WILLIAM KEITH HYATT, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 7, 2000; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-000703-MR
WILLIAM KEITH HYATT, JR.
APPELLANT
APPEAL FROM ANDERSON CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
INDICTMENT NO. 92-CR-00024
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON and HUDDLESTON, Judges.
HUDDLESTON, Judge:
William Keith Hyatt, Jr. appeals from an
Anderson Circuit Court order classifying him as a high risk sex
offender pursuant to Kentucky Revised Statute (KRS) 17.570.
issues
presented
are:
(1)
whether
Kentucky’s
sex
The
offender
registration law, KRS 17.500-.991, violates the United States
Constitution and Kentucky Constitution because the law exposes
Hyatt to double jeopardy; (2) whether the sex offender registration
law
is
an
ex
post
facto
law;
(3)
whether
Hyatt
has
a
constitutionally protected privacy interest in the disclosure of
personal information under the United States Constitution and
Kentucky Constitution and is thus entitled to procedural due
process; and (4) whether the trial court violated Hyatt’s due
process rights by not providing the prerelease sex offender risk
assessment to his counsel until the morning of the hearing, by
failing to have the person who completed the risk assessment attend
the hearing, by not requiring the victim to testify at the hearing,
and by not allowing Hyatt to call expert witnesses to refute the
risk assessment report’s conclusions.
I.
FACTS AND PROCEDURAL HISTORY
Over a period of years, Hyatt sexually abused his younger
sister.
In October or November 1990, Hyatt, who was apparently
intoxicated, threw his thirteen-year-old sister onto a couch in
their parents’ home and fondled her vaginal area and breasts.
victim managed to escape and fled to the kitchen.
The
Hyatt followed
and, while holding a knife to the victim’s throat, threatened to
kill her if she told anyone.
In April 1991, Lawrenceburg Social Services became aware
of the abuse and referred the allegation to the Kentucky State
Police.
Hyatt was subsequently arrested and charged with first-
degree sexual abuse.
On July 18, a grand jury charged Hyatt in an
indictment with one count of first-degree sexual abuse. On October
8, Hyatt pled guilty, and the circuit court sentenced him to
imprisonment for one year.
The sentence was suspended and Hyatt
was placed on probation for three years.
In
1992,
Hyatt’s
probation
violations.
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was
revoked
for
various
At some point after Hyatt had pled guilty to first-degree
abuse, the victim divulged additional details about the abuse.
According to the victim, Hyatt had also forced her to perform oral
sex on him and forced her to have sexual intercourse.
Hyatt was
then charged in an indictment with first-degree rape and firstdegree sodomy.
On January 11, 1993, Hyatt pled guilty to amended
charges of second-degree rape and second-degree sodomy.
He was
sentenced to imprisonment for five years on each count to be served
consecutively.
On January 11, 1999, Hyatt was ordered to undergo a sex
offender assessment pursuant to KRS 17.570.
Hyatt requested
assistance of counsel at the hearing and sought to appear in
person. On the morning of the hearing, the prerelease sex offender
risk assessment conducted by Dr. Dennis E. Wagner, a licensed
psychologist, arrived by facsimile. The Commonwealth did not enter
the original into evidence at the hearing, nor was Dr. Wagner
present to testify.
The court admitted the report, and Hyatt did
not present any evidence to counter the report’s conclusions.
Thus, relying exclusively on the report, the court classified Hyatt
as a high risk sex offender pursuant to KRS 17.550.1
This appeal
followed.2
II.
LEGISLATIVE HISTORY
1
Specific details regarding the hearing will be developed as
necessary in addressing Hyatt’s arguments.
2
Hyatt requests that we take judicial notice of various
exhibits totaling approximately one hundred pages, which include
newspaper articles containing comments of legislators who voted on
Kentucky sex offender registration laws. Because the exhibits are
irrelevant to the ultimate issues before this Court, we decline to
do so.
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In response to public outrage after the abduction and
sexual abuse of children, a number of states across this country
attempted
to
find
ways
to
protect
children.
In
particular,
legislators expressed concern for the high rate of recidivism by
the perpetrators of sex crimes.
The State of New Jersey gained the
national spotlight after it adopted a sex offender law, which was
named “Megan’s Law” after one of the victims of a sex crime.3
In 1994, Congress adopted the Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration Program
to encourage states to adopt sex offender registration laws.4
If
a state failed to adopt a version of Megan’s Law with certain
provisions, Congress would withhold ten percent of funds that the
state would ordinarily receive under 42 United States Code (U.S.C.)
§ 3756, the Omnibus Crime Control and Safe Streets Act of 1968.5
A.
THE 1994 ACT
In 1994, the General Assembly adopted Kentucky’s first
version of Megan’s Law.
required
persons
to
The act, codified at KRS 17.500-.540,
register
in
certain
circumstances
after
3
See Doe v. Poritz, 662 A.2d 367 (1995) (upholding the
constitutionality of Megan’s Law in New Jersey).
4
Violent Crime Control and Law Enforcement Act of 1994, Pub.
L. No. 103-322, § 170101, 108 Stat. 1796, 2038 (codified as amended
at 42 U.S.C. § 14071). Congress subsequently amended the statute
in Pub. L. No. 104-145, § 2, 110 Stat. 1345, 1345 (1996); the Pam
Lychner Sexual Offender Tracking and Identification Act of 1996,
Pub. L. No. 104-236, §§ 3-7, 110 Stat. 3093, 3096-97; the
Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act, 1998, Pub. L. No. 105-119, §
115(a)(1)-(5), 111 Stat. 2440, 2461-63; and the Protection of
Children from Sexual Predators Act of 1998, Pub. L. No. 105-314, §
607(a), 112 Stat. 2974, 2985.
5
42 U.S.C. § 14071(g)(2)(A).
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committing a sex crime.
A “sex crime” was defined under the 1994
Act, and is still defined, as “a felony offense defined in KRS
Chapter 510, KRS 530.020, 530.064, or 531.310, a felony attempt to
commit a sex crime, or similar offenses in another jurisdiction.”6
These crimes include all degrees of rape, sodomy and sexual abuse;
incest; unlawful transaction with a minor in the first degree; and
the use of a minor in a sexual performance.
Under the 1994 Act, an actor who committed a sex crime
was required to register beginning January 1, 1995, if the actor
was:
[A] person eighteen (18) years of age or older at the
time of the offense who is released on probation, shock
probation, conditional discharge by the court, parole, or
a final discharge from a penal institution for committing
or
attempting
to
commit
a
sex
crime
shall,
within
fourteen (14) days after his release, register with the
local probation and parole office in the county in which
he resides.7
The law also required the jail, prison or other institution to
inform the sex offender prior to discharge of that person’s duty to
register, have the prisoner read and sign a form acknowledging
awareness of the duty to register and have the prisoner complete
6
KRS 17.500(4).
7
Act of April 11, 1994, ch. 392, § 2, 1994 Kentucky Acts
1165, 1165 (codified at KRS 17.510) (repealed in part and amended
in part 1998).
