Vann v. State

• Decision Date: 20 December 2013
• Docket Number: CR–12–0037.
• Citation: 143 So.3d 850
• Parties: Jay F. VANN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

143 So.3d 850

Jay F. VANN

v.STATE of Alabama.

CR–12–0037.

Court of Criminal Appeals of Alabama.

Dec. 20, 2013.

Kira Fonteneau, Birmingham, for appellant.

Luther Strange, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.

BURKE, Judge.

Jay F. Vann appeals his guilty-plea conviction for failing to comply with the residence restrictions set forth in § 15–20A–11(a), Ala.Code 1975, which is part of the Alabama Sex Offender Registration and Community Notification Act (“CNA”), § 15–20A–1 et seq., Ala.Code 1975. Based on that conviction, Vann was sentenced to 10 years in prison. However, Vann was given credit for time spent incarcerated in the county jail awaiting trial, and the remainder of his sentence was suspended. He was placed on unsupervised probation for two years.

Vann is an adult sex offender who is subject to the requirements of the CNA. On September 2, 2011, Vann was released from the Jefferson County Jail, and he registered a residence in Birmingham that was not in compliance with the residence restrictions found in § 15–20A–11(a) because the residence was within 2,000 feet of the property on which a school was located. At the time of his release, Vann was informed that he had seven days from his release to comply with the residence restrictions found in § 15–20A–11(a) and that if he failed to comply a warrant would be issued for his arrest. Vann failed to comply with the residence restrictions found in § 15–20A–11(a), and a warrant was issued for his arrest on September 16, 2011.

On March 9, 2012, the Jefferson County Grand Jury indicted Vann, as follows:

“The grand jury of said county charge that, before the finding of this indictment, Jay F. Vann, whose name is to the grand jury otherwise unknown, a sex offender, heretofore convicted in the Court of Common Pleas in Cuyahoga County, Ohio of the offense of Sexual Battery, and subject to the Alabama Sex Offender Registration and Community Notification Act, having been released from incarceration or conviction, if not incarcerated, pursuant to Section 10(a)(1) of said Act, did knowingly and willfully fail or refuse to comply with the residence restrictions set forth in Section 11(a) of said Act, within 7 days of release or conviction, to-wit; the residence or living accommodation of said sex offender at ... 1st Avenue South, Birmingham, Alabama 35106, is within 2000 feet of the property upon which a school or child care facility is located, ... in violation of Section 10(2), Act No. 2011–640, Code of Alabama, against the peace and dignity of the State of Alabama.”

Before Vann entered his guilty plea, he moved the trial court to dismiss the indictment against him. In that motion, Vann argued that § 15–20A–10, Ala.Code 1975, was unconstitutional on its face and that it was unconstitutional as applied to him and other indigent, homeless sex offenders. Specifically, Vann argued that the statute does not provide an exception or instructions for people who are unable to secure housing due to unavailability, that the statute is vague in that it places an impermissible amount of discretion within the hands of law enforcement and encourages selective enforcement of its requirements, and that the statute does not make any provision for indigence or require the State to provide indigent sex offenders any logistical or financial assistance in locating a residence if they are financially unable to do so. Vann contended that the statute violated his constitutional rights to due process, to equal protection, and to be free from cruel and unusual punishment. Vann also argued that the CNA coupled with other laws operate to banish individuals in violation of Art. I, § 30, Ala. Const.1901.

The trial court conducted an evidentiary hearing concerning Vann's motion to dismiss. Norman Askew, an employee of the designated community-corrections program in Jefferson County, testified that on September 9, 2011, he gave Vann information about a place in Florida where he could possibly reside. Askew further testified that it is very difficult to find a place for sex offenders to reside in Jefferson County. Similarly, Dana McCreless, who was also an employee of the designated community-corrections program in Jefferson County, testified that it is very difficult to find a place for sex offenders to reside in or around Jefferson County.

