State v. Lodge

116 So. 3d 851, 2013 WL 1912589
CourtLouisiana Court of Appeal
DecidedMay 8, 2013
DocketNos. 2012-KA-0733, 2012-KA-0734
StatusPublished
Cited by5 cases

This text of 116 So. 3d 851 (State v. Lodge) 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. Lodge, 116 So. 3d 851, 2013 WL 1912589 (La. Ct. App. 2013).

Opinion

JAMES F. McKAY III, Chief Judge.

| jThe State appeals the judgment of the trial court granting Leroy Lodge’s, motion to quash the bill of information on December 14, 2011 and finding that the State’s prosecution of the defendant was prohibited by the ex post facto clauses of both the State and Federal constitutions. We find merit to the State’s argument and reverse the judgment of the trial court.

STATEMENT OF CASE

In this consolidated appeal we are addressing 2012-KA-0733, which corresponds to district court number 502-192 “B”, and 2012-KA-0734, which corresponds with district court number 508-450 “B.” Both appeals concern issues of two separate violations of Louisiana’s sex offender registration law, pursuant to La. R.S. 15:540 et seq.

In 1983, Leroy Lodge was convicted of forcible rape, a violation of La. R.S. 14:42.1, and sentenced to twenty years. See State v. Lodge, 447 So.2d 88 (La.App. 4 Cir.1984). Leroy Lodge was incarcerated for this offense from January of 1983 until he was paroled and released in June 1995. In 1999, Leroy Lodge’s parole was revoked on a technical violation of his probation, and he was reincarcerated until his release in 2003. At the time of his commission of the alleged lacrime, and his conviction of the offense, there were no statutes in place in Louisiana that required Leroy Lodge to register as a sexual offender. However, as a condition of his probation, upon his release, he registered as a sex offender pursuant to La. R.S. 15:540 et seq., which in 2003, required registration for a ten year period. We note that on February 14, 2007, the Division of Probation and Parole for the State of Louisiana terminated Leroy Lodge’s period of supervision. He was notified that his case was being transferred to the New Orleans Police Department for registration and notification monitoring. In compliance with La. R.S. 15:540 et seq., after his release in 2003, he continued to register until 2010. In a revision to La. R.S. 15:544(A), the general registration period was extended from ten to fifteen years, which effectively extended Leroy Lodge’s registration obligation.

On May 9, 2011, at a preliminary hearing in magistrate court, Detective Randy Hughes, assigned to the New Orleans Police Department’s Sex Crimes Unit, testified that he reviewed Leroy Lodge’s file on May 26, 2010. He testified that at the time of Leroy Lodge’s September 8, 2009 periodic registration, Leroy Lodge listed his address as 7044 Warfield Street, New Orleans, Louisiana. Upon further review Detective Hughes discovered that Leroy Lodge never returned for his periodic registration update on December 3, 2009, and that Leroy Lodge also failed to report for his March 26, 2010 periodic registration. See La. R.S. 15:542.1.1.

On May 27, 2010, an arrest warrant was issued against Leroy Lodge. On June 28, 2010, Leroy Lodge was arrested. On November 24, 2010, Leroy Lodge was charged by bill of information with a failure to register as a sex offender in viola[854]*854tion of La. R.S. 15:542(case # 502-192 “B”).

|sOn May 18, 2011, a new warrant for Leroy Lodge’s arrest was issued. According to the warrant application filed by State Trooper Andrew Pratt, an April 26, 2011 compliance check revealed that Leroy Lodge was not living at his registered address.1 Leroy Lodge was arrested pursuant to this warrant on August 10, 2011. A second bill of information was filed against Leroy Lodge in case number 508-450 “B”, charging Leroy Lodge with failing to provide notification of change of address as a sex offender during the period of April 26 to August 9, 2011, which is a violation of La. R.S. 15:542.1.2., which was enacted in 2007 and became effective in 2008.

On November 21, 2011, the Leroy Lodge filed a motion to quash the bill of information under docket number 502-192 “B” alleging that the State’s prosecution would constitute a violation of the ex post facto clause of both the State and Federal Constitutions. He maintains that he was convicted and had served the punitive portion of his sentence before the enactment of La. R.S. 15:40 et seq., the sexual offender registration act. He asserts that as such, he is being wrongfully prosecuted for a collateral criminal consequence; a failure to register. Leroy Lodge is not challenging the initial retroactive application of the statute in 1995 because it was a condition of his parole. On December 14, 2011, the trial court granted the defendant’s motion to quash, opining that the issue was “right [ripe] for the Fourth Circuit,” and adopted the motion for both cases, numbers 502-192 “B” and 508-450 “B”, and quashed the bills of information for both cases.

|4The State appealed the trial court’s ruling in both cases. On May 29, 2012, the State filed a motion to consolidate the appeals from both trial case numbers. This Court consolidated case numbers 2012-KA-0783 and 2012-0734 on June 5, 2012.

DISCUSSION

In Leroy Lodge’s November 21, 2011 motion to quash, under docket number 502-192 “B”, he maintains that the State’s prosecution is based upon his alleged failure to register under La. R.S. 15:542 et seq., which imposes a lifetime registration obligation on sex offenders, violates the prohibition against the imposition of ex post facto laws in both the Louisiana and Federal Constitutions. In support of his argument he asserts that his case is similar to State v. Smith, 2009-1765 c/w 2009-1169 (La.App. 1 Cir. 3/26/10), 2010 WL 1173071, unpub.

Conversely, the State maintains that the trial court erred in quashing the bill of information in cases 502-192 “B” and 508-450 “B”, as the ex post facto clauses were not violated by charging Leroy Lodge with the revisions to La. R.S. 15:524. The State argues that the First Circuit’s decision in Smith, was reversed by the Louisiana Supreme Court in Smith v. State, 2010-1140 (La.1/24/12), 84 So.3d 487.

Leroy Lodge now argues that his case is distinguishable from Smith because 1) there was no initial sexual offender registration requirement at the time of his conviction; 2) he had fulfilled his requirement to register as a sexual offender as a condition of parole prior to being informed and notified of the new lifetime registration [855]*855requirement; and 3) he is facing mandatory jail time and fines.

Art. I, § 10 of the United States Constitution prohibits states from passing, and La. Const. Art. I, § 23 prohibits the enactment of, ex post facto laws. See also State ex rel. Olivieri v. State, 2000-0172, 2000-1767 (La.2/21/01), 779 So.2d 735, (analyzing both clauses). Under U.S. Const. Art. I, § 10, four categories of ex post facto laws have been outlined: 1) a law making criminal, and subject to punishment, an activity which 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. Id. at 1767 p. 11, 779 So.2d at 742, citing Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798). The focus of a federal ex post facto inquiry is whether a legislative change “alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Olivieri,

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Related

State v. Cinquemano
257 So. 3d 234 (Louisiana Court of Appeal, 2018)
State v. Rainey
189 So. 3d 439 (Louisiana Court of Appeal, 2016)
State v. Lodge
176 So. 3d 612 (Louisiana Court of Appeal, 2015)
State v. Armstead
144 So. 3d 66 (Louisiana Court of Appeal, 2014)

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Bluebook (online)
116 So. 3d 851, 2013 WL 1912589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lodge-lactapp-2013.