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the necessary registration form.8
The law also mandated that
courts inform a person found guilty of sex crimes by a guilty plea
or jury verdict of his duty to register, have the individual sign
an acknowledgment of such responsibilities and have the person
complete the registration form.9
The act also contained provisions
for the registration of sex offenders convicted in other states who
moved
to
Kentucky
prior
to
the
expiration
of
the
other
jurisdiction’s registration period.10
Under the 1994 Act, sex offenders were required to
register “for a period of ten (10) years following their discharge
from
confinement
discharge
date
or
on
ten
(10)
years
probation,
following
shock
their
probation,
maximum
conditional
discharge, parole, or other form of early release, whichever period
is greater.”11
If a sex offender failed to register with local
authorities,
he
misdemeanor,
for
information.”12
could
be
providing
convicted
“false,
of
committing
misleading,
or
a
Class
A
incomplete
The provisions of the law became effective on July
15, 1994, and applied to any person
who pled guilty or was
convicted of a sex crime after that date.13
B.
THE 1998 ACT
8
Id. § 2, 1994 Kentucky Acts at 1165-66.
9
Id. § 2, 1994 Kentucky Acts at 1166.
10
Id.
11
Id. § 3, 1994 Kentucky Acts at 1166 (codified at KRS
17.520) (repealed in part and amended in part 1998).
12
Id. § 2, 1994 Kentucky Acts at 1167 (codified as amended
at KRS 17.510(11)-(12)).
13
Id. § 6, 1994 Kentucky Acts at 1167.
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In 1998, the General Assembly amended the sex offender
registration
laws
and
imposed
additional
requirements.
The
amendment required the classification of sex offenders based on
their potential for recidivism and public notification to varying
degrees depending on the sex offender’s classification.
The 1998 Act defines a “sex offender” as “a person who
has been convicted of a sex crime as defined in KRS 17.500 who
suffers from a mental or behavioral abnormality or personality
disorder characterized by a pattern or repetitive, compulsive
behavior that makes the offender a threat to public safety.”14
A
major departure from the 1994 Act is that the 1998 law creates a
process
of
classifying
the
potential
for
recidivism
by
sex
offenders.
KRS
17.550(1)-(3)
divides
sex
offenders
classes based on their potential for recidivism.
into
three
A “low risk sex
offender” is a sex offender who has “a low risk of recommitting a
sex crime” as determined by the Sex Offender Risk Assessment
Advisory Board’s criteria.15
A “moderate risk sex offender” is a
sex offender who has a “moderate risk of recommitting a sex crime”
according to Board’s criteria.16
“[L]ow or moderate risk sex
offenders shall remain registered for a period of ten (10) years
following their discharge from confinement or ten (10) years
following
their
maximum
discharge
date
on
probation,
shock
probation, conditional discharge, parole, or other form of early
14
KRS 17.550(2).
15
KRS 17.550(5).
16
KRS 17.550(4).
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release, whichever period is greater.”17
If the sex offender is
incarcerated during the registration period for committing another
offense or due to a violation of the terms of his conditional
discharge, parole or probation, the registration is tolled during
the period of imprisonment.18
As part of the process of creating a recidivism risk
assessment program, the law created a Sex Offender Risk Assessment
Advisory Board.19
To classify sex offenders, the law empowered the
Board to certify providers to conduct the assessments.20
Under KRS
17.554(2):
The [B]oard shall develop a risk assessment procedure
that shall be used by certified providers in assessing
the risk of recommitting a sex crime by a sex offender
and the threat posed to public safety.
The procedure
shall be based upon, but not limited to the following
factors:
(a) Criminal history;
(b) Nature of the offense;
(c) Conditions of release that minimize risk;
(d) Physical conditions that minimize risk;
(e) Psychological or psychiatric profiles;
17
KRS 17.520(2).
18
KRS 17.520(3).
19
Act of April 14, 1998, ch. 606, § 142, 1998 Kentucky Acts
3598, 3676-77 (codified at KRS 17.554). See also id. § 143, 1998
Kentucky Acts at 3677 (outlining the composition and operation of
the Board).
20
KRS 17.554(1).
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(f) Recent behavior that indicates an increased
risk of recommitting a sex crime;
(g) Recent threats or gestures against persons or
expressions
of
an
intent
to
commit
additional
offenses; and
(h) Review of the victim impact statement.
A certified provider then conducts a risk assessment based on the
criteria set forth in the law and the procedures established by the
Board.
KRS 17.570(1) provides that:
Upon conviction of a “sex crime” as defined in KRS 17.500
and
within
sixty
(60)
calendar
days
prior
to
the
discharge, release, or parole of a sex offender, the
sentencing
court
shall
order
a
sex
offender
risk
assessment by a certified provider for the following
purposes:
(a) To determine whether the offender should be
classified as a high, moderate, or low risk sex
offender;
(b) To designate the length of time a sex offender
shall register pursuant to KRS 17.500 to 17.540;
and
(c) To designate the type of community notification
that shall be provided upon the release of the sex
offender pursuant to KRS 17.500 to 17.540.
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After the risk assessment has been completed, the circuit
court must hold a hearing and “review the recommendations of the
certified provider along with any statement by a victim or victims
and any materials submitted by the sex offender.”21
The Kentucky
Rules of Criminal Procedure (RCr) apply, and the sex offender has
the right to attend the hearing and be heard.22
The circuit court
must inform the sex offender of the right to have appointed
counsel.23
After the hearing, the circuit court must make findings
of fact and conclusions of law in classifying the sex offender’s
risk of recidivism, which can then be appealed.24
When the sex
offender is released from incarceration, the court or official in
charge of the institution must forward the risk determination to
the sheriff of the county of the sex offender’s residence.25 If the
sex offender has the ability, the court can require the sex
offender to pay the cost of the hearing.26
A “high risk sex offender” is a sex offender who has “a
high risk of recommitting a sex crime” as classified by the Board.27
In addition, an offender who meets the definition of “sexually
violent predator” under 42 U.S.C. § 14071(a)(3)(C) may also be
21
KRS 17.570(3).
22
KRS 17.570(4).
23
KRS 17.570(5).
24
KRS 17.570(6).
25
KRS 17.570(8).
26
KRS 17.570(2).
27
KRS 17.550(3).
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considered a high risk sex offender under KRS 17.550(3).28
A high
risk sex offender must register for life unless reclassified.29
However, a high risk sex offender can petition for relief from the
sentencing court by filing a petition ten years or more “after the
date
of
discharge
from
probation,
parole,
incarceration, whichever is most recent.”30
or
release
from
Following an adverse
decision on the first petition, the sex offender can repetition for
relief every five years thereafter.31
Prior to ruling on the
petition,
order
the
sentencing
court
will
an
updated
risk
assessment from a certified provider and then follow with a hearing
pursuant to KRS 17.570.32
An important differentiation from the 1994 Act is who can
have access to sex offender registry information and to what
extent.
The information that the sex offender must provide to the
registry includes:
[N]ame, Social Security number, age, race, sex, date of
birth, height, weight, hair and eye color, aliases used,
residence, vehicle registration data, a brief description
of the crime or crimes committed, and other information
28
Under 42 U.S.C. § 14071(a)(3)(C), a “sexually violent
predator” is “a person who has been convicted of a sexually violent
offense and who suffers from a mental abnormality or personality
disorder that makes the person likely to engage in predatory
sexually violent offenses.”
29
KRS 17.520.
30
KRS 17.578(1).
31
Id.
32
KRS 17.578(2)-(3).
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the cabinet determines, by administrative regulation, may
be useful in the identification of sex offenders.33
The information is then made available, in varying degrees, to
groups according to risk classification.34
33
KRS 17.500(3).
34
If the sex offender
KRS 17.572 provides:
(1) If the offender is determined to be a high risk sex
offender, the notification shall include offender information
as defined in KRS 17.500 and any special conditions imposed by
the court or the Parole Board. The Social Security number of
the offender shall not be released to those persons identified
in paragraphs (c), (d), and (f) of this subsection.
