Opinion
NO. 2014 CA 1264
03-06-2015
STATE OF LOUISIANA v. MIKE RUTHERFORD
ADRIENNE ELIZABETH AUCOIN BATON ROUGE, LA ATTORNEY FOR PLAINTIFF-APPELLANT STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, OFFICE OF STATE POLICE, BUREAU OF CRIMINAL IDENTIFICATION AND INFORMATION JAMES KIRK PICCIONE LAFAYETTE, LA ATTORNEY FOR DEFENDANT-APPELLEE MIKE RUTHERFORD
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana
Trial Court No. C629258
Honorable Janice Clark, Judge
ADRIENNE ELIZABETH AUCOIN
BATON ROUGE, LA
ATTORNEY FOR
PLAINTIFF-APPELLANT
STATE OF LOUISIANA, THROUGH
THE DEPARTMENT OF PUBLIC
SAFETY AND CORRECTIONS, OFFICE
OF STATE POLICE, BUREAU OF
CRIMINAL IDENTIFICATION AND
INFORMATION
JAMES KIRK PICCIONE
LAFAYETTE, LA
ATTORNEY FOR
DEFENDANT-APPELLEE
MIKE RUTHERFORD
BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ. PETTIGREW, J.
The State of Louisiana, through the Department of Public Safety and Corrections, Public Safety Services, Office of State Police, Bureau of Criminal Identification and Information (the Bureau), appeals a district court judgment dated July 30, 2014, which granted the petitioner, Mike Rutherford (Rutherford), injunctive relief, and ordered that he be removed from the State Sex Offender and Child Predator Registry and be relieved of any and all registry and notification requirements.
The salient issue presented in this appeal is the correct application of Louisiana's sexual offender registration and notice provisions to the facts of this case. Because the correct interpretation or application of the law is a strictly legal issue, it is reviewed by this court de novo. Kevin Associates, L.L.C. Crawford, 2003-0211 (La. 1/30/04), 865 So.2d 34, 43; Richardson v. Imperial Fire & Cas. Ins. Co., 2014 WL 7390740, 2014-0368 (La. App. 1 Cir. 12/30/14)(unpublished).
On May 29, 1992, the petitioner, Mike Rutherford, was convicted in the state of Oklahoma for lewd molestation, the equivalent of sexual battery of a child under the age of thirteen years under Louisiana law. (La. R.S. 14:43.1(C)(2)). He was sentenced in Oklahoma to ten years at hard labor. He was released from prison in Oklahoma, with his sentence being fully discharged based on good time, on August 16, 1996. He registered in Oklahoma as a registered sex offender for ten years, as required under Oklahoma law. It is undisputed that Rutherford has not committed any other sex offenses, or had any other convictions since the 1992 offense.
Rutherford moved to Louisiana in 2005, and on March 3, 2005, he registered as a sex offender in Louisiana with the Terrebonne Parish Sheriff's Office, in compliance with Louisiana sex offender registration law. At that time, the law required convicted sex offenders, both Louisiana offenders and out-of-state offenders living in Louisiana, to register for a period often years, which period began to run from the date of the release from incarceration. See La. R.S. 15:544 ana La. R.S. 15 342.1.
In 2005, La. R.S. 15:544 provided, in pertinent part:
A. A person required to register and give notice under R.S. 15:542 shall comply with the requirement for a period of ten years after the conviction, if not imprisoned during that period in a penal institution, full-time residential treatment facility, hospital, or other facility or institution pursuant to the conviction. If the person required to register and give notice is imprisoned or confined to a penal institution, full-time residential facility, hospital, or other facility or institution pursuant to the conviction, he shall comply with the registration and notice provisions for a period of ten years after release from his confinement or imprisonment A convicted sex offender's duty to register and give notice terminates at the expiration often years from the date of initial registration, provided that during the ten year period the convicted sex offender does not again become subject to this Chapter. (Emphasis added.)
In 2005, La. R.S. 15:542.1 provided in pertinent part:
K. Sex offenders from other states. (1) Any sex offender or offender subject to registration for a criminal offense against a victim who is a minor, or sexually violent predator, who has been convicted or determined to be a sexually violent predator under the laws of another state or the United States, who establishes residence in Louisiana shall be subject to the registration and reporting requirements of this Section.
