Opinion
2013 KA 0098
2013-09-13
STATE OF LOUISIANA v. LARRY COVINGTON
Scott M. Perilloux District Attorney Bradley Berner Patricia Amos Assistant District Attorneys Amite, Louisiana Counsel for Appellee State of Louisiana Prentice L. White Baton Rouge, Louisiana Counsel for Defendant/Appellant Larry Covington
NOT DESIGNATED FOR PUBLICATON
On Appeal from the Twenty-First Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
No. 1200991
Honorable M. Douglas Hughes, Judge Presiding
Scott M. Perilloux
District Attorney
Bradley Berner
Patricia Amos
Assistant District Attorneys
Amite, Louisiana
Counsel for Appellee
State of Louisiana
Prentice L. White
Baton Rouge, Louisiana
Counsel for Defendant/Appellant
Larry Covington
McCLENDON, J .
Defendant, Larry Covington, was charged by bill of information with failure to register and notify as a sex offender, a violation of LSA-R.S. 15:542.1A(2)(a). See also LSA-R.S. 15:542.i.4A(l). Defendant entered a plea of not guilty, waived his right to a trial by jury, and proceeded to a bench trial. After the bench trial, defendant was found guilty of attempted failure to register and notify as a sex offender. He was sentenced to one year imprisonment at hard labor. Defendant now appeals, assigning error to the trial court's denial of his motion to quash the bill of information. For the following reasons, we affirm the conviction and sentence.
Both the minute entry and the State of Louisiana Uniform Commitment Order, which are part of the record, indicate that the sentence was at hard labor.
STATEMENT OF FACTS
On September 23, 1985, defendant pled guilty to forcible rape in Jefferson Parish and was sentenced to five years imprisonment at hard labor. According to defendant's trial testimony, he was released from prison on that offense in 1988. In 1990, he was convicted of armed robbery and sentenced to seventeen years imprisonment at hard labor. In January of 2011, defendant was released from parole for the armed robbery offense, and Deputy Rick Reynolds (a Sex Offender Registration and Compliance officer of the Tangipahoa Parish Sheriff's Office) received notification from the Department of Public Safety and Corrections regarding defendant's release and status as a sex offender required to register. On January 25, 2011, defendant met with Deputy Reynolds and executed a sex offender registration packet that included a form signed by defendant indicating that the registration process was fully explained to him. Deputy Reynolds testified that he read and explained the information to defendant. The documents indicated that defendant was required to return necessary information showing compliance by February 14, 2011. On April 21, 2011, a warrant was issued for defendant's arrest based on his failure to comply with registration requirements as advised.
Based on defendant's trial testimony, in addition to serving jail time for the forcible rape and armed robbery convictions, defendant also served periods of time imprisoned due to parole violations and revocation. Defendant indicated that from the date of his incarceration in 1985 to his release from parole in January of 2011, he was either in prison or out on parole.
ASSIGNMENT OF ERROR NUMBER ONE
In the sole assignment of error, defendant acknowledges signing a document presented to him by Deputy Reynolds informing him of sex offender registration requirements. However, defendant contends that he reluctantly signed the document after being informed that he had to register or risk further imprisonment, but maintained that he was not required to register. Defendant specifically argues that the registration requirements do not apply to him since the statute mandating registration was not in effect at the time of his 1985 conviction of forcible rape. Noting that he was previously informed that he would not be prosecuted for failure to register as a sex offender, defendant argues that he did not have the criminal intent to commit the instant offense. Defendant further argues that the bill of information was defective in that the essential facts necessary for the accused to understand the charge against him and to prepare a defense were lacking. Defendant specifically contends that the bill of information needed to include the actual conviction and the date of the conviction that gave rise to him being classified as a sex offender. Defendant notes that LSA-R.S. 15:542 does not require registration for some sex-related offenses. Defendant contends that the State's response to the Bill of Particulars seems to suggest that his forcible rape conviction automatically burdened him with a lifetime registration requirement even though there was no retroactive language in the statute at the time of its enactment. Defendant concludes that had the necessary information been included in the bill of information, the trial court would have discerned that the sex offender registration requirements are not applicable in this case and granted the motion to quash.