The
following individuals shall be notified by the sheriff of the
county to which the offender is to be released:
(a) The law enforcement agency having jurisdiction;
(b) The law enforcement agency having had jurisdiction at
the time of the offender's conviction;
(c) Victims who have requested to be notified;
(d) The Information Services Center, Kentucky State
Police;
(e)
Any
agency,
organization,
or
group
serving
individuals who have similar characteristics to the
previous victims of the offender, if the agency,
organization, or group has filed a request for
notification with the local sheriff; and
(f) The general public through statewide media outlets
and by any other means as technology becomes available.
(2) Upon a finding by the sentencing court that the offender
is a high risk sexual offender, the designation shall continue
until the sentencing court determines that the individual is
no longer a high risk sex offender.
(3) An offender who has been designated by the sentencing
court to be a high risk sex offender shall upon his release by
the court, parole board, or the cabinet be required to
register for his lifetime in accordance with the provisions of
KRS 17.510 and shall be subject to community notification
pursuant to this section and KRS 17.574.
(4) If the offender is determined to be a moderate risk sex
offender, the notification shall include offender information
as defined under KRS 17.500, the zip code in which the
offender resides, and any special conditions imposed by the
court or the Parole Board.
The Social Security number,
personal residential address, and vehicle registration shall
not be disclosed to the individuals identified in paragraphs
(c) and (e) of this subsection. The following individuals
(continued...)
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moves, it is the sex offender’s responsibility to complete a
registry update within ten days of the move.35
Failing to comply
with the registration requirements or knowingly providing “false,
misleading, or incomplete information” is a Class A misdemeanor.36
Under the 1998 Act, KRS 17.510-.520, as amended, KRS
17.550-.991
“appl[ies]
to
persons
individually
sentenced
or
incarcerated after the effective date of this Act [(July 15,
34
(...continued)
shall be notified by the sheriff of the county to which the
offender is released:
(a) The law enforcement agency having jurisdiction;
(b) The law enforcement agency having had jurisdiction at
the time of the offender's conviction;
(c) Victims who have requested to be notified;
(d) The Information Services Center, Kentucky State
Police; and
(e)
Any
agency,
organization,
or
group
serving
individuals who have similar characteristics to the
previous victim or victims of the sexual offender, if the
agency, organization, or group has filed a request for
notification with the local sheriff.
(5) If the offender is determined to be a low risk sex
offender, the notification shall include offender information
as defined in KRS 17.500.
The Social Security number,
personal residential address and, vehicle registration shall
not be disclosed to the persons identified in paragraph (c) of
this subsection. The following individuals shall be notified
by the sheriff of the county to which the offender is
released:
(a) The law enforcement agency having jurisdiction;
(b) The law enforcement agency having had jurisdiction at
the time of the offender's conviction;
(c) Victims who have requested to be notified; and
(d) The Information Services Center, Kentucky State
Police.
35
KRS 17.510(10).
36
KRS 17.510(11)-(12).
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1998)].”37 However, KRS 17.520, 17.552, 17.570-.578, and 17.991 did
not become effective until January 11, 1999.38
III.
WHETHER THE APPLICATION OF KRS 17.500-.991 TO HYATT
VIOLATES THE CONSTITUTIONAL PROHIBITIONS AGAINST DOUBLE JEOPARDY
AND EX POST FACTO LAWS
Hyatt argues that Kentucky’s sex offender registration
statutes have various constitutional flaws.
In particular, Hyatt
claims that these statutes expose him to double jeopardy and are ex
post facto laws.
A.
DOUBLE JEOPARDY
The Fifth Amendment to the United States Constitution, in
relevant part, provides that: “nor shall any person be subject for
the same offence to be twice put in jeopardy of life or limb . . .
.”
The United States Supreme Court has determined that the Fifth
Amendment is applicable to the states by way of the Fourteenth
Amendment.39
Section 13 of the Kentucky Constitution also provides
that “[n]o person shall, for the same offense, be twice put in
jeopardy of his life or limb . . . .”
In Hourigan v. Commonwealth,40 the Kentucky Supreme Court
addressed a double jeopardy claim.
The Court stated that the
37
Act of April 14, 1998, ch. 606, § 199, 1998 Kentucky Acts
3598, 3694. See also Ky. Const. § 55 (“No act . . . shall become
a law until ninety days after the adjournment of the session at
which it was passed, except in cases of emergency . . .”).
38
Id. § 200, 1998 Kentucky Acts at 3694.
39
See Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056,
2062, 23 L. Ed. 2d 707, 716 (1969).
40
Ky., 962 S.W.2d 860 (1998).
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double jeopardy clauses of the United States Constitution and the
Kentucky Constitution “protect a criminal defendant from three
distinct abuses:
(1) a second prosecution for the same offense
after acquittal; (2) a second prosecution for the same offense
after
conviction;
offense.”41
and
(3)
multiple
punishments
for
the
same
Similarly, the U.S. Supreme Court in Hudson v. United
States42 noted:
The Double Jeopardy Clause provides that no “person
[shall] be subject for the same offence to be twice put
in jeopardy of life or limb.”
We have long recognized
that the Double Jeopardy Clause does not prohibit the
imposition of any additional sanction that could, “‘in
common parlance,’” be described as punishment.
The
Clause protects only against the imposition of multiple
criminal punishments for the same offense, . . . and then
only when such occurs in successive proceedings.43
In addressing whether a law exposes a defendant to double
jeopardy because it imposes additional punishment, the Court has
established a two-part test:
A court must first ask whether the legislature, “in
establishing the penalizing mechanism, indicated either
expressly or impliedly a preference for one label or the
41
Id. at 862 (citing United States v. Halper, 490 U.S. 435,
109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989)).
42
522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997).
43
Id. at 98-99, 118 S. Ct. at 493, 139 L. Ed. 2d at 458-59
(internal citations omitted).
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other.”
Even in those cases where the legislature “has
indicated an intention to establish a civil penalty, we
have inquired further whether the statutory scheme was so
punitive either in purpose or effect,” as to “transfor[m]
what was clearly intended as a civil remedy into a
criminal penalty.”44
Applying the first part of the analysis to the present
case, we must attempt to ascertain the purpose of KRS 17.500-.991.
The General Assembly does not maintain detailed records of its
debates or its committees hearings.
Furthermore, the preamble of
the adopting act is virtually silent on the legislation’s purpose.45
Thus, we must rely on the plain language and clear intent of the
statutes.46
We do not find that the statutes serve anything but a
regulatory purpose.
The sex offender registration statutes are
codified in Chapter 17 of KRS, a chapter dealing with public
safety.
This
suggests
that
the
statutes
serve
a
regulatory
purpose, but does not conclusively resolve this question.
44
Id. at 99, 118 S. Ct. at 493, 139 L. Ed. 2d at 459
(internal citations omitted).
45
Act of April 11, 1994, ch. 392, preamble, 1994 Kentucky
Acts 1165, 1165 (“AN ACT relating to the registration of sexual
offenders.”);
Act of April 14, 1998, ch. 606, preamble, 1998
Kentucky Acts 3598, 3598 (“AN ACT relating to criminal justice
matters.”).
46
Bob Hook Chevrolet Isuzu, Inc. v. Transportation Cabinet,
Ky., 983 S.W.2d 488, 492 (1998) (“A statute should be construed, if
possible, so as to effectuate the plain meaning and unambiguous
intent expressed in the law.”) (citing McCracken County Fiscal
Court v. Graves, Ky., 885 S.W.2d 307, 309 (1994)).
