State of Louisiana v. Randolph Marinoni

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-460

STATE OF LOUISIANA

VERSUS

RANDOLPH MARINONI

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 32828
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

REVERSED.

Emma J. Devillier
Assistant Attorney General
P.O. Box 94005
Baton Rouge, LA 70804-9005
(225) 326-6200
COUNSEL FOR PLAINTIFF/APPELLANT:
State of Louisiana, Department of Justice

Adrienne E. Aucoin
P. O. Box 66614
Baton Rouge, LA 70896-6614
(225) 922-2313
COUNSEL FOR PLAINTIFF/APPELLANT:
State of Louisiana, Department of Public Safety & Corrections

IN PROPER PERSON:
Randolph Marinoni
613 N. Deshotel Aveue
Kaplan, LA 70548

DECUIR, Judge.

Randolph Marinoni, a criminal defendant who was convicted of simple rape

in 1998 and has served his sentence, filed a “motion to clarify sentence” seeking a

ruling absolving him of the lifetime requirement to register and provide

notification as a sex offender. The trial court granted the motion, finding that

because the district attorney failed to request a contradictory hearing on the

registration requirements, Defendant was no longer required to continue registering

as a sex offender. For the following reasons, we reverse the judgment rendered

below.

On November 30, 1998, in Vermilion Parish, Defendant pled guilty to

simple rape, a violation of La.R.S. 14:43. Defendant was sentenced to fifteen

years at hard labor, with all but eight years suspended, and was ordered to serve

five years supervised probation upon his release from prison. Defendant was

informed at the time of sentencing of his obligation to register and provide

notification as a sex offender. Prior to the Vermilion Parish rape conviction, on

June 12, 1998, Defendant pled guilty to one count of simple rape in Iberia Parish.

For this conviction which arose from a separate incident, Defendant received the

same sentence of fifteen years at hard labor with all but eight years suspended and

five years’ probation upon release. The sentence imposed in Iberia Parish was

ordered to run concurrent to the sentence imposed in Vermilion Parish, and

Defendant was again informed of his obligation to register and provide notification

as a sex offender.

Defendant was released from prison on October 6, 2001 and, according to

the State, began registration as a sex offender. He was released from probation on

October 6, 2006. In 2008, Defendant filed a motion to clarify his sentence, but he

withdrew that motion less than a month later. The following year, on February 25,

2009, Defendant filed the present motion in which he alleged that the amended sex

offender statutory requirements infringed upon his constitutional rights. His

motion was served on the Vermilion Parish District Attorney’s Office. A subpoena

issued to the Attorney General’s Office was quashed in July of 2009. The motion

was set for hearing on August 13, 2009, and was submitted on briefs. The motion

was again set for hearing on November 12, 2010, and the parties were ordered to

file briefs.

Finally, on January 10, 2011, Defendant filed a brief in support of his

motion. He alleged constitutional infringements on his equal protection and due

process rights, as well as a violation of ex post facto principles with the application

of Louisiana’s amended sex offender registration requirements. The State

responded by stating that the amendments to the sex offender registration statutes

apply retroactively to include the date Defendant was convicted of simple rape, and

further explaining that the supreme court has already rejected Defendant’s ex post

facto argument in State v. Olivieri, 00-172 (La. 2/21/01), 779 So.2d 735. The trial

court determined the amended sex offender registration and notification

requirements do not violate the ex post facto clauses of the United States

Constitution or the Louisiana Constitution, nor do they violate due process and

equal protection principles. However, the court determined that a defendant, who

has not otherwise agreed to do so in his plea agreement, may be required to register

for life as a sex offender only following a contradictory hearing upon motion of the

district attorney and only if the district attorney meets the requisite burden of proof.

Six months later, in November of 2011, the trial court noted the district attorney

had failed to request a contradictory hearing and ordered Defendant “released of

any further duty under the sex offender registration/notification laws of the State of

Louisiana.”

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Neither the Louisiana Department of Public Safety & Corrections, which

administers the sex offender requirements through the Louisiana State Police, nor

the Attorney General’s Office were served with, or notified of, Defendant’s motion

or the trial court’s order releasing Defendant from his statutory requirements. Both

learned of the order through other means and immediately intervened in this case

to file the present appeal.

At the outset, we note the trial court’s ruling on Defendant’s constitutional

arguments was correct. In State v. Trosclair, 11-2302, p. 27 (La. 5/8/12), 89 So.2d

340, 357, the court addressed the retroactive application of a lifetime sex offender

registration requirement and held:

After scrutinizing the challenged supervisory provisions as directed by
the Supreme Court in [Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140
(2003)], we find the nonpunitive regulatory goals of public protection
far outweigh the punitive aspects of supervision enacted to address the
dangers of recidivism. Therefore, we find the provisions at issue here
are predominantly nonpunitive in both intent and effect, and their
retroactive application to this defendant does not violate the Ex Post
Facto Clauses of either the United States or Louisiana Constitutions.