Jason Orr, a detective for the sex-offender unit of the Jefferson County Sheriff's Department, testified that Vann did not contact the sheriff's department after his release. Detective Orr stated that the sex-offender unit is open for registrations Monday through Thursday. Detective Orr further testified that his unit has “a lot of people that have compliant homeless addresses” and that there are places in Jefferson County where homeless sex offenders can live that are compliant with the CNA. (Supp. R. 34.)

Vann testified that he had been shot in the head five times and that he has grand mal seizures, poor vision in one eye, and asthma. According to Vann, his asthma is triggered by stress and by environmental factors such as “pollen, urine, [and] feces.” (Supp. R. 69.) Vann also stated that an asthma attack can trigger a seizure. Vann testified that, due to his health problems, he received Social Security disability benefits. However, according to Vann, those benefits were not paid while he was incarcerated. Vann testified that he had “very little” money when he was released from jail on September 2, 2011. (Supp. R. 70.) Vann stated that he looked for a place to live as soon as he was released from jail. According to Vann, he visited three charitable organizations that help homeless people, but he could not reside at any of those places because he is a sex offender. Vann testified that, although he did not have a compliant residence to register, he attempted to contact the sex-offender unit on Friday, September 9, 2011; however, the sex-offender unit was closed for registrations that day. Vann admitted that he did not attempt to contact the sex-offender unit after that day.

After conducting the hearing, the trial court denied Vann's motion to dismiss. During the guilty-plea proceeding, the State offered the following factual basis for Vann's guilty plea:

“[Vann] having previously been convicted of sexual battery in the Court of Common Pleas in Count 2 in Cuyahoga County, Ohio, therefore, being subject to the Alabama Sex Offender Registration and Notification Act between the dates of September 2nd and September 15th, 2011, in the Birmingham Division of Jefferson County this violated that act by violating the residency requirements which would prohibit him from living within 2,000 feet of a school....”

(R. 9.)

Analysis

On appeal, Vann challenges the constitutionality of certain parts of the CNA. In considering whether a legislative act is unconstitutional, we are guided by the following principles:

“This Court ‘ “should be very reluctant to hold any act unconstitutional.” ’ Ex parte D.W., 835 So.2d 186, 189 (Ala.2002) (quoting Ex parte Boyd, 796 So.2d 1092, 1094 (Ala.2001)). ‘[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.’ Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944) (emphasis added). This is so, because ‘it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law.’ 246 Ala. at 9, 18 So.2d at 815 (emphasis added).”

McInnish v. Riley, 925 So.2d 174, 178 (Ala.2005).

Section 15–20A–10, Ala.Code 1975, provides:

“(a)(1) Immediately upon release from incarceration, or immediately upon conviction if the adult sex offender is not incarcerated, the adult sex offender shall appear in person and register all required registration information with local law enforcement in each county in which the adult sex offender resides or intends to reside, accepts or intends to accept employment, and begins or intends to begin school attendance.

“(2) An adult sex offender who registers pursuant to subdivision (1) shall have seven days from release to comply with the residence restrictions pursuant to subsection (a) of Section 15–20A–11.

“(b) Immediately upon establishing a new residence, accepting employment, or beginning school attendance, the adult sex offender shall appear in person to register with local law enforcement in each county in which the adult sex offender establishes a residence, accepts employment, or begins school attendance.

“(c)(1) Immediately upon transferring or terminating any residence, employment, or school attendance, the adult sex offender shall appear in person to notify local law enforcement in each county in which the adult sex offender is transferring or terminating residence, employment, or school attendance.

“(2) Whenever a sex offender transfers his or her residence, as provided in subdivision (1) from one county to another county, the sheriff of the county from which the sex offender is transferring his or her residence shall immediately notify local law enforcement in the county in which the sex offender intends to reside. If a sex offender transfers his or her residence, as provided in subdivision (1) from one county to another jurisdiction, the sheriff of the county from which the sex offender is transferring his or her residence shall immediately notify the chief law enforcement agency in the jurisdiction in which the sex offender intends to reside.

“(d) Immediately upon any name change, the adult sex offender shall immediately appear in person to update the information with local law enforcement in each county in which the adult sex offender is required to register.

“(e) Upon changing any required registration information the adult sex offender shall immediately appear in...