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The statutes can be grouped according to their purpose.
KRS 17.552-.568 establish the Board, outline its role in the
registration of sex offenders and create the requirements for the
certification of professionals who conduct risk assessments.
As
discussed, the Board is responsible for creating procedures for
conducting assessments.
KRS 17.554(2), for example, directs the
Board to “develop a risk assessment procedure to be used by
certified providers in assessing the risk of recommitting a sex
crime by a sex offender and the threat posed to public safety.”47
The statute also expressly outlines the factors to be utilized in
the assessment.
None of the factors suggest a punitive purpose,
and the factors are an indication that the registration serves a
regulatory function.
Other statutes — KRS 17.510-.520, KRS 17.570 and KRS
15.574
—
deal
primarily
with
registering sex offenders.
any
of
the
challenged
the
process
of
classifying
and
Neither these statutes nor, in fact,
statutes
use
the
word
“punitive”
or
“punishment.” These statutes merely direct the sentencing court to
order a risk assessment for the criminal prior to release.
Based
on that assessment and the hearing on the assessment, the circuit
court then classifies the prisoner’s risk of recidivism, which
affects the information to be provided to the registry, the length
of registration and who is entitled to the registry information.
KRS 17.530 and KRS 17.572 address the dissemination of
the registration information to law enforcement and the public.
47
KRS 17.554(2) (emphasis supplied). See also 501 KAR 6:200
(establishing the procedure for sex offender risk assessments).
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Based on the classification of the criminal, the statutes allow the
dissemination of varying amounts of personal information.
17.510
even
provides
a
penalty
for
the
misuse
of
KRS
registry
information.
In light of the statutory scheme, we cannot say that the
statutes punish prisoners twice.
Rather, the statutes create a
mechanism for protecting public welfare and safety by monitoring
the location of sex offenders and providing information to law
enforcement officials and the public.
Although we have determined that the language of the
statutes
does
not
indicate
a
punitive
purpose,
we
must
then
determine whether the statutes do, in actuality, punish a criminal
twice for the same crime.
To apply the second part of the
analysis, the U.S. Supreme Court in Kennedy v. Mendoza-Martinez48
set out factors to consider in determining whether a law imposes a
second
punishment:
affirmative
(1)
disability
“[w]hether
or
the
restraint;”
sanction
(2)
involves
“whether
it
an
has
historically been regarded as a punishment;” (3) “whether it comes
into
play
only
operation
on
will
a
finding
promote
of
scienter;”
the
(4)
traditional
“whether
aims
its
of
punishment—retribution and deterrence;” (5) “whether the behavior
to
which
it
applies
is
already
a
crime;”
(6)
“whether
an
alternative purpose to which it may rationally be connected is
assignable for it;” and (7) “whether it appears excessive in
48
372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963).
-18-
relation to the alternative purpose assigned . . . .”49
Commenting
on the application of these factors, the Court, in United States v.
Ward,50 said that “[t]his list of considerations, while certainly
neither exhaustive nor dispositive, has proved helpful in our own
consideration of [whether a law is punitive] . . . .”51
If these
factors are applied, “[a]bsent conclusive evidence of [legislative]
intent as to the penal nature of a statute, [they] must be
considered in relation to the statute on its face.”52
Applying the first Kennedy factor, we must determine
whether these statues are sanctions that involve “an affirmative
disability or restraint.”
In answering this question, the U.S.
Supreme Court in Hudson concluded that the indefinite barring of
someone from the banking industry did not arise to the level of
affirmative disability or restraint.53
In this case, Hyatt can still seek employment and live in
the
location
of
his
choice.
However,
he
must
notify
the
appropriate officials of his location by updating his registry
information pursuant to KRS 17.510(10).
We do not believe that
this arises to the level of affirmative disability or restraint.
49
Id. at 168-69, 83 S. Ct. at 567-68, 9 L. Ed. 2d at 661
(footnotes omitted) (citations omitted).
See also Burnett v.
Commonwealth, Ky. App., 3 S.W.3d 359, 361 (1999) (applying the
Kennedy factors in a double jeopardy context).
50
448 U.S. 242, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980).
51
Id. at 249, 100 S. Ct. at 2641, 65 L. Ed. 2d at 750.
52
Kennedy, 372 U.S. at 169, 83 S. Ct. at 568, 9 L. Ed. 2d at
53
Hudson, 522 U.S. at 103, 118 S. Ct. at 495, 139 L. Ed. 2d
661.
at 462.
-19-
Under
the
second
Kennedy
factor,
we
must
determine
whether this sanction has traditionally been viewed as punishment.
Traditional
forms
of
punishment
include
incarceration,
incapacitation and rehabilitation.
The laws in question do not impose restrictions on sex
offenders
that
can
be
equated
incarceration or incapacitation.
with
traditional
forms
of
The registry laws do not force
sex offenders to conform their conduct.
The purpose of the sex
offender registration laws is to protect the public welfare and
safety by notifying the public of the location of sex offenders
and, possibly, other personal information.
The dissemination of information has not been considered
a traditional form of punishment.
As the United States Court of
Appeals for the Sixth Circuit noted in Cutshall v. Sundquist54 in
applying the second Kennedy factor to Tennessee’s sex offender
registration statutes:
We are mindful of the fact that shaming punishments, such
as banishment and pillory, have historically been used to
punish criminals. However, these practices involved more
than the mere dissemination of information.
Moreover,
the possibility of a shaming effect from disclosure of
registry information is certainly not the clearest of
proof necessary to overcome the legislative intent that
the Act serve regulatory and not punitive purposes.
54
193 F.3d 466 (6th Cir. 1999), cert. denied, 120 S. Ct. 1554
(2000).
-20-
Dissemination of information is fundamentally different
from traditional forms of punishment . . . .55
Thus, we find that this Kennedy factor has not been met.
In addition, we must determine whether the provisions of
the laws are implicated only by a showing of scienter under the
third Kennedy factor.
Scienter is defined as “knowingly.”56
The sex offender registration statutes apply to any
criminal who was convicted of committing “a felony offense defined
in KRS Chapter 510, KRS 530.020, 530.064, or 531.310, a felony
attempt to commit a sex crime, or similar offenses in another
jurisdiction.”57
The registration statutes do not consider the
state of mind of the criminal in committing the act.
Instead, the
statutes apply to all persons convicted of a sex crime.
The
statutes then require the sentencing court to direct a certified
provider to assess a sex offender’s potential for recidivism prior
to release, probation, etc.
The circuit court conducts a hearing
on the risk assessment results and classifies the sex offenders.58
Thus, no finding of scienter is required in forcing a sex offender
to register.
55
Id. at 475.
56
Black’s Law Dictionary 1345 (6th ed. 1990).
57
KRS 17.500(4).
58
See Kansas v. Hendricks, 521 U.S. 346, 362, 117 S. Ct.
2072, 2082, 138 L. Ed. 2d 501, 515 (1997) (noting that “[t]he
absence of [] a requirement [of a finding of scienter] is evidence
that confinement under [a sexually violent predator incarceration]
statute is not intended to be retributive.”).
-21-
Next, we must determine if the statutes further the
traditional aims of punishment, namely retribution and deterrence.
It would be intellectually dishonest to argue that the statutes do
not serve any deterrent function.
If a sex offender knows that law
enforcement officials are aware of the location of his residence
and place of employment, the sex offender may be less likely to
commit another sex crime.
