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Quatrevingt v. State

Court of Appeals of Louisiana, First Circuit

February 8, 2018

KEVIN QUATREVINGT
v.
STATE OF LOUISIANA, THROUGH THE HONORABLE JEFF LANDRY, ATTORNEY GENERAL

         On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. 654843 The Honorable William A. Morvant, Judge Presiding

          Kevin M. Quatrevingt Lacombe, Louisiana Plaintiff/ Appellant In Proper Person

          Adrienne E. Aucoin Baton Rouge, Louisiana Attorneys for Intervenor/ Appellee State of Louisiana, through the Department of Public Safety and Corrections, Public Safety Services, Office of State Police, Bureau of Criminal Identification and Information

          Jeff Landry Attorney General Emma J. DeVillier Erica M. Schutz Assistant Attorneys General Baton Rouge, Louisiana Attorneys for Defendant/ Appellee State of Louisiana

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

          PENZATO, J.

         Appellant, Kevin Quatrevingt, appeals a judgment of the trial court sustaining the Appellee/Intervenor's, State of Louisiana, through the Department of Public Safety and Corrections, Public Safety Services, and Office of State Police (DPSC), peremptory exception raising the objection of peremption and dismissing his action with prejudice. For the reasons that follow, we affirm the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY

         This matter arises out of an incident wherein Appellant pled guilty on January 24, 2006, in Military Court to one count of conduct prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces under Article 134 of the Uniform Code of Military Justice (UCMJ). The conduct for which Appellant pled guilty arose from possession of child pornography, resulting in his conviction and incarceration for approximately nine months in Texas. He was released on October 21, 2006. Upon his release from incarceration for his military conviction, Appellant was given notice by the federal government of his obligation to register as a sex offender in any state in which he would reside. On October 21, 2006, Appellant returned to Louisiana and was notified by the State that he was required to register as a Tier I sex offender.[1], [2]

         Although Appellant claims he complied with the registration system until April 2010, he was arrested in the Parish of St. Tammany on May 7, 2007, for failing to register as a sex offender between November 8, 2006, and May 3, 2007, in violation of La. R.S. 15:542. On November 3, 2008, Appellant pled guilty to the offense in the matter entitled "State of Louisiana v. Kevin Michael Quatrevingt, " Docket No. 438897, Div. "E" in the 22nd Judicial District Court for St. Tammany Parish, and was sentenced to serve two years at hard labor.

         On April 22, 2010, DPSC, through Public Safety Services, Office of State Police, Bureau of Criminal Identification and Information (Bureau), provided written notice to Appellant that the Bureau had determined that his military conviction was comparable to and would equate to a conviction or adjudication of Possession, Production and/or Distribution of Child Pornography pursuant to La. R.S. 14:81.1. The Bureau explained that pursuant to La. R.S. 15:544 and La. 15:542.1 Appellant was determined to be a Tier II offender which required him to register in Louisiana for a period of twenty-five years from the date of his initial registration and perform in-person registration renewals every six months.[3] The notice set forth the manner in which Appellant could appeal the Bureau's determination by submitting a written request for an administrative hearing pursuant to La. R.S. 49:950 et seq. within one year from the Bureau posting its determination on the State Sex Offender and Child Predator Registry (Registry). The Bureau, which was mandated to maintain the Registry pursuant to La. R.S. 15:578(A)(7), posted its determination as to Appellant on April 22, 2010. Appellant did not submit a request for an administrative appeal.

         On June 14, 2010, Appellant was arrested for a second offense of failing to register as a sex offender between May 17, 2010, and June 14, 2010, in the Parish of St. Tammany for violating La. R.S. 15:542 and La. R.S. 15:542.1.4. On October 3, 2013, Appellant filed a motion to quash the prosecution against him in the matter entitled "State of Louisiana v. Kevin Michael Quatrevingt, " Docket No. 493, 820, Div. "F" in the 22nd Judicial District Court for St. Tammany Parish (22nd JDC criminal case). The trial court conducted a hearing on the motion to quash on February 6, 2014, and granted the motion ruling that the military conviction of Appellant was not comparable to a sex offense in Louisiana. In the trial court's oral ruling it stated, "In examining actually what [Appellant] pled guilty to, [Appellant] pled guilty to it under the general article, not to a specific crime which would annunciate a sex offense."

         Following the granting of the motion to quash the prosecution stemming from his June 14, 2010 arrest, Appellant attempted to have his name removed from the Registry and the sex offender label removed from his driver's license. The Bureau refused to remove his name, and Appellant filed in the 22nd JDC criminal case a motion for clarification and request for order for removal from Registry. On July 17, 2014, the trial court determined that it had no jurisdiction to have Appellant's name removed from the Registry and denied relief therein.

         On September 16, 2015, Appellant, seeking to have his name removed from the Registry, filed a petition and incorporated memorandum for writ of mandamus and declaratory judgment in the matter entitled "Kevin Quatrevingt v. State of Louisiana, " Docket No. 2015-13724, Div. "I" in the 22nd Judicial District Court for St. Tammany Parish (22nd JDC civil case). The State filed several exceptions in the 22nd JDC civil case, and the trial court sustained the exceptions of improper subject matter jurisdiction and improper venue, stating that any concerns regarding the Registry were to be brought in the 19th Judicial District Court. Appellant filed a writ application, which this court denied as to the exception of venue and granted as to the exception of subject matter jurisdiction. The supreme court subsequently denied Appellant's writ.

