Herring v. State

David Charles Herring

v.State of Alabama

CR-10-0019

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2010-2011

REL: May 27, 2011

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Jefferson Circuit Court

(Bessemer Division)

(CC-09-1676)

WINDOM, Judge.

Pursuant to a plea agreement with the State, David Charles Herring, a convicted sex offender, pleaded guilty to establishing a residence or other living accommodation where a minor resides, a violation of § 15-20-26(c), Ala. Code 1975,a part of the Community Notification Act, § 15-20-20 et seq., Ala. Code 1975 ("the CNA"). He was sentenced, pursuant to the plea agreement, to three years in prison. The circuit court suspended the sentence and placed Herring on probation for one year. Before pleading guilty, Herring expressly reserved the right to appeal the circuit court's denial of his pretrial motion to dismiss the indictment against him¹ on the ground that §§ 15-20-26(c)(3) and (c)(4), Ala. Code 1975,² are unconstitutional.

The record indicates that in 1997, Herring was convicted of sexual abuse in the first degree, see § 13A-6-66, Ala. Code 1975.³ The victim was his 10-year-old niece who was residing with him and his wife at the time. The record also reflectsthat between 1999 and 2009, Herring reported his residence to authorities to be the residence where he and his wife lived with his two biological children, who were born in 1995 and 1998, respectively.

Herring argues on appeal, as he did in his motion to dismiss, that §§ 15-20-26(c)(3) and (c)(4), Ala. Code 1975, are unconstitutional because they violate his rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution. He contends that he has a fundamental right to "'personal choice in matters of marriage and family life'" (Herring's brief, at 20 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977), quoting in turn, Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974))), and that §§ 15-20-26(c)(3) and (c)(4), Ala. Code 1975, unconstitutionally infringe on that right by prohibiting him from residing with his biological children. He also contends that he is being treated differently from other similarly situated sex offenders in violation of equal protection. According to Herring, §§ 15-20-26(c)(3) and (c)(4), Ala. Code 1975, are not narrowly tailored to serve a compelling state interest and, thus, fail to satisfy thestrict-scrutiny test required under both a due-process and equal-protection analysis of a statute that intrudes on a fundamental right.

On the other hand, the State argues that Herring has not clearly asserted a fundamental right that is being infringed by §§ 15-20-26(c)(3) and (c)(4), Ala. Code 1975, because the State believes that although Herring has a fundamental right to be involved with his children's lives, that right is not "unduly burdened by the CNA" and §§ 15-20-26(c)(3) and (c)(4), Ala. Code 1975, only "impact[] ... his choice of where he can live." (State's brief, at 12.) The State further argues that Herring is not part of a suspect class and that he is not being treated differently than other similarly situated sex offenders in an unconstitutional manner. Thus, the State concludes, §§ 15-20-26(c)(3) and (c)(4), Ala. Code 1975, must pass only the rational-basis test to be constitutional, and they are, according to the State, rationally related to a legitimate state interest.

Standard of Review

Generally, an appellate court's "review of constitutional challenges to legislative enactments is de novo," Richards v.Izzi, 819 So. 2d 25, 29 n.3 (Ala. 2001), and "acts of the legislature are presumed constitutional." State ex rel. King v. Morton, 955 So. 2d 1012, 1017 (Ala. 2006). "[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of government." Alabama State Fed. of Labor v. McAdory, 24 6 Ala. 1, 9, 18 So. 2d 810, 815 (1944). "[I]t is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of fundamental law." Id. Moreover, "[t]he party mounting a constitutional challenge to a statute bears the burden of overcoming [the] presumption of constitutionality." Holmes v. Concord Fire Dist., 625 So. 2d 811, 812 (Ala. Civ. App. 1993).

"If the challenged government action [infringes upon] a fundamental right, ... a court will review that challenged action applying strict scrutiny." Price-Cornelison v. Brooks, 524 F. 3d 1103, 1109 (10th Cir. 2008) (citations omitted). Under the strict-scrutiny analysis, a statute that infringes upon a fundamental right is presumed to be unconstitutional,and the State bears the burden "to prove that the [infringment] 'furthers a compelling interest and is narrowly tailored to achieve that interest.'" Citizens United v. Federal Election Comm'n, _ U.S. _, _, 130 S. Ct. 876, 898 (2010) (quoting Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 464 (2007)).

Analysis

The Fourteenth Amendment to the United States Constitution provides, in relevant part, that no State shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The United States Supreme Court has recognized that the Due Process Clause "guarantees more than fair process, and the 'liberty' it protects includes more than the absence of physical restraint." Washington v. Glucksberg, 521 U.S. 702, 719 (1997). The clause includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests," id. at 720, and "forbids the government to infringe upon certain 'fundamental' liberty interests at all, no matter what process is provided, unlessthe infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 302 (1993). The Equal Protection Clause requires "that all persons similarly situated should be treated alike," City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985), but "does not compel uniformity in the face of difference." State v. Spurlock, 393 So. 2d 1052, 1056 (Ala. Crim. App. 1981). In other words, the Equal Protection Clause

"does not prohibit legislation which is limited either in the objects to which it is directed, or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed."

Hayes v. Missouri, 120 U.S. 68, 71-72 (1887).

Section 15-20-26(c), Ala. Code 1975, provides:

"(c) No adult criminal sex offender shall establish a residence or any other living accommodation where a minor resides. Notwithstanding the foregoing, an adult criminal sex offender may reside with a minor if the adult criminal sex offender is the parent, grandparent, or stepparent of the minor, unless one of the following conditions applies:

"(1) The adult criminal sex offender's parental rights have been or are in the process of being terminated as provided by law.

"(2) The adult criminal sex offender has been convicted of any criminal sex offense in which any of the offender's minor children, grandchildren, or stepchildren were the victim.

"(3) The adult criminal sex offender has been convicted of any criminal sex offense in which a minor was the victim and the minor resided or lived with the offender at the time of the offense.

"(4) The adult criminal sex offender has ever been convicted of any criminal sex offense involving a child, regardless of whether the offender was related to or shared a residence with the child victim."⁴

"Residence" is defined in Black's Law Dictionary 1335 (8th ed. 2004), in relevant part, as:

"The act or fact of living in a given place for some time ... The place where one actually lives, as distinguished from a domicile ... Residence usu[ally] just means bodily presence as an inhabitant in a given place; domicile usu[ally] requires bodily presence plus an intention to make the place one's home. A person thus may have more than one residence at a time but only one domicile. ... A house or other fixed abode; a dwelling."

In Sellers v. State, 935 So. 2d 1207, 1213 (Ala. Crim. App. 2005), this Court defined the term "living accommodation" in§ 15-20-26(c), Ala. Code 1975, as "any overnight lodging, either temporary or permanent."⁵

"The United States Supreme Court has established two tests to determine whether a statute draws a classification which violates the Equal Protection Clause of the Fourteenth Amendment or whether that statute denies a person substantive due process of law. The Court applies the 'strict scrutiny test' where the classification is based on 'suspect criteria' or affects some fundamental right. The traditional indicia of a suspect class are: (1) A class determined by characteristics which are solely an accident of birth, Frontiero v. Richardson, 411 U.S. 677, 686, 93 S. Ct. 1764, 1770, 36 L. Ed. 2d 583 (1972); and (2) A class 'saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process,' San Antonio School District v.Rodriguez, 411 U.S. 1, 28, 93 S. Ct. 1278, 1294, 36 L. Ed. 2d 16 (1972). The classifications

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