STATE v. MILES (2018)

WRIT GRANTED

Applicant, Orleans Public Defenders (“OPD”), seeks supervisory review of the district court's July 23, 2018 judgment, which denied OPD's Motion to be Relieved of Appointment for Sex Offender Assessment Panel Hearing (“Motion to Withdraw”). For the reasons that follow, we grant the writ.

FACTUAL AND PROCEDURAL HISTORY

Troy Miles (“Defendant”) pled guilty on March 7, 2005 to one count of sexual battery. Upon his adjudication as a multiple offender, he was sentenced to fifteen years at hard labor. At the time of his guilty plea, he was represented by OPD.¹

As Defendant neared his release date, the Sex Offender Assessment Panel (“SOAP”), which reviews enhanced registration requirements for certain sex offenders, determined that Defendant should be classified as a sexually violent predator (“SVP”). See La. R.S. 15:560.² In accordance with La. R.S. 15:560.2(H) ³ , SOAP referred its recommendation to the district court. Upon receipt of the recommendation, the district court scheduled a contradictory hearing and appointed counsel to represent Defendant.⁴ After finding Defendant was indigent, the district court appointed OPD to represent Defendant, and scheduled the SOAP hearing date on August 3, 2018.

On July 23, 2018, OPD filed its Motion to Withdraw. OPD argued that SOAP hearings are civil/administrative proceedings, not criminal proceedings. As such, the hearings fall outside the scope of the mandate provided for in the Louisiana Public Defender Act (the “LPDA”), which authorizes OPD to represent indigent criminal defendants. See La. R.S. 15:142.⁵ Premised on its contention that SOAP hearings are civil in nature, OPD also argued that the Orleans Parish Criminal District Court (“Criminal District Court”) lacks jurisdiction to appoint counsel. The district court heard argument on the Motion to Withdraw on July 23, 2018 and denied the motion.

OPD timely filed a supervisory writ with this Court to review the judgment and requested a stay of the proceedings. This Court granted the request for stay and docketed this matter for a full review on the merits of the writ application.

DISCUSSION

First, OPD argues that the district court erred by not allowing it to withdraw as counsel of record for Defendant in a SOAP hearing. OPD contends that the LPDA's requirement for it to represent criminal indigent persons extends only to those offenses punishable by imprisonment.⁶ As such, SOAP hearings, which are non-criminal/civil proceedings, falls outside of its statutory duty. We agree.

The LPDA was enacted in recognition of this State's obligation under the constitutions of the United States and the State of Louisiana for persons to have counsel at every stage of the proceedings for offenses punishable by imprisonment. See La. R.S. 15:142(A). Thus, OPD, at the public's expense, provides representation to all criminal indigent persons at each critical stage of the proceedings. La. R.S. 15:142(B)(5). In contrast, as set forth in State v. Golston, 2010-2804, p. 16 (La. 7/1/11), 67 So.3d 452, 463, the stated purpose of the SOAP scheme is non-punitive. See also State ex rel Olivieri v. State, 2000-0172, p. 20 (La. 2/21/01), 779 So.2d 735, 747 (where the Supreme Court opined that the Legislature's intent in enacting sex registration laws was “to alert the public for the purpose of public safety, a remedial intent, not to punish convicted sex offenders.”).

In State v. Singleton, 2015-1099 (La. App. 4 Cir. 5/25/16), 216 So.3d 985, the Court was faced with a similar issue. OPD filed a motion to withdraw after being appointed to represent the defendant in a post-conviction proceeding. OPD contended that the LPDA did not authorize its appointment in non-capital post-conviction proceedings; and, as in this case, OPD argued that the appointment exceeded its statutory mandate. At the outset, the Singleton Court acknowledged that as a prisoner in a post-conviction proceeding, the defendant had no constitutional right to appointed counsel, although the right to counsel attached once the district court ordered an evidentiary hearing. Singleton, 2015-1099,216 So.3d at 991.

Continuing its analysis, the Singleton Court reviewed the legislative framework and legislative findings provided by the LPDA. The Court reasoned that OPD's appointment in a non-capital post-conviction proceeding went beyond its statutory authority as the appointment did not fall into a category for which the LPDA provides for public defender services. Singleton, 2015-1019, p. 11, 216 So.3d at 992. The Singleton Court further opined that “[i]f the legislature desired to allow for the appointment of public defenders in non-capital post-conviction cases, it could have easily done so.” Id. Accordingly, the Singleton Court found that the district court's appointment of OPD to represent the defendant in a non-capital post-conviction case constituted legal error and reversed the appointment by the district court.

Similar reasoning applies to the present matter. Public defender services or indigent defender services, as defined within the LPDA, means “the providing of legal services to indigent persons in criminal proceedings in which the right to counsel attaches under the United States and Louisiana constitutions.” La. R.S. 15:143(9). Representation is provided for those persons considered “indigent and charged with an offense punishable by imprisonment.” See La. R.S. 15:142(A). Although SOAP statutes entitle Defendant to appointed counsel, SOAP hearings—non-punitive proceedings which do not involve incarceration—simply do not fall into any category of cases which requires public defender representation by OPD. Accordingly, the district court committed legal error when it appointed OPD to represent Defendant and denied OPD's Motion to Withdraw.

