an amendment extending supervision for sex offenders when the victim is under the age of thirteen years. Specifically, whether the amendment to La.Rev.Stat. § 15:561.2, which extended the supervision period after release from custody for a sex offender whose victim was under thirteen years of age from five years to life, violates the Ex Post Facto Clauses of both the United States and Louisiana Constitutions.

Defendant Rudy Trosclair pled guilty to sexual battery of a child under thirteen years of age, for which he was sentenced to serve thirty months imprisonment at hard labor “without benefit.” Shortly after his incarceration, La.Rev.Stat. § 15:561.2 was amended to provide for lifetime supervision. Upon his release from custody, defendant was placed under lifelong supervision in accordance with the amended provision. Defendant then filed a motion in the district court challenging the retroactive application of the amendment as a violation of the Ex Post Facto Clause. The district court denied the motion, but the court of appeal granted writs and found the amendment increased the penalty for the offense and could, therefore, not be applied retroactively to the defendant. The [2011-2302 (La. 2]State appealed to this Court in accordance with La. Const. art. V, § 5(D). For the following reasons, we find, after first converting this appeal to an application for supervisory writs, the amended supervised release provisions are predominantly nonpunitive in both intent and effect, and therefore, their retroactive application to this defendant does not offend the Ex Post Facto Clause. Accordingly, we grant the State's application and reverse the judgment of the court of appeal.

FACTS AND PROCEDURAL HISTORY

On October 16, 2006, the State alleged in a bill of information that defendant, age twenty-seven, committed sexual battery by fondling the genitals of the child victim at some point between October 7, 2002, and May 15, 2006, when the victim was between four and seven years of age. When interviewed by police, defendant confessed to touching and rubbing the child's vagina while she slept at his home. On May 19, 2008, defendant pled guilty to sexual battery in violation of La.Rev.Stat. § 14:43.1. The district court advised defendant of the sex offender registration and notification requirements and sentenced him pursuant to the plea agreement to serve thirty months imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.¹ At that time, La.Rev.Stat. § 15:561.2 required any person convicted of a sex offense on or after August 15, 2006, when the victim was under thirteen years of age, be placed under supervision for five years after release from custody. Defendant was released after serving the full term of his sentence on November 24, 2010, by which time La.Rev.Stat. § 15:561.2 had been amended by 2008 La. Acts 672 to require lifelong supervision.

On January 10, 2011, defendant was placed under lifelong supervision in accord with the amended provision after signing a “Sex Offender, Sexually Violent [2011-2302 (La. 3]Predator, or Child Predator Contract,” acknowledging his understanding of the notification, registration, and supervision requirements applicable to him. Three days later, on January 13, 2011, defendant filed a motion to terminate supervision and seeking permission to have contact with his biological children, which motion the district court denied after a hearing. ² On January 25, 2011, defendant filed a “Motion to Declare La. R.S. 15:561 Unconstitutional,” challenging the retroactive application of the amendment as a violation of the Ex Post Facto Clause.

In his motion, defendant contended that placing him on lifetime supervision violated the Ex Post Facto Clause because it imposed a greater punishment than that authorized at the time he pled guilty. Defendant further contended the amended provision was vague and overbroad. At the February 23, 2011 motion hearing, defendant also argued the condition of supervision prohibiting contact with children had effectively terminated his parental rights without a hearing, which, defendant claimed, violated the Due Process Clause. The district court denied the motion and indicated it would not address the Due Process claim at that time because it was not asserted in the motion.

