Opinion
NO. 2012 CA 0966
02-15-2013
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS: IN THE MATTER OF WILLIAM T. FORLANDER; DOCKET NO. 2010-4524-PS-SXOR v. PROCEEDINGS UNDER THE LOUISIANA ADMINISTRATIVE PROCEDURE ACT AND LA. R.S. 15:542.1.3
Harrietta J. Bridges, Adrienne E. Aucoin Baton Rouge, Louisiana Attorneys for Appellant, State of Louisiana, Department of Public Safety and Corrections L. J. Hymel Michael Reese Davis Tim P. Hartdegen Baton Rouge, Louisiana Attorneys for Appellee, William Thomas Forlander
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 19th Judicial District Court
In and for the Parish of East Baton Rouge,
State of Louisiana
Trial Court No. C 597134
The Honorable Janice Clark, Judge Presiding
Harrietta J. Bridges,
Adrienne E. Aucoin
Baton Rouge, Louisiana
Attorneys for Appellant,
State of Louisiana, Department
of Public Safety and Corrections
L. J. Hymel
Michael Reese Davis
Tim P. Hartdegen
Baton Rouge, Louisiana
Attorneys for Appellee,
William Thomas Forlander
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ.
CRAIN , J.
The State of Louisiana, Department of Public Safety and Corrections, Office of State Police, Louisiana Bureau of Criminal Identification and Information (the Bureau), appeals a judgment of the district court overturning an administrative decision and rendering judgment in favor of William T. Forlander. For the following reasons, we reverse and render judgment.
FACTUAL AND PROCEDURAL HISTORY
Forlander is a Louisiana resident who pled guilty on November 19, 2002, in the United States District Court for the Western District of Louisiana to possession of child pornography, a violation of Title 18, Section 2252A(a)(5)(B) of the United States Code. On April 1, 2010, the Bureau notified Forlander that he would be required by Louisiana law to register as a sex offender for a period of twenty-five years.
As instructed by the Bureau, Forlander appealed the Bureau's determination of his registration period pursuant to the Louisiana Administrative Procedure Act (APA). An administrative hearing was conducted before an Administrative Law Judge (ALJ) during which testimony was adduced and evidence presented. The ALJ determined that Forlander had no right to appeal the Bureau's determination and dismissed Forlander's appeal.
Forlander appealed the ALJ's ruling to the Nineteenth Judicial District Court which determined that Forlander was entitled to appeal the Bureau's determination of his registration period. The district court then considered the administrative record and determined that the Bureau erred in its determination of Forlander's required registration period. The district court rendered judgment declaring the required registration period to be fifteen years. This appeal by the Bureau followed.
DISCUSSION
Appellate review under the APA is governed by Louisiana Revised Statutes 49:964G which provides:
The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:Any one of the six bases listed in the statute is sufficient to modify or reverse an agency determination. Wild v. State, Dept. of Health and Hospitals, 08-1056 (La. App. 1 Cir. 12/23/08), 7 So. 3d 1, 4. Judicial review shall be conducted by the court without a jury and shall be confined to the record. La. R.S. 49:964F. When reviewing an administrative decision, the district court functions as an appellate court. Wild, 7 So. 3d at 4. Once a final judgment is rendered by the district court, an aggrieved party may seek review by appeal to the appropriate appellate court. La. R.S. 49:965.
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency's determination of credibility issues.
The district court correctly determined that the ALJ committed legal error in its determination that Forlander had no right to appeal the Bureau's registration determination. The district court then considered the administrative record and made its own determination and conclusions based upon its evaluation of the record. See Bell Oaks, Inc. v. Louisiana Dept. of Health & Hospitals, 96-1256 (La. App. 1 Cir. 6/26/97), 697 So. 2d 739, 744, writ denied, 97-2202 (La. 11/21/97), 703 So. 2d 1313 (stating "where one or more legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record"). See also Shelton v. Louisiana Dept. of Corrections, 960348 (La. App. 1 Cir. 2/14/97), 691 So. 2d 159, 163. On review of the district court's judgment, no deference is owed by the court of appeal to the legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to legal conclusions of the courts of appeal. Doc's Clinic, A PMC v. State ex rel. Dept. of Health and Hospitals, 07-0480 (La. App. 1 Cir. 11/2/07), 984 So. 2d 711, 719, writ denied, 07-2302 (La. 2/15/08), 974 So. 2d 665. Consequently, this court will conduct its own independent review of the record in accordance with the standards provided in Section 964G.
All adult Louisiana residents who have pled guilty to or been convicted of an offense defined as a sex offense under Louisiana law are subject to the sex offender registry provisions set forth in Louisiana Revised Statutes 15:540, et seq. La. R.S. 15:542. Depending upon the nature of the underlying conviction, sex offenders must register for their lifetime, twenty-five years, or fifteen years. La. R.S. 15:544. Failure to comply with the registration requirements is a crime. La. R.S. 15:542.1.4.