However, as the U.S. Supreme Court
observed
hold
in
Hudson,
“[t]o
that
the
mere
presence
of
a
deterrent purpose renders such sanctions ‘criminal’ for double
jeopardy purposes would severely undermine the Government’s ability
to engage in effective regulation . . . .”59
In addition, as the
United States Court of Appeals for the Second Circuit noted in
Doe v. Pataki,60 “[e]ven if the [sex offender registration law]
advances some goals traditionally associated with the criminal law,
it primarily ‘serve[s] important nonpunitive goals’ of protecting
the public from potential dangers and facilitating future law
enforcement efforts.”61
While the statutes do serve to deter
recidivism, like the Pataki court, we do not believe this factor
alone is enough to warrant declaring the statutes unconstitutional.
Fifth, we must consider whether the statutes apply to
acts which are already crimes under Kentucky law.
A sex offender
is a criminal convicted of a sex crime under KRS Chapter 510, KRS
530.020, 530.064, 531.310, a felony attempt to commit a sex crime
59
Hudson, 522 U.S. at 105, 118 S. Ct. at 496, 139 L. Ed. 2d
at 463.
60
120 F.3d 1263 (2d Cir. 1997).
61
Id. at 1283 (citing United States v. Ursery, 518 U.S. 267,
290, 116 S. Ct. 2135, 2148, 135 L. Ed. 2d 549, 569 (1996)).
-22-
or similar offenses in another jurisdiction.
The sex offender
registration statutes only apply to individuals convicted of a sex
crime.
Thus,
it
cannot
be
denied
that
the
sex
offender
registration statutes only apply to convicted sex offenders.
However,
we
do
not
believe
this
fact
makes
registration statutes punitive for double jeopardy purposes.
the
In
Herbert v. Billy,62 the U.S. Court of Appeals for the Sixth Circuit
considered a constitutional challenge to convictions under Ohio law
when the appellants had their drivers’ licenses suspended and were
subsequently
convicted
of
driving
under
the
influence.
The
appellants argued that these laws exposed them to Double Jeopardy
under the Fifth Amendment of the United States Constitution.
In
upholding the constitutionality of the statutes, the Court found
that the suspension statute was not punitive.
To hold otherwise would undermine the state’s ability to
effectively
regulate
its
highways.
In
similar
circumstances, the Hudson Court said that a finding of
double
jeopardy
“would
severely
undermine
the
Government’s ability to engage in effective regulation of
institutions such as banks.”63
Consistent with the holding in that case, we do not believe that
the registration requirements impose any additional punishment on
Hyatt.
62
To
hold
otherwise
would
severely
undermine
the
160 F.3d 1131 (6th Cir. 1998).
63
Id. at 1138 (quoting Hudson v United States, 522 U.S. 93,
496, 118 S. Ct. 488, 496, 139 L. Ed. 2d 450, 463 (1997)).
-23-
Commonwealth’s interest in public welfare and safety due to the
high rate of recidivism of sex offenders.
Finally, the sixth and seventh Kennedy factors require us
to determine whether the registration laws have a remedial purpose
and
whether
purpose.
the
laws
are
excessive
compared
to
the
remedial
We conclude that the laws do not have such a purpose and
are not excessive.
Kentucky sex offender registrations laws both protect the
public
and
aid
law
enforcement
in
monitoring
sex
offenders.
Congress and many states have considered the heinousness of sex
crimes and their impact on children.
We recognize that the
registration laws do impose at least some burden on sex offenders.
In his brief, Hyatt asserts that:
Being designated as a high risk sex offender has also
caused Mr. Hyatt considerable personal hardship.
Two
newspaper articles have been published about his release.
He has been unable to find stable employment. An attempt
was made to involuntarily commit him to Eastern State
Hospital.
He is currently incarcerated in the Franklin
County jail accused of stealing a car.
He has received
threatening letters from the families of some women with
whom he allegedly corresponded while in prison.
As a
direct result of his high risk designation, Mr. Hyatt has
had affirmative disabilities and restraints imposed upon
him from four different sources:
the Anderson Circuit
Court, the statute itself, his family, and his local
community.
-24-
As Hyatt himself acknowledges, many of the burdens of which Hyatt
complains are not a result of the statutes but from the potential
abuse by the public of the information contained in the sex
offender registry.
As the Sixth Circuit Court of Appeals commented in
upholding Tennessee’s sex offender registration laws, “[g]iven the
gravity of the state’s interest in protecting the public from
recidivist
sex
offenders,
and
the
small
burdens
imposed
on
registrants, we cannot say that the requirements of the Act exceed
its remedial purpose.”64 The Court’s words are equally true in this
case.
While Hyatt must register for life — subject to his right to
petition for reclassification pursuant to KRS 17.578 — this burden
is not unduly onerous compared to the Commonwealth’s interest in
protecting the public.
As did the circuit court, we reject Hyatt’s allegation
that the statutes are unconstitutional because they impose an
additional punishment.
Thus, we conclude that Kentucky’s sex
offender registration laws do not expose individuals to double
jeopardy when applied to a criminal who has been convicted of
committing a sex crime.
64
Cutshall v. Sundquist, supra, n. 54, at 476.
-25-
B.
EX POST FACTO LAWS
The United States Constitution prohibits the enactment of
ex post facto laws by states.65
Similarly, Section 19 of the
Kentucky Constitution provides that “[n]o ex post facto law . . .
shall be enacted.”
In addressing an allegation that a law was ex post facto,
the U.S. Supreme Court said in Weaver v. Graham66 that “the ex post
facto prohibition . . . forbids the imposition of punishment more
severe than the punishment assigned by law when the act to be
punished occurred.”67
We have stated that “two elements must be
present for a law to be considered ex post facto:
(1) ‘it must
apply to events occurring before its enactment,’ and (2) ‘it must
disadvantage the offender.’”68
Applying the first element to this case, there is no
question but that the sex offender registration statutes are being
applied retroactively. Hyatt committed the crimes to which he pled
guilty prior to 1991.
The sex offender registration statutes did
not become effective until 1994.
Thus, we conclude that the first
element has been met.
65
U.S. Const. art. I, § 10 (“No State shall . . . pass any
. . . ex post facto Law . . . .”). See also Calder v. Bull, 3 U.S.
(3 Dall.) 386, 390, 1 L. Ed. 648, ___ (1798) (stating that it is
prohibited under the Ex Post Facto Clause to retroactively apply
any law that “inflicts a greater punishment, than the law annexed
to the crime, when committed”).
66
67
450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981).
Id. at 30, 101 S. Ct. at 965, 67 L. Ed. 2d at 24.
68
Lattimore v. Corrections Cabinet, Ky. App., 790 S.W.2d 238,
239 (1990) (quoting Weaver, 450 U.S. at 29, 101 S. Ct. at 964, 67
L. Ed. 2d at 23) (footnotes omitted).
-26-
We must now focus on whether Hyatt has been disadvantaged
by the application of the statutes. In answering this question, we
must consider whether the statutes are punitive or regulatory.
Hyatt
“bears
the
‘heavy
burden’
of
overcoming
the
regulatory or remedial purpose served by notification, a burden
that
may
be
sustained
only
by
the
‘clearest
proof’
that
notification is ‘so punitive in form and effect’ as to render it
punitive despite [a] [] prospective, regulatory intent.”69
In
Kansas v. Hendricks,70 the U.S. Supreme Court applied many of the
same Kennedy factors in determining whether a statute was an ex
post facto law.