Secondly, OPD argues that because SOAP hearings are non-criminal and civil in nature, Criminal District Court lacks jurisdiction to appoint counsel in SOAP hearings. The question of whether jurisdiction properly lies with Criminal District Court falls outside the scope of OPD's motion to be relieved of the appointment and is not procedurally proper before this Court.

CONCLUSION

The district court erred in appointing OPD to represent Defendant at his SOAP contradictory hearing. Based on the foregoing reasons, we grant OPD's writ and vacate its appointment. This matter is remanded to the district court for further proceedings consistent with this writ disposition. The stay order previously granted in this matter is hereby lifted.

FOOTNOTES

1.   In 2005, OPD was known as the Orleans Indigent Defender Program (“OIDP”).

2.   La. R.S. 15:560 provides:A. The Legislature of Louisiana has long recognized the need to protect our most innocent and defenseless citizens from sex offenders, sexually violent predators, and child predators and has enacted statutory provisions to provide one of the most extensive sex offender registration and notification laws in the United States.B. The legislature has enacted provisions requiring lifetime registration of sexually violent predators and has legislatively created the sexually violent predator commission as the entity which would determine which offenders are sexually violent predators. However, those provisions have rarely been utilized.C. The legislature finds that sexually violent predators and child sexual predators often pose a high risk of engaging in sex offenses and crimes against victims who are minors after being released from incarceration or commitment and that the protection of the public from sexually violent predators is of paramount governmental interest.D. In consideration of the potentially high rate of recidivism and the harm which can be done to the most defenseless members of the public by sexually violent predators and child sexual predators, the state has a compelling interest in ensuring compliance with the provisions of law regarding sex offender registration and notification to protect the public from harm as those offenders are released from incarceration and are returned to their communities.E. The state also has a compelling interest in using its limited resources wisely and monitoring those offenders who pose the greatest risk to the health and safety of our citizens.F. Therefore, it is the policy of this state to facilitate the identification of those offenders who are sexually violent predators and child sexual predators and to require that those offenders register as sex offenders for life to ensure compliance with those registration and notification requirements by enactment of sex offender assessment panels to evaluate all sex offenders prior to their release from incarceration as provided for in this Chapter.

3.   La. R.S. 15:560.2(H) provides in pertinent part that “[t]he panel shall conduct its review and, if a determination is made that the offender may be a sexually violent predator or a child sexual predator, the panel shall forward the recommendation to the sentencing court.”

4.   La. R.S. 15:560.2(I) provides:I. Upon receiving a recommendation from the panel, the court, on its own motion, shall schedule a hearing to review the recommendation that an offender is a sexually violent predator or a child sexual predator. Notice of the hearing shall be served on the offender where he is located, his attorney of record, the office of the district attorney who prosecuted the offender for the underlying offense, and the victim of the underlying offense provided that the victim is registered pursuant to the provisions of R.S. 46:1841 et seq. The notice shall inform the offender that he has the right to be present at the hearing, that he has the right to present evidence, that he has a right to counsel, and that if indigent, an attorney will be appointed to represent him. If, after a contradictory hearing, the court finds by clear and convincing evidence, that the offender is a sexually violent predator or a child sexual predator, the offender shall be ordered to comply with the provisions of R.S. 15:560.3 et. seq.

5.   La. R.S. 15:142 provides in pertinent part:A. Article I, Section 13 of the Constitution of Louisiana, in accordance with the state's obligation under the Sixth and Fourteenth Amendments of the United States Constitution, provides that at “each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment”. Section 13 further mandates that the legislature shall provide for “a uniform system for securing and compensating qualified counsel for indigents”. Accordingly, it is the obligation of the legislature to provide for the general framework and the resources necessary to provide for the delivery of public defender services in this state.B. In recognition of its mandates under both the United States and Louisiana constitutions, the legislature enacts the Louisiana Public Defender Act of 2007 to provide for all of the following:* * *(4) Providing that the right to counsel is delivered by qualified and competent counsel in a manner that is fair and consistent throughout the state.(5) Providing for statewide oversight with the objective that all indigent criminal defendants who are eligible to have appointed counsel at public expense receive effective assistance of counsel at each critical stage of the proceeding.* * *C. The legislature recognizes that the uniform application of statewide standards and guidelines to be established by the Louisiana Public Defender Board is an important means of achieving a more consistent delivery of quality representation throughout the state. To that end, it is the express intention of the legislature that the Louisiana Public Defender Act of 2007 is designed, to the extent practicable and feasible, to provide for the delivery of public defender services which meet the requirements established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and its progeny as adopted by the Louisiana Supreme Court.D. The legislature recognizes that the Louisiana Supreme Court in State v. Citizen, 898 So.2d 325 (La. 2005) authorized trial judges to halt prosecutions in capital cases, upon motion of defense counsel, until adequate funding is provided to ensure an adequate defense, and it is the express intention of the legislature to ensure adequate resources, consistent with the Citizen opinion, which allow prosecutions in such cases to continue to conclusion resulting in verdicts that are fair, correct, swift, and final.E. It is the express intention of the legislature that the Louisiana Public Defender Act of 2007 is designed to provide effective legal representation to criminal defendants who are unable to afford an attorney, consistent with the right to counsel in our criminal courts, mindful of the need for law and order and an appreciation of victims' rights․

6.   The State takes no position as to whether OPD or a private attorney should be appointed to represent the defendant in a SOAP hearing.

Judge Paula A. Brown