*1 Jeffer- remanded matter is proceedings further son Circuit opinion. with this
consistent concur. All sitting.
All Kentucky,
COMMONWEALTH
Appellant, NASH, Appellee.
No. 2010-SC-000065-DG. Kentucky.
Supreme Court
May General, Attorney James Conway,
Jack Shackelford, Attorney Assistant Coleman General, Office of Criminal Frankfort, KY, Appellant. Counsel Potter, Public Ad- Assistant Samuel N. Advocacy, vocate, of Public Department Frankfort, KY, Counsel *2 by felony) of the D and a Opinion being second-degree Court Justice per- offender, SCHRODER. felony sistent for which he re- five-year credits, a ceived sentence. With Nash, convicted, Appellee, he served out his sentence and was re- plea, pursuant guilty to a conditional of a on leased December 2001. Kentucky’s violation Sex first offense of (a Registration D Offender Act Class felo- On January Fayette a County second-degree persistent a ny), being and jury an grand charg- returned indictment2 felony offender. Because ing Appellee non-compliance -withKen- offender, a sex as tucky’s Sex Registration Offender Act we vacate the of Court of (SORA),3 17.510(11). in of violation KRS and likewise vacate the con- we The indictment in alleged, pertinent part: victions, and remand to trial court with instructions dismiss the indictment. Count 1: On or about the 25th of day October, 2006, Fayette in County, Ken
FACTS tucky, the above named defendant com burglary of in convicted mitted the offense of Failure Comply (Class degree felony) the third D on June With Sex by Offender fail one-year which he received a ing to notify appropriate law en credits, all he sentence. With his served forcement of agency change his of ad February out sentence on 1993. his He dress, having been convicted as a sex was convicted of two counts of third-de- offender in Fayette County, in Kentucky (Class felonies) gree sodomy D on Decem- having previously and been convict 14, 1993. a three-year ber He received in Fayette ed District Court of Failure count, sentence on each to be served con- to Comply Registra With Sex Offender secutively, years. for a total Appel- of six tion in 2006 2005[.] and paroled lee was November and offense, As a in in revoked March of 1997. He served out felony.4 was a of Count Class Count 2 the remainder of his and charged Appellee with be- released October 1997.1 ing persistent a second-degree felony was convicted of receiving of- (a (PFO II) stolen over value property in fender based on previous $300 entirely complimented attorneys 1. The record is not clear on acting pro- some both facts, Attorney dates General, but the Assistant fessionally presenting and for "the truth.” Shackelford, display James C. of judicial For economy, accepting the Court is Court, provided opposing candor coun- accurate, supplemental record as or "the "Kentucky sel and Court with the Correc- truth,” missing of the facts without the need Appel- Resident tions Record Card[s]” fact, stipulations for further nor the need beginning argument, lee. At of oral for a remand to the trial court for further (treated filing Chief Justice announced the as findings purposes of fact. For of this we record) supplement motion would be accepting are the "Resident Record as Cards” granted accepted into the record. Coun- missing reliable evidence of the facts. Potter, Appellee, public- sel for Samuel N. ly filing thanked Mr. Shackelford for his Fayette Circuit Case 2. No. 07-CR- gave candor. "Resident Record Cards” parties and the Court the facts needed missing hazy that were from the record. seq. KRS 17.500 et counsel, During argument, oral as well as the assuming discussed the case the "Resi- 17.510(11). Record dent Cards” were accurate. At the KRS argument, end oral Chief Justice Minton Appeals reversed The Court receiving prop- stolen felony conviction opin- an lee’s conviction 07-CR-00034 erty. 22, 2010, concluding January ion rendered filed a mo- On March *3 amend- of the 2006 SORA application regis- for the amend tion to (which on penalty increased the ments a A misdemeanor to Class tration violation under current or register to those him of to application that the grounds a A to law from a Class misdemeanor prior un- to SORA5 was amendments the 2006 law post felony)8 D was an ex Class facto grounds. on ex constitutional 22, 2010, On to applied as Appellee’s motion. trial court denied The