In the same manner, we will apply the Kennedy
factors in this case that were articulated earlier.71
In light of our previous analysis, we conclude that
Kentucky sex offender registration statutes are not intended to
punish sex offenders.
Thus, the laws, KRS 17.500-.991, do not
impose additional punishment on Hyatt and are not ex post facto
laws under the United States Constitution or Kentucky Constitution.
IV.
JURISDICTION
Hyatt argues that the circuit court lacked subject matter
jurisdiction because the court scheduled the hearing prior to the
effective date of KRS 17.570, which requires the hearing. Although
this issue was not raised below, Hyatt believes that it can be
69
Roe v. Office of Adult Probation, 125 F.3d 47, 54 (2d Cir.
1997) (internal citations omitted).
70
521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997).
71
See text accompanying note 49, supra. See also Cutshall
v. Sundquist, supra, n. 54, (applying the Kennedy factors in
determining whether Tennessee’s sex offender registration laws were
ex post facto laws).
-27-
raised for the first time on appeal in light of the decision in
Commonwealth Health Corp. v. Croslin,72 where the Supreme Court
noted that “defects in subject matter jurisdiction may be raised by
the parties or the court at any time and cannot be waived.”73
We
agree that we can address Hyatt’s challenge to the subject matter
jurisdiction of the circuit court.
KRS 17.570(1) directs the sentencing court to order a
risk assessment sixty days prior to the sex offender’s release from
incarceration.
A certified provider conducts the assessment and
sends a report to the court.
In this case, the court ordered the
assessment on January 11, 1999. However, KRS 17.570 did not become
effective until January 15.
The
circuit
court
did
not
classify
Hyatt
as
a
sex
offender prior to the effective date of the law, nor did Dr. Wagner
conduct his assessment prior to that date.
Rather, the circuit
court merely ordered that the evaluation take place.
We believe
that the January 11 order providing for the evaluation did not
invalidate the court’s subsequent classification of Hyatt as a sex
offender.
72
Ky., 920 S.W.2d 46 (1996).
73
Id. at 47 (citing Louisville & Nashville R.R. v. Mottley,
211 U.S. 149, 152, 29 S. Ct. 42, 43, 53 L. Ed. 126, ___ (1908)).
See also Johnson v. Bishop, Ky. App., 587 S.W.2d 284, 285 (1979)
(“[S]ubject matter jurisdiction may not be conferred by waiver, or
even consent, while a question as to such jurisdiction generally
may be raised at any time.”) (citing Duncan v. O’Nan, Ky., 451
S.W.2d 626 (1970)).
-28-
V.
DUE PROCESS
Hyatt also argues that the circuit court violated his due
process rights by:
(1) not providing a copy of the risk assessment
to him or his counsel until the morning of the hearing; (2) not
requiring Dr. Wagner, the certified provider, to authenticate the
report or submit to cross-examination regarding its contents; (3)
not requiring the victim to testify; and (4) not allowing Hyatt to
present expert testimony to refute Dr. Wagner’s recommendation that
Hyatt should be classified as a high risk sex offender.
Because we
agree with some of Hyatt’s arguments, we reverse and remand this
case for another risk assessment hearing.
A.
DUE PROCESS RIGHTS IMPLICATED BY RIGHT OF PRIVACY
Hyatt avers that the release of personal information
contained in the sex offender registry violates his right of
privacy under the United States Constitution.
is
not
protected
in
these
circumstances
Even if this right
under
the
U.S.
Constitution, Hyatt argues in the alternative that Kentucky has
recognized a more expansive right of privacy that applies in this
case, and he draws our attention to the Kentucky Supreme Court’s
decision in Commonwealth v. Wasson.74
Because he has a privacy
interest in the release of personal information, Hyatt insists he
was entitled to procedural due process during the risk assessment
hearing.
74
Ky., 842 S.W.2d 487 (1992).
-29-
Both the federal and state constitutions guarantee due
process of law.75
due
process,
analysis:
In appraising claims for violation of procedural
the
U.S.
Supreme
Court
has
utilized
a
two-part
(1) “whether the asserted individual interests are
encompassed within the Fourteenth Amendment’s protection of ‘life,
liberty
or
property’;”
and
(2)
“if
protected
interests
are
implicated, . . . then . . . what procedures constitute ‘due
process of law.’”76
Applying that analysis to the case sub judice, we must
examine the interest asserted by Hyatt — his personal right of
privacy.
While not an enumerated right in the U.S. Constitution,
the Supreme Court has interpreted the Constitution to grant that
right in limited areas.
As the Court said in Paul v. Davis:77
[P]ersonal rights found in this guarantee of personal
privacy must be limited to those which are “fundamental”
or “implicit in the concept of ordered liberty” . . . .
The activities detailed as being within this definitions
75
U.S. Const. amend. XIV, § 1 (“[No] State [shall] deprive
any person of life, liberty, or property, without due process of
law . . .”); Ky. Const. § 11 (“In all criminal prosecutions the
accused . . . can[not] be deprived of his life, liberty or
property, unless by the judgment of his peers or the law of the
land . . .”).
76
Ingraham v. Wright, 430 U.S. 651, 672, 97 S. Ct. 1401,
1413, 51 L. Ed. 2d 711, 731 (1977) (citing Morrissey v. Brewer, 408
U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972);
Board of Regents v. Roth, 408 U.S. 564, 569-72, 92 S. Ct. 2701,
2705-07, 33 L. Ed. 2d 548, 556-58 (1972)).
See also Bliek v.
Palmer, 102 F.3d 1472, 1475 (8th Cir. 1997) (“We engage in a twopart analysis when addressing a procedural due process argument,
asking, first, whether the plaintiffs have a protected interest at
stake, and if so, what process is due.”) (citing Schneider v.
United States, 27 F.3d 1427, 1333 (8th Cir. 1994)).
77
424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976).
-30-
were . . . matters relating to marriage, procreation,
contraception, family relationships, and child rearing
and education.
there
are
In these areas it has been held that
limitations
on
the
States’
power
to
substantively regulate conduct.78
In Whalen v. Roe,79 the Supreme Court classified privacy interests
into two categories:
disclosure
of
“the individual interest in avoiding the
personal
matters,
and
.
.
.
the
interest
in
independence in making certain kinds of important decisions.”80
Hyatt argument focuses on the first category.
While
everyone
enjoys
certain
privacy
rights,
those
rights must be balanced with the needs and demands of society.
This case presents the competing interests government has in public
welfare and safety by making the public aware of the location of
sex offenders versus Hyatt’s individual right of privacy.
As we
noted in Board of Education v. Lexington-Fayette Urban County
Human Rights Comm’n,81 the right of privacy “is based on the right
of an individual to be left alone, to be free from unwarranted
publicity, and to live without unwarranted interference by the
78
Id. at 713, 96 S. Ct. at 1166, 47 L. Ed. 2d at 420-21
(internal citations omitted).
79
429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977).
80
Id. at 599-600, 97 S. Ct. at 876, 51 L. Ed. 2d at 73
(footnotes omitted) (citations omitted).
81
Ky. App., 625 S.W.2d 109 (1981).
-31-
public in matters with which it is not necessarily concerned.
