State v. Broussard

268 So. 3d 307
CourtLouisiana Court of Appeal
DecidedDecember 21, 2018
Docket2018 KA 0616
StatusPublished

This text of 268 So. 3d 307 (State v. Broussard) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Broussard, 268 So. 3d 307 (La. Ct. App. 2018).

Opinion

McCLENDON, J.

*308Defendant, Cal Broussard, was charged by bill of Information with unlawful use of a social network website, a violation of LSA-R.S. 14:91.5 (count 1), and with failure to register as a sex offender, a violation of LSA-R.S. 15:542C(1) (count 2). He entered a plea of not guilty as to both counts. Defense counsel filed motions to quash each charge, challenging the constitutionality of both statutes. Thereafter, the State dismissed count one, thereby making the motion to quash as to count one moot. The trial court denied the motion to quash as to count two. After being advised of his rights, defendant then entered a plea of guilty as to the second count, reserving his right to appeal his claim as to the unconstitutionality of the statute pursuant to State v. Crosby, 338 So.2d 584, 586 (La. 1976). The trial court imposed a term of two years imprisonment at hard labor, to be served without the benefit of probation, parole, or suspension of sentence. Defendant now appeals, designating a single assignment of error. For the following reasons, we vacate the conviction and sentence, and remand the case to the trial court to provide the Attorney General the opportunity to participate in the proceedings.

STATEMENT OF FACTS1

On March 20, 2015, defendant entered a plea of guilty in Ascension Parish to indecent behavior with a juvenile, a violation of LSA-R.S. 14:81. He was sentenced to five years imprisonment at hard labor without parole, probation, or suspension of sentence for the first two years. Thereafter, defendant was to serve three years on active probation.

Following his move to St. Tammany Parish, after his release from incarceration, defendant registered as a sex offender with the St. Tammany Sheriff's Office. During a surprise inspection by his probation officer on June 6, 2017, a laptop computer open to a social networking site was found on defendant's bed. Investigation revealed an email address defendant was using that was not reported to the Sheriff during defendant's registration.

ASSIGNMENT OF ERROR

In his sole assignment of error, defendant contends the trial court erred when it denied his Motion to Quash the bill of information due to the fact the statute with which he was charged, LSA-R.S. 15:542C, is unconstitutional.2 In support of his *309claim, defendant cites the case of Doe v. Harris, 772 F.3d 563 (9th Cir. 2014). In Harris, the Ninth Circuit held that the plaintiffs, challenging a newly-applicable California sex offender registration statute, were entitled to injunctive relief. The court reasoned the statute was likely unconstitutional because it was not narrowly tailored to serve an important governmental interest and unduly restricted the speech of sex offenders no longer on probation. However, due to the procedural posture of the case, the court did not rule on the merits of the plaintiffs' claims. Harris, 772 F.3d at 583. In this matter, defendant argues the mandatory provision that sex offenders register all email addresses to the State is a similar speaker-based restriction that improperly curtails his freedom of anonymous online speech. As a result, defendant argues, the statute is unconstitutionally overbroad, chilling on speech, and is therefore unenforceable. Defendant concedes that the Harris plaintiffs were under no governmental supervision, in contrast to him remaining on probation. However, defendant also argues his case is best resolved through the probation revocation/modification process through his still-pending Ascension Parish case.

The State argues that no notice was given to the Attorney General's Office, and consequently, the appeal is not yet properly before this court. The State contends the conviction and sentence should be vacated and the case remanded to provide the Attorney General an opportunity to be heard. The State's brief does not address the merits of defendant's claim. In turn, defendant makes no argument regarding the necessity of including the Attorney General in the proceedings.

Statutes are presumed to be valid, and the constitutionality of a statute should be upheld whenever possible. State v. Hart, 96-0599 (La. 1/14/97), 687 So.2d 94, 95. A constitutional challenge may not be considered by an appellate court unless it was properly pled and raised in the trial court below. State v. Hatton, 07-2377 (La. 7/1/08), 985 So.2d 709, 718 ; State v. Green, 16-0057, p. 6 (La.App. 1 Cir. 6/1/18), 2018 WL 2453456 (unpublished), writ denied, 18-1060 (La. 11/14/18), 256 So.3d 281. More specifically, a constitutional challenge to a state law must be pled or litigated in the trial court in order for the issue to be considered on appeal. Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94), 646 So.2d 859, 864-65 (constitutionality of statute must first be questioned in trial court; plea *310of unconstitutionality must be specifically pled to be considered by trial court); cf. Basco v. Dorthy R. Racine Trucking, Inc., 97-2740 (La.App. 1 Cir. 12/28/98), 725 So.2d 606, 609-10, writ denied, 99-0263 (La. 3/19/99), 740 So.2d 119.

In the case of a declaratory judgment action, where a statute is alleged to be unconstitutional, the state attorney general must be served with a copy of the proceeding and given the opportunity to be heard. LSA-C.C.P. art. 1880 ; LSA-R.S. 49:257C ("Notwithstanding any other law to the contrary, the attorney general, at his discretion, shall represent or supervise the representation of the interests of the state in any action or proceeding in which the constitutionality of a state statute or of a resolution of the legislature is challenged or assailed."); Vallo, 646 So.2d at 864 ; see also Williams v.

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Bluebook (online)
268 So. 3d 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-broussard-lactapp-2018.