The motion to quash is essentially a mechanism by which to raise pretrial pleas or defenses, i.e., those matters that do not go to the merits of the charge. State v. Beauchamp, 510 So.2d 22, 25 (La.App. 1 Cir.), writ denied. 512 So.2d 1176 (La. 1987); see LSA-C.Cr.P. arts. 531-34. The general grounds upon which a motion to quash may be based are set forth in LSA-C.Cr.P. art. 532. These grounds, which are illustrative rather than exclusive, include the fact the indictment fails to charge an offense that is punishable under a valid statute. LSA-C.Cr.P. art. 532(1). When a trial court denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion. See State v. Odom, 02-2698 (La.App. 1 Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 03-2142 (La. 10/17/03), 855 So.2d 765. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Smith, 99-0606 (La. 7/6/00), 766 So.2d 501, 504.
An accused shall be informed of the nature and cause of the accusation against him. LSA-Const. art. I, § 13. That requirement is implemented by LSA-C.Cr.P. art. 464, which provides:
The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.This requirement is intended to protect the accused's right to prepare a defense and fully exercise his right of confrontation. The bill of information must, therefore, inform the defendant of the nature and cause of the accusation against him in sufficient detail to allow him to prepare for trial, as well as to allow the court to determine the admissibility of the evidence. See State v. Johnson, 93-0394 (La. 6/3/94), 637 So.2d 1033, 1034-35 (per curiam). Properly used, a bill of particulars should inform the accused with particularity of all the essential facts relied upon to prove the crime charged and remove any doubt as to the crime charged. Hence, the accused will know the scope of his criminal activity so as to properly defend himself and eliminate any possibility of ever being charged again with the same criminal conduct. State v. Authement, 532 So.2d 869, 873 (La.App. 1 Cir. 1988). Accordingly, omission of the essential facts from an information is not necessarily prejudicial error because such facts can be given through responses in a bill of particulars. State v. Frazier, 492 So.2d 156, 159 (La.App. 1 Cir. 1986).
Further, a defendant is to be tried and sentenced under the statute that was in effect at the time he committed the crime. State v. Bethley, 452 So.2d 367, 370 (La.App. 1 Cir. 1984). Ex post facto laws are prohibited by not only the Louisiana Constitution but also the United States Constitution. U.S. Const, art. I, §§ 9 & 10; LSA-Const. art. I, § 23. This prohibition extends to the enforcement of any enactment that changes the punishment to inflict a greater penalty for the crime than that which was authorized at the time it was committed. Thus, legislation that amends a criminal statute to increase the possible maximum penalty for violating the statute cannot be applied to someone convicted of committing a crime prior to the enactment of the legislation. See State v. Robinson, 423 So.2d 1053, 1063 (La. 1982).
Although the language of the federal constitution does not define the term ex post facto, the case of Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 390, 1 L.Ed. 648 (1798), interpreted that term, and that holding has been applied ever since. The Calder court outlined four categories of ex post facto laws: (1) a law making criminal, and subject to punishment, an activity that was innocent when originally done; (2) a law aggravating a crime or making it a greater crime than it was when originally committed; (3) a law aggravating a crime's punishment; and (4) a law altering the rules of evidence to require less or different testimony than was required at the time of the commission of the crime so as to make easier the conviction of the offender. Calder, 3 U.S. at 390; State ex rel. Olivieri v. State, 2000-0172 (La. 2/21/01), 779 So.2d 735, 742, cert. denied. 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001) & 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001). In Olivieri, the Louisiana Supreme Court held that in determining whether there has been an ex post facto violation, the analysis should focus on whether the new law redefines criminal conduct or increases the penalty by which the conduct is punished, and not whether the defendant has simply been disadvantaged. Olivieri, 779 So.2d at 744. A statute which involves the first three Calder categories passes ex post facto examination if it does not punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with a crime any defense available according to law at the time the act was committed. Olivieri, 779 So.2d at 743.