However, the right is not absolute.”82
Assuming that Hyatt could show that he has a privacy
right, the Supreme Court has stated that “[t]he requirements of
procedural due process apply only to the deprivation of interests
encompassed by the Fourteenth Amendment’s protection of liberty and
property.”83
Like the Pennslyvania Superior Court in Commonwealth
v. Mountain,84 we believe that “the registration provision of [the
sex offender registration] law is a non-punitive measure with only
the
very
slightest
inconvenience
to
the
defendant
and
the
overwhelming policy objective of assuring public safety.”85
In the context of privacy rights versus sex offender
registration
statutes,
other
courts
have
reached
similar
conclusions.
In Lanni v. Engler,86 the court rejected a convicted
sex offender’s argument that he was entitled to procedural due
process because the court found that there was no deprivation of a
property or liberty interest.
The court commented that “[t]he Act
merely compiles truthful, public information and makes it more
readily available. * * *
Moreover, this Court finds that any
detrimental effects that may flow from the Act would flow most
directly from the plaintiff’s own misconduct and private citizen’s
82
Id. at 110 (quoting Perry v. Moskins Stores, Inc., Ky., 249
S.W.2d 812, 813 (1952)) (citations omitted).
83
Board of Regents v. Roth, 408 U.S. 564, 569, 92 S. Ct.
2701, 2705, 33 L. Ed. 2d 548, 556 (1972) (emphasis supplied).
84
711 A.2d 473 (Pa. Super. Ct. 1998)
85
Id. at 477-78 (citations omitted).
86
994 F. Supp. 849 (E.D. Mich. 1998).
-32-
reaction
thereto,
and
only
tangentially
from
state
action.”87
Although differing in its analysis, the United States Court of
Appeals for the Third Circuit reached the same result in Paul P. v.
Verniero.88
The Court noted that it had previously concluded that
the state interest “‘would suffice to justify the deprivation even
if a fundamental right of the registrant’s were implicated.’
*
*
*
The public interest in knowing where prior sex offenders live so
that susceptible individuals can be appropriately cautioned does
not differ whether the issue is the registrant’s claim under the
Double Jeopardy or Ex Post Facto Clauses, or is the registrant’s
claim to privacy.”89
Considering Hyatt’s claim under the U.S. Constitution, we
conclude that no privacy interest is implicated. Thus, we need not
consider the procedural due process required on this claim under
that Constitution.
Assessing Hyatt’s claim under the Kentucky
Constitution, we reach the same conclusion.
Assuming arguendo that the U.S. Constitution does not
guarantee the right of privacy in these circumstances, Hyatt draws
our attention to the fact that the Kentucky Supreme Court has
87
Id. at 855.
Under Michigan sex offender registration
statute effective at the time of the Lanni case, Michigan’s sex
offender registry contained “name, aliases, address, physical
description, birth date, and offense of conviction.” Id. at 852.
The registry is organized by ZIP code, which limits who has access
to the information.
Michigan also maintains a registry only
accessible to law enforcement agencies, which has the following
information: “offender’s name, social security number, address, a
brief summary of information regarding each conviction, a complete
physical description, blood type, and DNA information.” Id. at
851.
88
170 F.3d 396 (3d Cir. 1999).
89
Id. at 404 (internal citation omitted).
-33-
recognized
an
expanded
right
of
privacy
under
our
state
constitution and in support cites Commonwealth v. Wasson.90
In
Wasson, the Court did recognize the right of individuals to engage
in homosexual sodomy — a right which had been rejected by the U.S.
Supreme Court in Bowers v. Hardwick91 as being protected under the
U.S. Constitution.
However, we find Hyatt’s argument unpersuasive
on privacy grounds in these circumstances.
The public’s need for
information outweighs Hyatt’s privacy interest.
In Lynch v. Commonwealth,92 the Supreme Court noted that
“the enjoyment of many personal rights and freedoms is subject to
many kinds of restraints under the police power of the state, which
includes reasonable conditions as may be determined by governmental
authority to be essential to public welfare, safety, and good order
of the people.”93
The Commonwealth has an interest in protecting
the public welfare and safety of all its residents.
this
power,
the
General
Assembly
has
In exercising
determined
that
the
registration of sex offenders and the distribution of information
regarding sex offenders is necessary to protect the public welfare
and safety.
In the absence of any constitutional infirmity, we
cannot fault this aim.
B.
PROCEDURAL DUE PROCESS RIGHTS REGARDING THE HEARING
1.
UNTIMELY ARRIVAL OF RISK ASSESSMENT REPORT
90
Supra, n. 74.
91
478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986).
92
Ky., 902 S.W.2d 813 (1995).
93
Id. at 816 (citing Mansbach Scrap Iron Co. v. City of
Ashland, 235 Ky. 265, 30 S.W.2d 968 (1930); Commonwealth v.
Mitchell, Ky., 355 S.W.2d 686 (1962)).
-34-
AND FAILURE OF DR. WAGNER TO ATTEND HEARING
Hyatt contends that the circuit court erred in admitting
Dr. Wagner’s risk assessment report even though it arrived the
morning of the hearing.
We believe that Hyatt’s procedural due
process rights were violated in the risk assessment hearing because
the
report
arrived
too
late
to
provide
Hyatt
notice
of
its
contents, to allow his counsel to read and digest it, and to allow
sufficient time for preparation, including calling expert witnesses
to counter Dr. Wagner’s conclusions.
Even though Hyatt has not established that he has a
privacy interest, he does have an interest in the risk assessment
being conducted in conformity with KRS 17.500-.991.
pointed
out
addressing
in
due
Belcher
process
v.
Kentucky
rights
in
a
As this Court
Parole
Board94
parole
proceeding
—
a
case
—
“[a
criminal] has a legitimate interest in a decision rendered in
conformity with the established procedures and policies; one which
is based upon consideration of relevant criteria.”95
And as the
Supreme Court said in Kentucky Central Life Insurance Co. v.
Stephens,96 “[n]ot always does due process require a trial or the
strict application of evidentiary rules and/or unlimited discovery
. . . .
Procedural due process is not a static concept, but calls
for such procedural protections as the particular situation may
94
Ky. App., 917 S.W.2d 584 (1996).
95
Id. at 587. See also Morrissey v. Brewer, 408 U.S. 471,
488-89, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484, 498-99 (1972)
(outlining the minimum due process requirements for a parole
revocation hearing, which includes the right to present witnesses
and to know the evidence to be presented against the parolee).
96
Ky., 897 S.W.2d 583 (1995).
-35-
demand.”97
The Court went on to say that “[w]hile determining
whether the process afforded is adequate, the court should consider
the
private
affected,
and
interests
the
affected,
fairness
and
the
governmental
reliability
of
the
interests
existing
procedures and the probable value, if any, of additional procedural
safeguards.”98
KRS 17.570 provides procedural safeguards guaranteed a
sex offender. In relevant part, the statute provides that:
(3) In making the determination of risk, the sentencing
court shall review the recommendations of the certified
provider along with any statement by a victim or victims
and any materials submitted by the sex offender.
(4) The court shall conduct a hearing in accordance with
the Rules of Criminal Procedure and shall allow the sex
offender to appear and be heard.
(5) The court shall inform the sex offender of the right
to have counsel appointed in accordance with KRS 31.070
and 31.110.
(6) The sentencing court shall issue findings of fact and
conclusions of law and enter an order designating the
level of risk.
97
Id. at 590 (citing Morrissey v. Brewer, 408 U.S. 471, 92
S. Ct. 2593, 33 L. Ed. 2d 484 (1972)). See also Commonwealth v.
Raines, Ky., 847 S.W.2d 724, 727 (1993), overruled on other grounds
by Commonwealth v. Howard, Ky., 969 S.W.2d 700 (1998) (citing
Matthews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976)).