Buck v. rendered Common- this Court a entered Appellee August On wealth, (Ky.2010), uphold- comply to failure to guilty plea conditional constitutionality of the 2006 ing the Act, Registration Offender with the Sex to SORA. The Common- amendments (a PFO felony),6 D Class first offense review, discretionary requested wealth II, appeal to from reserving right granted on October which this Court amend of his motion to trial court’s denial argues Appellee this 2010. Before (Fayette Circuit Court the indictment. he was never re- the first time that 07-CR-00034). September No. Case register for the 1993 conviction quired to 13, 2007, five-year received a sen- any or amendments under the 1994 SORA to felony, D enhanced for the Class tence thereto. is correct. II. The trial court years by the PFO ten years. for five probated the sentence Registration Act Kentucky’s Sex Offender (07-CR-00034) subject of the is the case this case we need to fully To understand appeal herein. for certain original requirement look at the and the amend- register, sex offenders to that in The record indicates thereto, seq. KRS 17.500et ments to date. failing comply again lee was convicted (another Kentucky’s commonly referred to as SORA, D is first offense with Law,”9 or the “Sex five-year “Megan’s version of he received a felony), for which (SORA).10 The Act” pri- Offender consecutively with his sentence to ran by the General sentence, adopted version was a total of fifteen first ten-year or version, Assembly 1994.11 Under (Fayette Court Case years to serve Circuit 08-CR-00075).7 sex crimes12 convicted of certain probation persons Appellee’s No. Act, July date re- ten-year sentence was on the earlier after effective 199k., peri- a register be re- were is scheduled to voked. after their final release years od of ten out sometime between leased on a serve etc. Fail- 11, 2021, parole, probation, prison, from July September false, mislead- earned, register, providing ure to or etc. depending upon credits Commonwealth, 72 Hyatt v. S.W.3d Ky. ch. 182. Acts (Ky.2002). agreement, plea 6. Per the (Class felony), D rather amended to a first 392, § Acts (Class felony), offense. than ch. 392. different dates for 7. The record shows two July 2008 and this conviction—June the out- 1(4). date does not affect 2008. Either come of this case. subsequent offense. 8.Class C for committed,
ing, incomplete or information deemed tration on the offense and re- only The Act quired a Class A misdemeanor.13 the registrant on or convicted, applied qualifying to those the day before of release.19 This amend- sex crime the effective date of the placed residency ment also restrictions on after Act, July of the re- regardless registrant probation, parole, released on lease date.14 was convicted of supervised release.20 penalty lk, the sex at issue crimes on December failing to register, providing or for false or wording the clear Under information, misleading increased Act, register upon he from a Class A misdemeanor to a Class D conviction or release. felony.21 applied The 2000 amendment *4 who, “all persons after the effective date of 1998,
In
was amended.15 “The
SORA
11, 2000],22
this Act [April
required
are
change ...
principal
was the creation of a
...
under
this Act
to
regis-
become
potential
classification as
recidi-
trants!.]”23
committed his sex
vism.
also
for a
provided
The law
risk
crimes in 1993
released on serve
provided
assessment.”16 The 1998 Act
the
1,
out
October
1997.
the
Under
2000
registration requirements
apply to
“shall
amendments, Appellee
requirement
had no
persons individually
sentenced
incarcer-
register.24
to
ated
the effective date of this Act
after
15,
[July
had
1998].”17
served
SORA
again
was amended
in 2006.25
out on
qualifying
sex crimes on Octo-
subjected
The 2006 amendments
those re
1,
ber
Under the
1997.
1998 amendments
to
quired
register
prior
under this or
law
SORA,
required
to
Appellee was not
felony
to Class D
for the first offense of
register.
violating
registration
law and enhanced
penalty
SORA
amended
again
subsequent
2000.18 the
offenses to a
This
felony26
amendment eliminated the need for a
amendments also
assessment,
length
regis-
expanded
risk
based the
of
residency
restrictions and
392, 2(8)
(9).
Ky.
gency,
§
13. 1994
ch.
&
Acts
date
effective
of the 2000 amend-
11,
Buck,
ments was
2000.
S.W.3d
308
6;
392,
Ky.
