Sheesley v. State

437 P.3d 830

Tosha Leigh SHEESLEY, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-18-0206

Supreme Court of Wyoming.

March 19, 2019

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel. Argument by Ms. Wilson.

Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Benjamin E. Fischer, Assistant Attorney General. Argument by Mr. Fischer.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

FOX, Justice.

[¶1] Tosha Leigh Sheesley was convicted of one count of third-degree sexual assault. She appeals her conviction, raising substantive due process challenges under the United States and Wyoming Constitutions. We affirm.

ISSUES

1. Was Ms. Sheesley denied her right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution?

2. Was Ms. Sheesley denied her right to due process of law under Article 1, Sections 6, 7, and 36 of the Wyoming Constitution ?

FACTS

[¶2] Tosha Leigh Sheesley was a resident manager of the Casper Re-Entry Center (CRC), an adult community correctional facility in Casper, Wyoming. While employed at the CRC, Ms. Sheesley began a sexual relationship with KJ, a CRC resident. The State charged Ms. Sheesley with two counts of sexual assault in the second degree and one count of sexual assault in the third degree under Wyo. Stat. Ann. §§ 6-2-303(a)(vii) and 6-2-304(a)(iii) (LexisNexis 2015), which prohibit sexual contact between employees and residents of correctional facilities. Ms. Sheesley moved to dismiss the charges, arguing the statutes violated her substantive due process rights under the United States and Wyoming Constitutions. The district court denied the motion, reasoning that the statutes were designed "to protect those who are in a position that, per se, negates consent" and thus, do not violate the United States or Wyoming Constitutions because neither constitution recognizes a fundamental right to nonconsensual sex. The State agreed to dismiss two of the counts against Ms. Sheesley in exchange for a guilty plea to one count of sexual assault in the third degree in violation of Wyo. Stat. Ann. § 6-2-304(a)(iii). Ms. Sheesley pleaded guilty, reserving her right to appeal the denial of her motion to dismiss. The district court imposed a sentence of three to five years imprisonment, suspended on condition that Ms. Sheesley complete three years of supervised probation.

STANDARD OF REVIEW

[¶3] Ms. Sheesley presents a constitutional challenge to Wyo. Stat. Ann. §§ 6-2-304(a)(iii) and 6-2-303(a)(vii). "The question of whether a statute is constitutional is a question of law over which this Court exercises de novo review." Vaughn v. State , 2017 WY 29, ¶ 7, 391 P.3d 1086, 1091 (Wyo. 2017) (quoting Kammerer v. State , 2014 WY 50, ¶ 5, 322 P.3d 827, 830 (Wyo. 2014) ). Statutes are presumed constitutional, and we resolve any doubt in favor of constitutionality. Vaughn , 2017 WY 29, ¶ 7, 391 P.3d at 1091. The party challenging the constitutionality of a statute bears the burden of proving its unconstitutionality beyond any reasonable doubt. Gordon v. State by and through Capitol Bldg. Rehab. , 2018 WY 32, ¶ 12, 413 P.3d 1093, 1099 (Wyo. 2018) (citing Krenning v. Heart Mt. Irrigation Dist. , 2009 WY 11, ¶ 33, 200 P.3d 774, 784 (Wyo. 2009) ).

DISCUSSION

I. Was Ms. Sheesley denied her right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution?

[¶4] Ms. Sheesley argues Wyo. Stat. Ann. §§ 6-2-304(a)(iii) and 6-2-303(a)(vii)¹ are facially invalid because "they proscribe conduct which has been recognized as a protected liberty interest under the Due Process clauses of the Fifth and Fourteenth Amendments to the United States Constitution[ ]" and "reach a substantial amount of lawful conduct—namely, the fundamental liberty interest of private, consensual, sexual relations between adults[.]" The State counters that the statutes cannot be struck down as facially overbroad because "there is no general constitutional doctrine of overbreadth; instead, overbreadth analysis is a limited exception confined to a few doctrinal areas[,]" primarily limited to the First Amendment context.

[¶5] We easily dispose of Ms. Sheesley’s claim under the Fifth Amendment to the United States Constitution. The guarantee of due process of law in the Fifth Amendment restrains federal legislative action. 16B Am. Jur. 2d Constitutional Law §§ 945, 975, Westlaw (database updated February 2019); Massey v. Wheeler , 221 F.3d 1030, 1036 n.1 (7th Cir. 2000) ; Morin v. Caire , 77 F.3d 116, 120 (5th Cir. 1996). Ms. Sheesley challenges state legislation; thus, we analyze her claims under the Fourteenth Amendment. See Massey , 221 F.3d at 1036 n.1.