(2) The Louisiana Bureau of Criminal Identification and Information is hereby designated as the state law enforcement agency to receive sex offender, child predator, and sexually violent predator registrations from other states.
(3) A sex offender, child predator, or sexually violent predator subject to registration under the laws of another state or the United States shall notify the bureau within ten days of establishing residence in Louisiana and shall present himself for registration and give community notification in accordance with R.S. 15:542.
Rutherford continued to iive in Louisiana in 2006, and registered again on July 20, 2006, in Terrebonne Parish. Rutherford moved to, and resided in, New York in September 2007.
On October 15, 2007, Rutherford was notified by the Oklahoma Department of Corrections that he was released from his obligation to register as a sex offender in Oklahoma, and was removed from the Sex Offender Registry in that state, ten years having passed since his release from incarceration. That notification letter was entered into evidence and is a part of the record before us.
Rutherford moved back to Louisiana in 2010. Notwithstanding his personal belief and understanding of the applicable Louisiana statutes - that his registry requirement in Louisiana ended in August 2006, ten years following the end of his incarceration; Rutherford, upon being notified by the Bureau that he was required to continue registering as a sex offender, complied, and registered as a sex offender in Louisiana on May 19, 2010, in Vermillion Parish.
The record reveals, and the parties stipulated that Rutherford registered again, in Louisiana, as a sex offender on January 9, 2014 and again on April 4, 2014, as instructed to do so by the Bureau, despite his contention and belief that he was no longer required by Louisiana law to do so.
On June 2, 2010, the Bureau inform Rutherford by letter that his 1992 Oklahoma sex offense corresponded with the elements of the Louisiana offense of sexual battery of a child under the age of thirteen, La. R.S. 14:43.1(C)(2), which pursuant to the Louisiana sex offender registration statute in effect at that time (2010), (see La. R.S. 15:544, La. R.S. 541, and La. R.S. 15:542.1.3, as amended, by Acts 2007, No. 460, § 2, effective January 1, 2008), required lifetime registration. However, of significant relevance, Section 6 of Acts 2007, No. 460 provided:
Section 6. The provisions of this Act shall apply to all persons convicted of a sex offense or a criminal offense against a victim who is a minor, as defined in R.S. 15:541, regardless of the date of conviction, with the exception of those persons required, to register under previous provisions of law whose obligations to register have been fulfilled and extinguished by operation of law. Any person under an obligation to register as of the effective date of this Act shall comply with the requirements contained in this Act and shall be given credit for having fulfilled their obligations to register for the length of time equal to their previous registration in compliance with law." (Emphasis added.)On March 24, 2014, Rutherford filed a Petition for Injunctive Relief, which ultimately gave rise to this appeal. In that petition, he asserts that at the time of his release from sex offender registration requirements in Oklahoma, October 10, 2007, the then-existing Louisiana sex offender registration provision, La. R.S. 15:544 (2007), provided for a ten-year registration period, beginning from the date of release from incarceration. Thus, he maintained he is no longer obligated to register as a sex offender in this state. He further argued that the 2008 amendment to Louisiana's sex offender registration statute, which changed the requirement to lifetime registration in Louisiana, was being wrongfully imposed on him, since he had finished his obligation to register in Louisiana prior to the effective date of that amendment and was, thus, excluded from the application of the statutes, as amended, by the express language of Section 6 of Acts 2007, cited above.
Despite the State's arguments to the contrary, we agree with Rutherford, and find the facts of this case yield a straightforward application of the law as it existed in 2005, when Rutherford moved to Louisiana and became subject to its application. At that time, Louisiana law required only a ten-year registration, and provided that period began to run from the date of the offender's release from incarceration. Louisiana law, at that time (unlike the many subsequent amendments to those statutes), did not delineate where the initial registration was required to be, and it did not exclude registration in another state from being computed as partial fulfillment of Louisiana's requirements.
Therefore, we apply the ten-year requirement for registration provided by Louisiana law as it existed in 2005, when Rutherford moved here and became subject to that law, to the facts of his case: Rutherford was convicted as a sexual offender in 1992, in Oklahoma. He was released from incarceration in 1996 in Oklahoma. At that time, subject to the laws in Oklahoma, he registered as a sexual offender as required for a period of ten years. During that time, he moved to Louisiana in 2005. At that time, Louisiana law, likewise, required a sex offender to register for a period of ten years, commencing from the date of his release from incarceration. Rutherford complied with Louisiana law, and registered as a sexual offender in this state in 2005, Pursuant to Louisiana law, as it existed when it became applicable to Rutherford, in 2005, the ten-year period during which he was required to register began to run from the date of initial registration, i.e., his release from incarceration, August 1996. Simple computation yields that Rutherford's ten-year registration obligation ended in August 2006. Accordingly, after that time, he was no longer obligated to register as a sex offender in Louisiana.