The Court of Appeal, Fifth Circuit granted defendant's application for supervisory writ and vacated the lower court's ruling, holding the retroactivity provision of La.Rev.Stat. § 15:561 et seq. with reference to supervised release was unconstitutional as applied to defendant for a period in excess of five years. State v. Trosclair, 11–0312, p. 9 (La.App. 5 Cir. 6/20/11) (unpub'd). In reaching its conclusion, the appellate court paid close attention to the United States Supreme Court's decision in [2011-2302 (La. 4]Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 2003), which held the Alaska Sex Offender Registration Act was nonpunitive, and therefore, its retroactive application did not violate the Ex Post Facto Clause. In particular, the appellate court focused on the high court's rejection of the Ninth Circuit's determination that Alaska's registration system “is parallel to probation or supervised release in terms of the restraint imposed” and the implication “that had it been considering probation and supervised release, the outcome might have been different.” Trosclair, 11–0312 at p. 5.

Contrasting the freedoms of a registrant in Alaska with the constraints imposed on the supervised in Louisiana, the appellate court reasoned:

Unlike the Alaskan registration statute which allows offenders to live, move, and work as they wish, with no supervision, the provisions of La. R.S. 15:561.5 gives the supervised release officer the authority to make decisions for the offender. For example, La. R.S. 15:561.5(15) provides that the offender must “[s]ubmit a residence plan for approval by the supervised release officer.” (emphasis added). This language, which means that the parole officer has the authority to reject the offender's proposed residence plan, is unlike the Alaskan statute, which allows offenders to move freely without supervision.

In his application for supervisory review, [defendant] points to several other provisions of La. R.S. 15:561 et seq. which he contends places an undue burden on him. He points out that:

[t]he law requires a minimum of once a month meetings with a probation or parole officer. La. R.S. 15:561.5(2). It subjects the offender to unannounced periodic visits by the officer. La. R.S. 15:561.5(3). It allows for the requirement of a curfew. La. R.S. 15:561.5(4). It provides that the offender is not allowed to use or possess any alcoholic beverages or legal ‘sexually explicit material.’ La. R.S. 15:561.5(5)(6). It limits and restricts the adult persons with whom an offender may associate. La. R.S. 15:561(8). It requires the offender to allow the department to monitor his electronic communications and internet access. La. R.S. 15:561(16). Finally, it provides additional criminal penalties for failure to comply with supervised release. La. R.S. 15:561.7.

Though the majority of the conditions [defendant] cites were enacted at the time he was convicted, he was not subject to those conditions for his lifetime.

[2011-2302 (La. 5]Trosclair, 11–0312 at pp. 6–7. The court then concluded the modification of the period of supervised release from a de minimis period of five years to lifetime supervision increased the penalty by which defendant's crime was punishable so that the retroactive application of these provisions to this defendant would violate the constitutional prohibition against ex post facto legislation. Trosclair, 11–0312 at 9.³

The State then sought and was granted a direct appeal to this Court, which appeal was lodged on October 19, 2011.

DISCUSSION

As an initial matter, the State describes the present case as a facial constitutional challenge and characterizes the ruling of the court below as a declaration of the statute's unconstitutionality. Defendant, however, disagrees and argues the appellate court did not declare any portion of La.Rev.Stat. §§ 15:561 et seq. unconstitutional; instead, it issued a narrow ruling declaring the amendment, which extended the period of supervision from five years to life, could not be retroactively applied to him because such application would violate the Ex Post Facto Clause.

Defendant is correct that a law was not declared unconstitutional, other than as applied retroactively to him. We find the district court erred in granting the State's motion to appeal directly to this Court pursuant to La. Const. art. V, § 5(D)(1). See, e.g., State in the Interest of A.S., 97–0806 (La.9/26/97), 701 So.2d 965 (per curiam). Consequently, review of the court of appeal's ruling can occur only by way of this Court's discretionary supervisory authority pursuant to La. Const. art. V, § 5(A). Therefore, to reach the merits of an issue that directly [2011-2302 (La. 6]implicates the functioning and breadth of a complex regulatory scheme, which the Legislature itself has described as “one of the most extensive sex offender registration and notification provisions in the United States,” La.Rev.Stat. § 15:561(A), we re-designate the present appeal as an application for supervisory writ and hereby grant certiorari.

Turning now to the merits, we begin our discussion with an overview of the regulatory...