At the time the Bureau determined Forlander's required registration period, Louisiana Revised Statutes 15:544 titled "Duration of registration and notification period," provided, in pertinent part:
A. Except as provided for in Subsection B of this Section, a person required to register and provide notification pursuant to the provisions of this Chapter shall comply with the requirement for a period ofLouisiana Revised Statutes 15:541(25) defined "sexual offense against a victim who is a minor" as:
fifteen years from the date of the initial registration, or the duration of the lifetime of the offender as provided in Subsection E of this Section, unless the underlying conviction is reversed, set aside, or vacated. The requirement to register shall apply to an offender who is pardoned.
B. (1) A person required to register pursuant to this Chapter who was convicted of a sexual offense against a victim who is a minor as defined in R.S. 15:541 shall register and maintain his registration and provide community notification pursuant to the provisions of this Chapter for a period of twenty-five years from the date of initial registration, or the duration of the lifetime of the offender as provided in Subsection E of this Section, unless the underlying conviction is reversed, set aside, or vacated. The requirement to register shall apply to an offender who is pardoned. [Footnote added.]
[A] conviction for the perpetration or attempted perpetration of, or conspiracy to commit, any of the following:
(e) Pornography involving juveniles (R.S. 14:81.1). [Emphasis added.]
Subsection D further provided a mechanism for a fifteen-year registrant to have his registration period reduced to ten years upon maintenance of a clean record as defined by the statute.
The Louisiana classification scheme requires the Bureau to compare the elements of the crime for which the defendant was convicted with the elements of the most comparable Louisiana offense to determine the applicable registration period. La. R.S. 15:542.1.3. The Bureau considered Forlander's offense to be most comparable to the Louisiana offense of pornography involving juveniles, a violation of Louisiana Revised Statutes 14:81.1 which equated to a sexual offense against a victim who is a minor and required a twenty-five-year registration period. Forlander maintains that the Bureau erred in determining that the two offenses were comparable for the purpose of determining his sex offender registration period.
Forlander was convicted of violating Section 2252A(a)(5)(B) of the United States Code, the applicable version of which provided that a person was guilty of possession of child pornography when he:
knowingly possesses any book, magazine periodical film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer[.] [Emphasis added.]
At the applicable time, Louisiana Revised Statutes section 14:81.1 provided, in pertinent part:
A. Pornography involving juveniles is any of the following:
(1) The photographing, videotaping, filming, or otherwise reproducing visually of any sexual performance involving a child under the age of seventeen.
(2) The solicitation, promotion, or coercion of any child under the age of seventeen for the purpose of photographing, videotaping, filming, or otherwise reproducing visually any sexual performance involving a child under the age of seventeen.
(3) The intentional possession, sale, distribution, or possession with intent to sell or distribute of any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen. [Emphasis added.]
(4) The consent of a parent, legal guardian, or custodian of a child under the age of seventeen for the purpose of photographing, videotaping, filming, or otherwise reproducing visually any sexual performance involving the child.
Forlander contends that because Section 81.1 encompasses more than simply possessing pornography involving juveniles, it is not comparable to Section 2252A(a)(5)(B) of the United States Code. However, Louisiana law requires only that the elements of the two offenses be compared. La. R.S. 15:542.1.3. Under both Section 2252A(a)(5)(B) and Section 81.1, the crime is proven upon proof of simply possessing the pornography.
Forlander does not suggest another Louisiana offense that he believes is more comparable to his federal conviction.
Based upon the elements necessary to prove a violation, Forlander's federal conviction is most comparable to a conviction under Louisiana law of Section 81.1. Section 81.1 is a sexual offense against a victim who is a minor as defined in Louisiana Revised Statute 15:541(25). Consequently, a twenty-five-year registration period is required. La. R.S. 15:544B(1).
Section 541(25) now includes within the definition of "sexual offense against a victim who is a minor" "[a]ny conviction for an offense under the laws of another state, or military, territorial, foreign, tribal, or federal law which is equivalent to the offenses listed in Subparagraphs (a) through (n) of this Paragraph." Although this was not included within the definition of "sexual offense against a victim who is a minor" contained in Section 541 at the time at issue herein, the law still directed that the elements of the offender's offenses be compared, as was done by the Bureau. See La. R.S. 15:542.1.3.
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Forlander argues that his registration period should be fifteen years based on guidelines set forth in the federal Sex Offender Registration and Notification Act ("SORNA"). See 42 U.S.C.A. 16911, 16912, 16915. Louisiana law, however, requires that Forlander's registration period be determined as we have described herein. Moreover, the National Guidelines published by the Department of Justice through the Office of the Attorney General indicate that SORNA establishes minimum standards and does not restrict states from imposing more stringent requirements. 73 Fed Reg. 38030 (July 2, 2008).
CONCLUSION
Considering the foregoing, we find that the district court erred in its rendition of judgment in Forlander's favor. The judgment of the district court is reversed insofar as it rendered judgment holding that Forlander is subject to a fifteen-year registration requirement. Judgment is rendered reinstating the Bureau's determination that Forlander is required to register as a sex offender for a period of twenty-five years. Costs of this appeal are assessed to William T. Forlander.
REVERSED AND RENDERED.