The State relies on State v. Clark, 2012-1296 (La. 5/7/13), 117 So.3d 1246, in maintaining that the running of time a sexual offender is required to register as such does not begin to run until the offender begins to reside in the State of Louisiana. We reject the State's arguments in reliance on the Clark decision because we find that case distinguishable in several very significant facts. Primarily, Clark first moved to Louisiana in 2009; therefore, the 2008 amendments to Louisiana's registration requirements were applicable to Clark. Secondly, at the time of Clark's conviction of sexual assault of a minor child, Texas law did not require him to register as a sexual offender. Thus, there was no "date of initial registration" prior to Clark moving to ana residing in Louisiana. Therefore, the period of time could not have begun to run any earlier than when he began residing in Louisiana. Finally, Clark had subsequent convictions for sexual offenses. Rutherford, on the other hand, has a "clean history," having no subsequent convictions - sexual in nature or otherwise - since 1992. We also note that the court, in Clark, noted, as we have previously in this decision, that the Louisiana legislature provided its own limitation on the retroactive application of the 2007 La. Acts 460, in Section 6 of the act, that sexual offenders who successfully complied with this state's registration provisions before the effective date of the act were exempt from the more onerous registration provisions subsequently enacted. State v. Clark, 117 So.3d at 1249.
For all the foregoing reasons, our de novo review of the facts of this case, and application of those facts to the law in effect in Louisiana at the time the sexual registration requirements applied to Rutherford, yields the same conclusion as that reached by the district court. Accordingly, the July 30, 2014 judgment, granting Mike Rutherford's Petition for Injunctive Relief, removing him from the State Sex Offender and Child Predator Registry, and relieving him of any and all registry and notification requirements is hereby affirmed. Costs of this appeal, in the amount of $600.00 are assessed to the State of Louisiana, Department of Public Safety and Corrections and Louisiana State Police.
AFFIRMED. CHUTZ, J., dissenting.
I disagree with the majority's affirmance of the trial court's grant of injunctive relief and its order removing petitioner-appellee, Mike Rutherford, from the State Sex Offender and Child Predator Registry and relieving him of all registry and notification requirements.
As the majority correctly notes, on March 3, 2005, when Rutherford moved to Louisiana and registered as a sex offender in Louisiana with the Terrebonne Parish Sheriff's Office, La. R.S. 15:544(A) provided in relevant part:
A person required to register and give notice under R.S. 15:542 shall comply with the requirement for a period of ten years after the conviction, if not imprisoned during that period in a penal institution, full-time residential treatment facility, hospital, or other facility or institution pursuant to the conviction. If the person required to register and give notice is imprisoned or confined to a penal institution, full-time residential treatment facility, hospital, or other facility or institution pursuant to the conviction, he shall comply with the registration and confinement or imprisonmen. A convicted sex offender's duty to register and give notice terminates at the expiration of ten years from the date of initial registration, provided that during the ten-year period the convicted sex offender does not again become subject to this Chapter. (Emphasis added.)
Applying these provisions, the majority concludes that the phrase "expiration of ten years from the date of initial registration," commenced on the date Rutherford's duty to register as a sex offender was first imposed, i.e., August 1996, when hewasreleased fromcustody in Oklahom, The majority then reasons that when Rutherford moved back to Louisiana in 2007, he was no longer obligated to register as a sex offender in Louisiana, his obligation to do so having ended in August 2006.
