DONALD LEE RILEY v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 23, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court Of Appeals
NO. 2001-CA-001890-MR
DONALD LEE RILEY
APPELLANT
ON REMAND FROM SUPREME COURT OF KENTUCKY
APPEAL NO. 2002-SC-0742-D
v.
APPEAL FROM MEADE CIRCUIT COURT
HONORABLE SAM H. MONARCH, JUDGE
ACTION NO. 01-CR-00048
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, KNOPF AND VANMETER, JUDGES.
BARBER, JUDGE:
Donald Lee Riley (“Riley”) appeals from a
judgment of the Meade Circuit Court wherein he was convicted of
failing to register as a sex offender after entering a
conditional guilty plea pursuant to Kentucky Rules of Criminal
Procedure (CR) 8.09.
In an opinion rendered August 9, 2002, this
Court affirmed the trial court’s judgment.
The Supreme Court of
Kentucky granted discretionary review, vacated our prior opinion
and remanded this matter for reconsideration in light of its
opinion in Peterson v. Shake, Ky., 120 S.W.3d 707 (2003).
In
accordance with the principles set forth in Peterson, we reverse
and remand.
In 1995, Riley was convicted of sexual abuse in the
first degree in Owen Circuit Court.
After his release from
prison in 1997, Riley registered in Jefferson County as a sex
offender pursuant to Kentucky’s sex offender registry statute,
Kentucky Revised Statutes (KRS) 17.510.
According to information obtained by the Kentucky State
Police, Riley moved to and was issued a driver’s license in Meade
County on January 24, 20011.
Riley failed to register as a sex
offender in Meade County or notify probation and parole of his
address change.
Subsequently, Riley was arrested and indicted
for failing to register as a sex offender and for being a
persistent felony offender in the second degree.
Riley moved the trial court to remand his case to Meade
District Court and dismiss the persistent felony offender
indictment.
Riley argued that since he was convicted in 1994 and
1
The Kentucky State Police’s “Sex/Criminal Offender
Registry Notification of Non-Compliance” form incorrectly lists
“1/24/1901" as the date Riley’s driver’s license was issued.
2
released from prison in 1997, he should be prosecuted for failing
to register under the 1994 version of this statute as it was in
effect at the time of his conviction and release.
The 1994
version of KRS 17.510 punished the offense of failing to register
as a Class A misdemeanor.
Riley further argued that prosecuting
him under the 2000 version of KRS 17.510, which made failing to
register a Class D felony, constituted an ex post facto law in
violation of the United States and Kentucky constitutions.
The
trial court refused to remand the case to district court or
dismiss the persistent felony offender charge because the ex post
facto clause was not violated.
Specifically, the trial court
found that Riley was being punished for an offense committed
after April 11, 2000, the effective date of the 2000 version of
KRS 17.510.
The trial court, however, ensured that Riley would
not be prosecuted for any violations prior to April 11, 2000 by
amending the indictment to cover Riley’s failure to register from
April 11, 2000 to April 17, 2001.
Pursuant to a plea agreement wherein the Commonwealth
dismissed the persistent felony offender charge, Riley entered
his conditional plea of guilty to the charge of failing to
register as a sex offender.
year in prison.
The trial court sentenced him to one
This appeal follows.
On appeal, Riley contends that he should have been
subject only to misdemeanor penalties pursuant to the 1994
version of KRS 17.510.
His argument is premised on the fact
that, upon being released from prison on October 1, 1997, the
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maximum penalty for a violation of KRS 17.510(8), as it existed
under the 1994 version, was twelve (12) months in jail as a Class
A misdemeanor.
He further contends that the 2000 version of this
statute, which increased the penalty to a Class D felony, does
not apply to him.
According to the record, upon being released from
prison, Riley completed and signed a sex offender register entry
form which listed his address as 10109 Merioneth Drive,
Louisville, KY 40299.
That form stated, in relevant part, the
following:
I have been notified that the above
information is being sent to the Kentucky
State Police in order to place me on the sex
offender register. I also understand that if
I should have a change of address, I am
required to notify the local probation and
parole officer within 14 days. I further
understand that my failure to comply with
this law is a Class A misdemeanor.
Subsequent to his release on October 1, 1997, the
legislature amended KRS 17.510, effective April 11, 2000, to
reflect that “any person required to register under this section
who violates any of the provisions of this section is guilty of a
Class D felony.”
Riley argues that the legislature did not
intend to bind persons in his position with this amendment.
Accordingly, Riley submits that the Meade Circuit Court did not
possess subject matter jurisdiction to sentence him because the
penalty for failing to register as a sex offender, under the 1994
version of KRS 17.510 that was in effect at the time of his
release from prison, was a misdemeanor.