Herein, the record includes two motions to quash filed by defendant. The first motion, filed June 12, 2012, states, in part, that defendant was not properly informed that he had to register at the time of his forcible rape conviction. The motion also states that in September of 2011, the district attorney's office rejected a failure to register as a sex offender charge as indicated by an attached letter also stating that the State reserved the right to reopen the case should additional information become available. At the motion to quash hearing, Deputy Reynolds testified that on January 25, 2011, after defendant's January 19th release, defendant came to his office for registration purposes and signed documentation to show that he was informed of the sex offender registration and notification requirements. Deputy Reynolds denied that defendant was reluctant in signing the document and further denied that statements were ever made that if he did not sign it he would return to jail. Defendant subsequently called Deputy Reynolds and indicated that he was not required to register as a sex offender based on a letter from the 21st Judicial District Court District Attorney's Office indicating that he would not be prosecuted. Deputy Reynolds informed defendant that the letter did not alleviate him from the sex offender registration requirements. The defense attorney argued that the registration requirement did not apply to defendant since he served ail of his time on the forcible rape conviction prior to the 1992 enactment of the law. Before the trial court denied the motion, the State argued that the law retroactively applied to defendant.
In his second motion to quash, filed on the trial date of October 23, 2012, defendant reiterated that at the time of his conviction there were no sexual offender registration or notification requirements codified in Louisiana. The motion further noted that his conviction was before the 1992 law and subsequent amendments and that he was not in custody of the Department of Corrections for a sex offense on or after the 1992 law. The motion concluded that the bill of information was defective because it failed to allege a sex offense in violation of the statute. At the hearing on the second motion, the defense attorney noted that defendant was released in 1988 after serving time for his forcible rape conviction and completed his parole time of roughly two years, long before his January 19, 2011 release date for a subsequent armed robbery conviction that resulted in a seventeen-year sentence. Defendant again argued that the lifetime registration requirements enacted in 1992 did not apply to his 1985 conviction and that he was not ordered to register or advised of notification requirements, adding that he completed his parole in 1990. Defendant further argued that the retroactive application of the registration requirements was unconstitutional and punitive in nature, since he would have to pay associated fees and failure to comply would result in jail time. Defendant also noted that only his forcible rape offense was sexual in nature and that he has not been arrested or convicted for any other sexual offense. The defense attorney also argued that defendant signed the registration requirement notification document under duress.
The State noted that the old law required defendant to register as a sex offender for ten years and that the period began to run anew from the date of the release for his subsequent period of incarceration for the armed robbery offense. The State further contended that with respect to the statutory amendment, the lifetime sex offender registration requirement is retroactive.
After the evidence was presented at trial, the trial court denied the motion to quash and found defendant guilty of attempted failure to register. The trial court noted that it believed there was a miscommunication and that defendant, despite being informed and required otherwise, truly believed that he did not have to register.
We note that, while defendant's second motion to quash stated that the bill of information was defective because it failed to allege a sex offense in violation of the statute, defendant did not argue at either of the hearings that the bill of information was defective due to any lacking of essential facts. At any rate, defendant filed discovery and bill of particulars motions and the State's answers clearly informed defendant of the underlying sex offense (forcible rape) alleged by the State. It is well settled that a defendant may not complain of the insufficiency of the indictment or bill of information after conviction if the offense charged has actually been identified and no prejudice has resulted from a lack of notice. See State v. Gainey, 376 So.2d 1240, 1242-43 (La. 1979). In this case, the bill of information, together with the State's answers to the bill of particulars and attachments, was sufficient to inform defendant of the nature and cause of the accusation against him in enough detail to allow him to prepare for trial, to allow the trial court to determine the admissibility of evidence, and to eliminate any possibility of defendant ever being charged again for the same criminal conduct. Further, defendant was only convicted of one sex offense of which he acknowledged and has not argued prejudice or surprise. Defendant has been fairly informed of the charge against him and has failed to show lack of notice or prejudice.
Further, it is well-settled that Louisiana's sex offender registration requirements are not punitive, but rather, they are remedial and may be applied retroactively without violating the prohibition of the ex post facto clause. State v. Clark, 12-1296 (La. 5/7/13), ___ So.3d ____, (per curiam); Smith v. State, 10-1140 (La. 1/24/12), 84 So.3d 487, 497-98; Olivieri, 779 So.2d at 749-50. In 2007, the Louisiana Legislature reenacted and redesignated several portions of LSA-R.S. 15:542. Specifically, the penalty portion of the statute was moved to LSA-R.S. 15:542.1.4, which provides, in part:
A. (1) A person who fails to register, periodically renew and update registration, provide proof of residence or notification of change of address or other registration information, or provide community notification as required by the provisions of this Chapter, and a person who knowingly provides false information to
a law enforcement agency as provided in R.S. 15:542(C)(3), shall, upon first conviction, be fined not more than one thousand dollars and imprisoned with hard labor for not less than two years nor more than ten years without benefit of parole, probation, or suspension of sentence.