From their inception, 1992 La. Acts No. 388, Louisiana's sex offender registration and notification provisions have applied to adults "residing in this state" convicted of a sex offense as defined in the statute. La. R.S. 15:542(A). They have addressed not only current Louisiana residents who served prison sentences for sex crimes committed in Louisiana, but also offenders convicted in other jurisdictions of sex crimes equivalent to Louisiana's sex offenses who then move to this state. As to the former, under the original 1992 enactment, the convicted sex offender was required to register with the sheriff in the parish of his residence within 30 days "after conviction or release from custody." La. R.S. 15:542(B) (1992 La. Acts No. 388). As to the latter, the sex offender was required to register with the sheriff of the parish of his residence "within forty-five days of establishing residence in Louisiana." Id . Thus, the duty imposed by former La. R.S. 15:544 to register for a period of 10 years following release from "confinement or imprisonment" clearly applied only to Louisiana residents convicted of sex crimes in this state, because La. R.S. 15:542(A) imposed the duty to register only on residents of this state. As to all offenders, however, La. R.S. 15:544 stated that the terminating point of the duty to register was 10 years from the date of "initial registration," which must have meant, according to the plain meaning of the words, the date on which the sex offender actually registered with the sheriff in the parish of his residence in compliance with the law, including those offenders convicted of sex offenses in other jurisdictions who then established residence in this state. State v. Clark , 2012-1296 (La. 5/7/13), 117 So.3d 1246, 1251.
In 2005, when Rutherford moved into Louisiana for the first time after his Oklahoma sex offender conviction, by 1999 La. Acts 1150, § 1, La. R.S. 15:542(B) provided that the sex offender was required to register with the sheriff of the parish of his residence within twenty-one days of establishing residence in Louisiana. And by 2007 La. Acts No. 460, § 2, the legislature added La. R.S. 15:542.1.3, further reducing the time period.
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In this case, it was stipulated that Rutherford was convicted as a sex offender in Oklahoma in 1992; released from incarceration in 1996; and registered as a sex offender in Oklahoma in compliance with that state's laws. During that ten-year Oklahoma registration period, Rutherford moved to Louisiana and, as required in this state at that time, registered as a sex offender on March 3, 2005. Therefore, the date on which the sex offender actually registered with the sheriff in the parish of his residence in compliance with the law was on March 3, 2005. As such, the determination of the correct terminating point of Rutherford's duty to register is calculated from the date of his "initial registration," the date that he actually first registered as a sex offender in Louisiana, which was on March 3, 2005. See Clark , 117 So.3d at 1251.
The majority correctly points out that on June 2, 2010, the State informed Rutherford by letter that his 1992 Oklahoma sex offense corresponded with the elements of the Louisiana offense of sexual battery of a child under the age of thirteen. See La. R.S. 14:43.1(C)(2). Pursuant to the Louisiana sex offender registration statute in effect in 2010, lifetime registration was required. See La. R.S. 15:544, La. R.S. 541, and La. R.S. 15:542.1.3, as amended, by Acts 2007, No. 460, § 2, effective January 1, 2008. In upholding the trial court's issuance of injunctive relief, ordering removal and discontinuation of Rutherford's obligation to comply with the sex offender registration and notification provisions, the majority relies on Section 6 of Act 460, which states that the provisions of Act 460 applied to convicted statutorily qualified sex offenders "with the exception of those persons required to register under previous provisions of law whose obligations to register have been fulfilled and extinguished by operation of law." (Emphasis added.)
But in 2010, Rutherford's duty to register and maintain his registration had not terminated (in 2006, ten years after his duty to register as a sex offender was first imposed), because that duty did not begin until 2005, when he established residency in this state. See Clark , 117 So.3d at 1251-52. Therefore, I disagree with the majority's conclusion that on January 1, 2008, the effective date of 2007 Acts, No. 460, Rutherford's obligation had extinguished. The proviso in Section 6 of Acts 460 could not apply to Rutherford because he had not fully discharged his obligation to register and give notice under the law, which commenced on March 3, 2005, before the amended time periods went into effect on January 1, 2008. See Clark , 117 So.3d at 1252.
The majority's attempt to distinguish Clark is inapposite. Literally reading the phrase "date of initial registration" in the 2005 version of La. R.S. 15:542(A) when Rutherford established residency in Louisiana, avoids a presumption that the legislature intended to impose on a nonresident the duty to register as a sex offender in Louisiana before he ever set foot in Louisiana and without regard to whether the offender subsequently established residence in this state. See Clark , 117 So.3d at l250.
For these reasons, I would reverse the trial court's grant of injunctive relief and its order removing Rutherford from the State Sex Offender and Child Predator Registry and relieving him of all registry and notification requirements. Accordingly, I dissent.