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In Peterson, supra, a case factually similar to the
matter currently before us, the Supreme Court of Kentucky held:
Appellant challenged the application of
the 2000 version of the statute in the
Jefferson Circuit Court. Judge James Shake
determined that the 2000 version of KRS
17.510 was applicable to Appellant, and thus,
Appellant was subject to prosecution for a
Class D felony instead of a Class A
misdemeanor.
Appellant petitioned the Court of
Appeals for a writ prohibiting further
prosecution of the indictment. In an order
entered on August 15, 2002, the Court of
Appeals denied Appellant's petition. He
appeals as a matter of right. CR 76.36(7)(a).
It is clear that Appellant is subject to
the 1998 version of the Kentucky Sex Offender
Registration Act, as he was released from
confinement following its enactment.
However, the Commonwealth wishes to prosecute
Appellant under the 2000 version. As a
result, the primary question with which we
are concerned is whether Appellant is subject
to prosecution for a Class D felony, under
the current version of KRS 17.510, for
failing to provide a valid home address to
the sex offender registry. After considering
all of the pertinent facts, we conclude that
Appellant is not.
* * * *
It is quite apparent that the 2000 amendments
were only intended to apply to persons who
were required to become registrants following
April 11, 2000. Merriam-Webster defines the
word "become" as "to come to exist or occur"
or "to emerge as an entity." Webster's Third
New International Dictionary of the English
Language, Unabridged 195 (1993).
Here Appellant was released from state
custody and registered with the sex offender
registry in June of 1999. It necessarily
−5−
follows that Appellant could not have been
required to "become" a registrant after April
11, 2000, since he was included in the
database of registered sex offenders before
that date. In other words, Appellant could
not have "become" a registrant, as he already
was one. In Wallbaum, supra, our predecessor
Court stated that "legislative intent is at
best a nebulous will-o'-the-wisp. Far better
it is to be guided by the old adage, 'Plain
words are easiest understood.' " Id. at 249.
If it was the intent of the General Assembly
to include individuals such as Appellant
under the amended 2000 version of KRS 17.510,
then it could have exactly said just that.
However, such was not expressed. We will not
add words to language we deem to be
unambiguous. Thus, we hold that Appellant
was not among the individuals the General
Assembly intended to be subject to the 2000
version of KRS 17.510.
* * * *
We observe that Appellant has no other
adequate remedy available at his disposal. If
a writ were not issued, Appellant would
experience great injustice in that he would
have to endure a trial and possibly face
conviction of a Class D felony, when the
maximum charge he should face is a Class A
misdemeanor. Considering we have determined
that Appellant could not be indicted under
the 2000 version of KRS 17.510, the felony
indictment charged against him must be
dismissed. If Appellant is to be prosecuted
regarding an alleged violation of KRS 17.510,
then he may be prosecuted under the 1998
version. If the Commonwealth continues to
pursue this matter, the proper court of
jurisdiction would be the Jefferson District
Court.
Peterson, supra, at 708-10.
Pursuant to the Supreme Court’s opinion in Peterson, it
appears that Riley correctly asserts that the trial court did not
possess subject matter jurisdiction over this matter.
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KRS
23A.010(1) and KRS 24A.110(1) grant the circuit court
jurisdiction over crimes designated as felonies.
However, since
the 2000 version of Kentucky’s sex-offender registry statute does
not apply herein, the circuit court erred in exerting
jurisdiction over this matter.
Peterson makes it clear that
Riley can only be subject to the version of KRS 17.510 that was
in effect at the time he was released from prison and registered
as a sex offender, which in this case is the 1994 version.
Thus,
if Riley is to be prosecuted for his alleged violation of KRS
17.510, then he must be prosecuted under the 1994 version.
Under
the 1994 version of KRS 17.510(8), the penalty for failing to
provide a change of address was a Class A misdemeanor.
Accordingly, we hold that Riley is subject only to the
misdemeanor penalty as prescribed by the 1994 version of KRS
17.510.
As such, if the Commonwealth continues to pursue this
matter, the proper court of jurisdiction would be the Meade
District Court.
KRS 24A.110(2).
For the foregoing reasons and in accordance with the
mandate set forth by the Supreme Court of Kentucky in Peterson,
supra, the judgment of the Meade Circuit Court is reversed and
this matter remanded to permit Riley to withdraw his guilty plea
and for other proceedings consistent with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Euva Hess
Assistant Public Advocate
Frankfort, Kentucky
Albert B. Chandler, III
Attorney General
Anitria M. Franklin
Assistant Attorney General
Frankfort, Kentucky
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