Pursuant to La.R.S. 15:542.1 and La.R.S. 15:544(B)(2)(a) and (c),

Defendant is required to register as a sex offender for the duration of his lifetime.

He is a multiple, aggravated sex offender, having been convicted of simple rape, an

aggravated offense as defined in La.R.S. 15:541(2)(c), in two separate jurisdictions

for acts committed on different dates. While in some instances (such as certain

juvenile offenders), a sex offender may be entitled to file a petition asking to be

relieved of registration requirements, this particular Defendant is not so entitled.

The trial court erroneously determined that Defendant was required to comply with

lifetime registration and notification rules only after a contradictory hearing

requested by the district attorney. The Louisiana Supreme Court addressed this

scenario in Smith v. State, 10-1140, pp. 11-13 (La. 1/24/12), 84 So.3d 487, 494-96

(footnote omitted):
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We next find the court of appeal erred in holding that Mr. Smith
could not be required to register for life absent a contradictory hearing.
As noted above, under present law the provisions requiring
registration for the lifetime of the offender are La.Rev.Stat.
15:544(B)(2)(c) and (E). Based on the plain language of La.Rev.Stat.
15:544, we find Mr. Smith, as a person twice convicted of a
qualifying sex offense, did not have the right to a contradictory
hearing before the court could impose upon him a lifetime registration
obligation.

After reviewing the relevant provisions of the sex offender law,
we conclude the court of appeal was correct in finding that, before an
offender’s obligation can be extended for life, Subsection (E) of
La.Rev.Stat. 15:544 requires a contradictory hearing and proof that
the offender poses a substantial risk of committing another offense
requiring registration. However, that is not the case before us. Mr.
Smith was not entitled to a contradictory hearing because his
obligation to register for life did not arise under La.Rev.Stat.
15:544(E). Instead, he was subject to lifetime registration as provided
by former La.Rev.Stat. 15:542.1(H)(3)(a), now found in La.Rev.Stat.
15:544(B)(2)(c). Under La.Rev.Stat. 15:544(E), an offender can be
required by the court to register for life, despite the fact that he was
initially required only to register for fifteen or twenty-five years as
provided in La.Rev.Stat. 15:544(A) and (B)(1). But that time period
can only be extended if, after a contradictory hearing, the State proves
the offender poses a substantial risk of committing another offense
requiring registration. As a multiple sex offender, Mr. Smith was
obliged under former La.Rev.Stat. 15:542.1(H)(3)(a), now
La.Rev.Stat. 15:544(B)(2)(c), to register for the duration of his life.
His registration obligation was not modified by the court under
La.Rev.Stat. 15:544(E); instead, he became a lifetime registrant as a
result of the 1999 amendment adding former La.Rev.Stat.
15:542.1(H)(3)(a). Accordingly, no contradictory hearing pursuant to
La.Rev.Stat. 15:544(E) was required.

So it is in the present case. Defendant, as a person twice convicted of a qualifying

sex offense, did not have the right to a contradictory hearing before lifetime

registration and notification obligations could be imposed upon him.

The trial court also erroneously concluded that because the district attorney

did not request a contradictory hearing in this case, Defendant could be relieved of

any further obligation. To the contrary, La.R.S. 15:544 clearly provides that

offenders with prior sex offense convictions, as well as those convicted of

aggravated offenses, are required to register and provide notification for life.

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Louisiana law provides a trial court with no authority to relieve an offender of this

obligation. In fact, La.R.S. 15:542(F)(1) provides in pertinent part:

[T]he sex offender registration and notification requirements required
by this Chapter are mandatory and shall not be waived or suspended
by any court. Any order waiving or suspending sex offender
registration and notification requirements shall be null, void, and of no
effect.

Furthermore, even if Defendant were a member of the category of sex

offenders entitled to seek relief from registration requirements, he must do so by

filing a petition in a court of proper jurisdiction. He would have to comply with

any pertinent service and notification requirements with regard to the appropriate

District Attorney’s Office, Louisiana Department of Public Safety and Corrections,

Office of State Police, and Louisiana Department of Justice, Office of Attorney

General. Defendant’s motion to clarify his sentence did not comply with these

procedural requirements.

We find clear error in the ruling of the trial court in ordering that Defendant

be relieved of his statutorily mandated sex offender registration and notification

requirements. However, we find no error in the trial court’s determination that

Defendant has not been deprived of his constitutionally guaranteed rights under the

federal and state constitutions.

Accordingly, we hereby reverse the judgment rendered by the trial court.

Costs of this appeal are assessed to Randolph Marinoni.

REVERSED.

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