98
Stephens, 897 S.W.2d at 590 (citing Palmer by Palmer v.
Merluzzi, 868 F.2d 90 (3d Cir. 1989).
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(7) The order designating risk shall be subject to
appeal.99
According to the U.S. Supreme Court:
An elementary and fundamental requirement of due process
in any proceeding which is to be accorded finality is
notice
reasonably
circumstances,
to
calculated,
apprise
under
interested
all
parties
of
the
the
pendency of the action and afford them an opportunity to
present their objections.
The notice must be of such
nature as reasonably to convey the required information,
and it must afford a reasonable time for those interested
to make their appearance.100
Likewise, in Memphis Light, Gas & Water Div. v. Craft,101 the Court
noted that “[t]he purpose of notice under the Due Process Clause is
to
apprise
the
affected
individual
of,
preparation for, an impending ‘hearing.’”102
and
permit
adequate
This notice includes
the opportunity to know what evidence will be presented against the
party and have adequate time to collect his own evidence to refute
it.
Here, the circuit court failed to address the risk
assessment report’s untimely arrival for review by Hyatt.
99
The
KRS 17.570(3)-(7).
100
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314, 70 S. Ct. 652, 657, 94 L. Ed. 865, ___ (1950) (internal
citations omitted).
101
436 U.S. 1, 98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978).
102
Id. at 14, 98 S. Ct. at 1563, 56 L. Ed. 2d at 42.
-37-
report arrived at approximately 9:00 a.m. for a 10:30 a.m. hearing.
The circuit court did delay the hearing until 11:30 a.m., but that
did not rectify the infirmity.
The court should have delayed the
hearing until the parties had been given an opportunity to read and
evaluate the report, and it should have given Hyatt an opportunity
to present witnesses on his behalf if desired. Although the amount
of procedural due process required is flexible, the circuit court
violated Hyatt’s procedural due process rights by failing to give
him timely notice of the contents of the report.
However, we reject Hyatt’s argument that the court erred
by failing to require Dr. Wagner’s attendance at the hearing.
Hyatt certainly had the right to compel Dr. Wagner’s attendance by
subpoena.
If Hyatt believes Dr. Wagner’s testimony is critical to
his challenge of the report’s conclusions, Hyatt may subpoena Dr.
Wagner on remand and subject him to cross-examination.
2.
HYATT’S INABILITY TO CALL EXPERT WITNESSES
Hyatt also insists that his due process rights were
violated
because
he
was
unable
to
call
expert
witnesses
challenge the conclusions reached in the assessment report.
to
We
agree.
Both the Fourteenth Amendment to the U.S. Constitution
and Section 11 of the Kentucky Constitution guarantee the right of
a defendant to call witnesses on his behalf.103
103
While due process
Mitchell v. Commonwealth, 225 Ky. 83, 7 S.W.2d 823, 824
(1928) (“Section 11 of the Constitution provides that in all
criminal prosecutions the accused has the right ‘to have compulsory
process for obtaining witnesses in his favor’.”); United States v.
Pierce, 62 F.3d 818, 832 (6th Cir. 1995) (“The right of a defendant
to establish a defense by presenting his own witnesses is a
(continued...)
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rights may be limited in certain proceedings, we believe that Hyatt
was entitled to notice of the report’s contents in order to be able
to present experts to testify during the risk assessment hearing.
The circuit court should have given Hyatt an opportunity
to call expert witnesses to refute Dr. Wagner’s risk assessment.
By failing to give Hyatt this opportunity, the court denied Hyatt
due process of law under the Fourteenth Amendment to the U.S.
Constitution and Section 11 of the Kentucky Constitution.
3.
FAILURE OF VICTIM TO TESTIFY
Finally, Hyatt argues that the victim should have been
forced to testify at the hearing.
He alleges that the victim’s
failure to testify violated his right to confront witnesses under
U.S. Constitution and Kentucky Constitution.
We disagree.
When an individual has been indicted for committing a
crime, he has a constitutional right to confront his or her
accusers.104
This right of confrontation has generally been held
only to apply to trials.105
103
(...continued)
fundamental element of due process.”) (citing Webb v. Texas, 409
U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972)).
104
U.S. Const. amend. VI (“In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him . . . .”); Ky. Const. § 11 (“In all criminal
prosecutions the accused has the right . . . to meet the witnesses
face to face . . . .”).
105
Nelson v. O’Neil, 402 U.S. 622, 91 S. Ct. 1723, 29 L. Ed.
2d 222 (1971). But see In re Oliver, 333 U.S. 257, 68 S. Ct. 499,
92 L. Ed. 982 (1948) (holding that the right applies to contempt
proceeding); Wilmer v. Committee on Character & Fitness, 373 U.S.
96, 83 S. Ct. 1175, 10 L. Ed. 2d 224 (1963) (concluding that the
right
is
applicable
to
bar
admission
proceedings);
Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527
(1967) (determining that the right applies to juvenile delinquency
(continued...)
-39-
This case is distinguishable because it involves a risk
assessment hearing pursuant to KRS 17.570, not a criminal trial.
Hyatt waived his constitutional right to confront the victim by
pleading guilty.106
The subsequent hearing is to determine the
potential for recidivism of the sex offender; the sex offender is
not being charged with a new crime.
Rather, the statutes subject
the sex offender to registration for a crime to which he has
previously pled guilty, or been found guilty by a judge or jury.
As we have concluded, the sex offender classification process
serves
a
regulatory
purpose
and
punishment upon an offender.
does
not
impose
additional
In considering Hyatt’s claim for
violation of his procedural due process rights, flexible due
process entitled him to a hearing to challenge the veracity of the
sex offender risk assessment report and to produce his own expert
witnesses.
His procedural due process rights do not extend to a
confrontation with the victim.
Thus, we conclude that a sex
offender does not have a right to confront the victim during the
risk assessment hearing.
105
(...continued)
proceedings); United States v. Ushery, 968 F.2d 575, 583 (6th Cir.
1992) (holding that a criminal defendant is not entitled to
confront during sentencing proceedings) (citing United States v.
Kikumara, 918 F.2d 1084 (3d Cir. 1990); United States v. Beaulieu,
893 F.2d 1177 (10th Cir. 1990)).
106
Centers v. Commonwealth, Ky. App., 799 S.W.2d 51 (1990)
(noting that a criminal defendant waives the right to confront
accusers by pleading guilty).
-40-
VI.
CONCLUSION
We affirm that portion of the Anderson Circuit Court
order upholding the constitutionality of KRS 17.500-.991.
For the
reasons stated, we reverse the order insofar as it classifies Hyatt
as a sex offender and remand this case for further proceedings
consistent with this opinion.107
EMBERTON, Judge, CONCURS.
DYCHE, Judge, CONCURS IN RESULT.
BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
BRIEF FOR APPELLEE:
Albert B. Chandler III
Attorney General
Carol R. Camp
Assistant Public Advocate
Frankfort, Kentucky
Anitria M. Franklin
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Anitria M. Franklin
107
In April 2000, the General Assembly enacted Senate Bill
263 which became effective immediately upon the Governor’s
signature. Senate Bill 263 eliminates the process of ordering a
risk assessment prior to the classification of a sex offender and
the entire classification scheme. On remand, the circuit court
shall conduct the hearing in accordance with the pre-2000
amendments.
In
this
opinion,
we
do
not
address
the
constitutionality of Senate Bill 263.
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