         On January 27, 2017, Appellant filed the subject of the present matter, an "Emergency Petition for Extraordinary Relief in the Nature of a Writ of Mandamus, Temporary Restraining Order, Stay Order, and Preliminary Injunction, " in Docket No. 654, 843, Div. "23" in the 19th Judicial District Court, Parish of East Baton Rouge. Appellant sought an injunction and requested that a writ of mandamus be issued, directed to the Attorney General, to cease infringing upon his constitutional and codal rights, to enjoin the Attorney General from ignoring the ruling made in the 22nd JDC criminal case, to cease any and all present or future attempt to require him to register as a sex offender, and to cease any and all present or future attempt to arrest him for failing to register as a sex offender or any other sex offender related arrest. The Bureau was not named a party by Appellant, but filed a petition to intervene, which was granted by the trial court.

         The State, through the Office of Attorney General, filed "State's Dilatory Exceptions of Nonconformity with Petition Requirements of La. C.C.P. art. 891; Unauthorized Use of Summary Proceedings for a Petition for Permanent Injunction; and Improper Cumulation of Summary and Ordinary Proceedings; and Peremptory Exceptions of Peremption; Nonjoinder of an Essential Party Pursuant to La. C.C.P. art. 641; and No Cause of Action." The State also filed an "Opposition to Preliminary Injunction and Writ of Mandamus." The Bureau maintained that at the first hearing on February 14, 2017, it adopted the exceptions filed by the Attorney General's Office, and its post-hearing memorandum was filed on behalf of the Bureau, a division of DPSC.

         At the April 10, 2017 hearing, the trial court granted the peremptory exception raising the objection of peremption and dismissed Appellant's petition with prejudice. The Appellant filed a motion to reconsider with the trial court on April 12, 2017, which the trial court denied. The trial court signed a judgment in accordance with its oral ruling on May 2, 2017. It is from this judgment that Appellant appeals.

         ASSIGNMENT OF ERRORS

         Appellant claims that the trial court committed the following errors: (1) failing to treat this matter as a writ of mandamus pursuant to La. R.S. 15:544.1 and instead treating it as an appeal of either DPSC's 2010 determination or an appeal by the DPSC of the 2014 ruling of the 22nd JDC criminal case; (2) granting the peremptory exception raising the objection of peremption; (3) failing to apply the doctrine of res judicata; and (4) failing to issue a writ of mandamus to order DPSC to remove him from the Registry.

         STANDARD OF REVIEW

         A judgment granting a peremptory exception is generally reviewed de novo, because the exception raises a legal question. Metairie III v. Poche' Const., Inc., 2010-0353 (La.App. 4 Cir. 9/29/10), 49 So.3d 446, 449, writ denied, 2010-2436 (La. 9/16/11), 69 So.3d 1138. However, when exceptions of prescription or peremption have evidence introduced at a hearing, the trial court's finding of fact on the issue is subject to the manifest error standard of review. Lomont v. Bennett, 2014-2483 (La. 6/30/15), 172 So.3d 620, 627, cert, denied, ___U.S.___, 136 S.Ct. 1167, 194 L.Ed.2d 178 (2016); Southern Ins. Co. v. Metal Depot, 2010-1899 (La.App. 1 Cir. 6/10/11), 70 So.3d 922, 925, writ denied, 2011-1763 (La. 10/14/11), 74 So.3d 215. Thus, if the trial court's findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Lomont, 172 So.3d at 627; Stobart v. State through Dept. of Transp. andDev., 617 So.2d 880, 882-83 (La. 1993).

         LAW AND DISCUSSION

         Peremption is a period of time fixed by law for the existence of a right. The right is extinguished upon the expiration of the peremptive period. La. C.C. art. 3458. When the peremptive period has run, the cause of action itself is extinguished unless timely exercised. State Through Div. of Admin, v. Mclnnis Bros. Const, 97-0742 (La. 10/21/97), 701 So.2d 937, 939. Peremption may not be renounced, interrupted, or suspended. La. C.C. art. 3461.

         Peremption is considered a peremptory exception. La. C.C.P. art. 927(A)(2). Public policy requires that rights to which peremption periods attach are to be extinguished after passage of a specified period. Robinson v. Wayne and Beverly Papania and Pyrenees Investments, LLC, 2015-1354 (La.App. 1 Cir. 10/31/16), 207 So.3d 566, 580. Additionally, a peremptive statute totally destroys or extinguishes the previously existing right with the result that, upon expiration of the prescribed period, a cause of action or substantive right no longer exists to be enforced. See Borel v. Young, 2007-0419 (La. 11/27/07), 989 So.2d 42, 49; Pounds v. Schori,377 So.2d 1195, 1198 (La. 1979), superseded by statute on other grounds, La. Acts 2005, No. 192, § 1, as recognized in, Pociask v. Moseley, 2013-0262 (La. 6/28/13), 122 So.3d 533, 539. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Carter v. Hay good, 2004-0646 (La. 1/19/05), 892 So.2d 1261, 1267. Peremption has been likened to prescription; namely, it is prescription that is not subject to interruption or ...


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