[¶6] Ms. Sheesley does not challenge the statutes as applied to her, nor could she. By her guilty plea, Ms. Sheesley "admitted all the essential elements of the crime as charged , thereby acknowledging" the factual basis of her conviction. Moore v. State , 912 P.2d 1113, 1115 (Wyo. 1996) (emphasis in original). Wyo. Stat. Ann. §§ 6-2-304(a)(iii) and 6-2-303(a)(vii) clearly proscribe Ms. Sheesley’s conduct, and we conclude that there is a rational basis for prohibiting sexual contact between employees and residents of correctional facilities. Therefore, there is no basis for Ms. Sheesley’s overbreadth challenge to Wyo. Stat. Ann. §§ 6-2-304(a)(iii) and 6-2-303(a)(vii)"as applied to [her] behavior." Moore , 912 P.2d at 1116 (emphasis in original).

[¶7] "When a statute is challenged ... on its face, the court examines the statute not only in light of the complainant’s conduct, but also as it might be applied in other situations." Alcalde v. State , 2003 WY 99, ¶ 13, 74 P.3d 1253, 1259 (Wyo. 2003). A facial challenge is "the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." Gordon , 2018 WY 32, ¶ 12, 413 P.3d at 1099.² "A ‘facial challenge’ [to a statute] is available in only two situations: (1) when the statute reaches a substantial amount of constitutionally protected conduct, and (2) when the statute is shown to specify no standard of conduct at all." Alcalde , 2003 WY 99, ¶ 13, 74 P.3d at 1260 (quoting Ochoa v. State , 848 P.2d 1359, 1363 (Wyo. 1993) ) (alteration in original). The first situation refers to overbreadth doctrine, under which a statute is facially void if, in addition to regulating a non-constitutionally protected area, "it also substantially proscribes activities which involve the exercise of constitutionally protected rights."³ Ochoa , 848 P.2d at 1363-64 (citing Broadrick v. Oklahoma , 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973) ). The State correctly observes that "[a]pplication of the ‘overbreadth doctrine’ has most frequently occurred in the First Amendment’s protection of speech[.]" Ochoa , 848 P.2d at 1363 (citing Laurence H. Tribe, American Constitutional Law § 12-27, at 1022 (2d ed. 1988)). The doctrine originated in Thornhill v. Alabama , which expressly limited its application to the First Amendment context. 310 U.S. 88, 97, 60 S.Ct. 736, 742, 84 L.Ed. 1093 (1940) (stating that a statute is overbroad when it "does not aim specifically at evils within the allowable area of State control but, ... sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press ") (emphasis added). See also Richard H. Fallon, Jr., Making Sense of Overbreadth , 100 Yale L.J. 853 (1991) (describing overbreadth as a First Amendment doctrine). We, too, have described overbreadth as a First Amendment doctrine. Rutti v. State , 2004 WY 133, ¶ 11, 100 P.3d 394, 401 (Wyo. 2004) ("The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges.") (quoting Virginia v. Hicks , 539 U.S. 113, 118-120, 123 S.Ct. 2191, 2196-97, 156 L.Ed.2d 148 (2003) ).

[¶8] Despite overbreadth doctrine’s ostensible confinement to First Amendment challenges, the United States Supreme Court has not always strictly adhered to that limitation. See, e.g. , Berger v. New York , 388 U.S. 41, 44, 87 S.Ct. 1873, 1876, 18 L.Ed.2d 1040 (1967) (holding a statute "too broad in its sweep ... and [ ], therefore, violative of the Fourth and Fourteenth Amendments."); Hodel v. Irving , 481 U.S. 704, 724, 107 S.Ct. 2076, 2087, 95 L.Ed.2d 668 (1987) (Stevens, J., concurring) (criticizing the majority for striking down statute challenged on Fifth Amendment grounds based "on the implicit adoption of an overbreadth analysis that has heretofore been restricted to the First Amendment area"). Lower courts have likewise acknowledged overbreadth outside of the First Amendment context, although not consistently. Compare, e.g. , Pottinger v. City of Miami , 810 F.Supp. 1551, 1577 (S.D. Fla. 1992) (holding ordinances prohibiting sleeping or sitting on sidewalks or in parks overbroad as applied because they "reach[ed] a substantial amount of ... constitutionally protected rights under the eighth amendment and ... the equal protection clause of the fourteenth amendment"), with Joyce v. City and County of San Francisco , 846 F.Supp. 843, 862 (N.D. Cal. 1994) (rejecting overbreadth claim challenging ordinances that prohibited, among other things, sleeping in public parks because "[o]verbreadth is a challenge which may be successfully leveled only where First Amendment concerns are at stake"). For our part, although we have stated that overbreadth doctrine applies equally when constitutional protections outside the First Amendment are involved, Ochoa , 848 P.2d at 1363, we have never invalidated a statute on overbreadth grounds for infringing on a non-First Amendment r...