In Olivieri, the Louisiana Supreme Court considered an ex post facto challenge to the sex offender registration provisions. After carefully evaluating the provisions of the sex offender statutes, the majority first noted that the legislative intent behind the statutes was to alert the public for the purpose of public safety, a remedial intent, and not to punish convicted sex offenders. Olivieri, 779 So.2d at 747. The court further noted that while some of the provisions of the sex offender statutes may be remotely similar to historical forms of punishment, such as public humiliation, the immediate need for public protection was a corollary of, rather than an addendum to, the punishment of sex offenders. Olivieri, 779 So.2d at 748. Lastly, the court recognized that although the sex offender statutes imposed the burden of the public and community notification process on the convicted sex offenders, which caused them to have to expend money that they were not obligated to pay at the time they committed their respective offenses, the onus placed on them by the legislation did not constitute a separate punishment for their offense. Rather, these obligations constitute a condition of their release, respectively, parole and probation. Therefore, any costs associated with the conditions of their release were a necessary part of the regulatory scheme of the legislation at the time of that release. Olivieri, 779 So.2d at 748-49.
The court resolved the issue by holding the registration and notification requirements imposed upon sex offenders to be a legitimate, non-punitive regulatory scheme that did not impose punishment. Olivieri, 779 So.2d at 747. Because such provisions were found to be remedial in nature, the court concluded that application of the sex offender registration and notification laws to persons convicted before their enactment does not violate ex post facto principles. The court specifically determined that sex offender penalty provisions do not warrant an ex post facto analysis. It is inconsequential that a prior conviction for sexual misconduct triggers the offense for failure to register. "It is hornbook law that no ex post facto problem occurs when the legislature creates a new offense that includes a prior conviction as an element of the offense, as long as the other relevant conduct took place after the law was passed." Russell v. Gregoire, 124 F.3d 1079, 1088-89 (9th Cir. 1997), cert. denied, 523 U.S. 1007, 118 S.Ct. 1191, 140 L.Ed.2d 321 (1998); see also United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam); Olivieri, 779 So.2d at 748.
Likewise, defendant in this case was charged with an offense separate from that which formed the basis of his original conviction. Although his prior conviction for forcible rape forms an element of the offense set out in LSA-R.S. 15:542.1, a conviction is based on a showing that defendant also failed to comply with the various registration and notification requirements set out in the statutes. In other words, LSA-R.S. 15:542.1 does not present an ex post facto problem because any conviction based upon this statute is dependent upon proving that other relevant conduct took place after the statute's passage, i.e., a defendant's failure to register as a sex offender. Accordingly, the trial court did not err in concluding that defendant's prosecution for failure to register as a sex offender did not violate ex post facto principles. We do not find error or abuse of discretion in the trial court's denial of the defendant's motion to quash.
Defendant's sole assignment of error is without merit.
DECREE
For the above and foregoing reasons, we affirm defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED. STATE OF LOUISIANA
V.
LARRY COVINGTON
NUMBER 2013 CA 0098
COURT OF APPEAL
BEFORE: PETTIGREW, McDONALD, AND McCLENDON, JJ. PETTIGREW, 1, CONCURS WITH THE RESULT, AND ASSIGNS REASONS.
Although I fundamentally disagree with the Louisiana Supreme Court's decisions in State ex rel. Olivieri v. State, 2000-0172 (La. 2/21/01), 779 So.2d 735, 742, cert. denied, 533 U.S. 936, 121 S.C. 2566, 150 L.Ed.2d 730 (2001) & 534 U.S. 892, 122 S.Ct. 208, 151 LEd.2d 148 (2001), State v. Clarke, 2012-1296 (La. 5/17/13), ____ So.3d ____, (per curiam), and Smith v. State, 2010-1140 (La. 1/24/12), 84 So.3d 487, 497-98,1 am constrained to follow them. For this reason I concur in the result.