Hyatt,
14.
§
1994
Acts ch.
72
666, erroneously
at 663 &
stated
effective
S.W.3d at 570.
July
date as
which
not
error does
affect
holding
therein.
Ky.
§§
15. 1998
Acts ch.
138-155.
Ky.
§
23.
2000
37.
Peterson
Acts
See
Hyatt,
16.
72
at
S.W.3d
570.
Shake,
(Ky.2003).
human vacated and the is Appeals minors,28reorganizations, activity sexual is Fayette Circuit Court of the judgment in the are involved etc.,29 of which none vacated, remanded and the matter likewise was amended herein. SORA case Court, with Fayette Circuit directly to collection, etc., of with the 200830 to deal vacate the aside or to set instructions Again, samples registrants. DNA above-styled in the judgment and in the case of an issue was not indictment there- to dismiss the never Appellee was in, order the release and to of SORA. any version under *5 Nash, lee, charges. these from
ANALYSIS a conditional entered CUNNINGHAM, ABRAMSON, violation registration the plea to
guilty
SCOTT, JJ.,
NOBLE,
concur.
and
(and
II), reserving
right
PFO
charge
VENTERS, J.,
by separate
dissents
court’s denial of
the trial
appeal
MINTON, C.J., joins.
in which
(on
ex
motion to amend
facto
that he never
argument
His
grounds).
VENTERS, J., dissenting:
below, hav
not made
register was
had to
be,
appears to
presents what
This case
Court,
to this
and
been made
ing first
be, truly re-
hope to
and what we must
there
preserved.
not
hence is
extraordinary
circum-
markable
and
injustice. RCr
for manifest
fore reviews
being prosecuted
Despite
stances.
10.26.
separate occasions
convicted on three
guilty
a conditional
appeal
from
the Sex Offender
violating
consider an issue
will
plea,
this Court
Act,
appears
that
it now
a claim that the indict
“involve[s]
which
never
he was
innocent because
an offense or the
not
ment did
place.
in the first
sex offender
register as a
trial court was
by the
imposed
sentence
readily
to us
apparent
to be
seems
What
was nev
manifestly infirm[.]”31
lawyers,
attention of his
escaped
now
any version
register under
er
three
judges
and the
prosecutors,
As he was
of SORA.
true,
as a sober-
times.
If
that must serve
of the crime
guilty
he cannot be
register,
crimi-
segments
reminder to all
ing
any register, and
failing
including this
justice system,
nal
infirm.
manifestly
Un
imposed would be
obvious,
it is to overlook
easy
how
the facts of
der
Commonwealth,
v.
§
31. Dickerson
Ky. Acts ch.
added).
(emphasis
(Ky.2009)
19, 8(3).
Newman,
cracks sent. v. Japheth LIGON; Honorable the Ma- Chris apparent upon facts which Davis, Judge; Administrative Law faith enough acts are to shake the
jority Compensation Board, Appel Workers’ system. most believers in our ardent lees. they come before us on a limited But
record, in a most and arise unorthodox Japheth Ligon, Cross-Appellant, would, therefore, temper means. I injustice apparent by to correct this haste
respecting process our established as- Kroger; Davis, Honorable Chris Admin certaining evidentiary hear- the facts—an Judge; istrative Law and Workers’ court 11.42 ing Compensation Board, the circuit under RCr Cross-Appel 60.02. Because I believe the Court of lees. CR
Appeals misapplied ex-post doc- 2010-SC-000385-WC, Nos. Appellee’s trine when it reversed convic- 2010-SC-000403-WC. tion, I would reverse Court of Court of Supreme Kentucky. original judgment. Ap- and reinstate the proceed post- could then to file his pellee May conviction relief motions so that facts conventional, orderly
could arise in the *6 I stating, presume
fashion. In so good candor faith
Commonwealth’s provide continue to a tailwind to
would
expedite consideration the circuit court. we presume
If in this case that our own
procedures correcting such errors can- act to serve needs time
justice, then we have conceded to our process
fiercest that the is critics flawed repair. need of
MINTON, C.J., joins.