LARRY JAMES TORUSIO, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 22, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000790-MR
LARRY JAMES TORUSIO, JR.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
ACTION NO. 96-CR-000510
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, AND MILLER, JUDGES.
MILLER, JUDGE:
Larry James Torusio, Jr., brings this appeal from
a March 2, 2000 order of the Jefferson Circuit Court.
We affirm.
In 1996, appellant pled guilty to sexual abuse in the
first degree and was sentenced to two years’ imprisonment, which
was ordered to run consecutively with a previous five year
sentence upon an assault conviction.
In December of 1999, the
Jefferson Circuit Court entered an Order For Sex Offender Risk
Assessment.
Appellant, through counsel, filed a motion
challenging the applicability of the Sex Offender Registration
Act1 (the Act)(codified as Kentucky Revised Statutes (KRS) 17.500
et seq.) to him, and challenging the constitutionality of the
Act.
Appellant’s motion was denied.
Following a risk
determination hearing, the circuit court entered an Order Of Sex
Offender Risk Determination classifying appellant as a “moderate
risk” sex offender.
This appeal follows.
By order entered September 26, 2000, the Court of
Appeals placed the above-styled appeal in “abeyance” pending
disposition in the Kentucky Supreme Court of Hyatt v.
Commonwealth, 2000-SC-0676-DG; Hall v. Commonwealth, 2000-SC0820-DG; and Commonwealth v. Sims, 2000-SC-1076-DG and 2000-SC0961-DG.
The Supreme Court handed down a decision in the
aforementioned appeals on February 21, 2002 in Hyatt v.
Commonwealth, Ky., 72 S.W.3d 566 (2002).
The Court of Appeals
subsequently entered an order directing appellant to show cause
why this appeal should not be “summarily affirmed under the
authority” of Hyatt.
Appellant responded that the constitutional
issues were disposed of by Hyatt, but that an issue remained
concerning interpretation of the Act.
We therefore summarily
affirm upon the constitutional issues and address the remaining
issue upon the merits.
Appellant argues that the circuit court erroneously
concluded that he must “register” under the Act.
Specifically,
appellant points out that he was sentenced in 1996; hence, he
believes the Act inapplicable to him.
1
The Sex Offender Registration Act generally requires a
person to register in certain circumstances after having been
convicted of a sex crime.
-2-
The Act was originally contained in 1994 Ky. Acts
Chapter 392 (1994 Act), which was entitled “AN ACT relating to
the registration of sexual offenders.”
Section 6 of the 1994
Act, in pertinent part, read:
[T]his Act shall apply to persons convicted
after the effective date of this Act.
(emphasis added).
Subsequently, the 1994 Act was amended by 1998 Ky. Acts
Chapter 606 (1998 Act), which was entitled “AN ACT relating to
Section 199 of the 1998 Act2, in
criminal justice matters.”
pertinent part, reads:
[T]his Act shall apply to persons
individually sentenced or incarcerated after
the effective date of this Act. (emphasis
added).
Juxtaposing Section 6 of the 1994 Act with Section 199
of the 1998 Act, we must conclude that Section 199 effectively
repealed Section 6.
Indeed, both sections deal with the same
subject matter, the applicability of the Act, and are clearly
repugnant to each other.
See Harco Corporation v. Martin, 271
Ky. 572, 112 S.W.2d 693 (1937).
Under Section 6, the 1994 Act applied only to those
individuals “convicted” upon its effective date.
By contrast,
Section 199 expanded the 1998 Act’s grasp to include individuals
“incarcerated” upon its effective date.
We interpret the term
“incarcerated” to mean simply being in jail or in prison.
2
By
It is an enigma as to why Section 6 of 1994 Ky. Acts
Chapter 392 and Section 199 of the 1998 Ky. Acts Chapter 606 were
not codified in Kentucky Revised Statutes but were rather placed
in Compiler’s notes after the codified sections of the
aforementioned Acts.
-3-
utilizing that term, we think the legislature intended that the
1998 Act apply to individuals who were confined in a penal
institution upon its effective date.
We view Section 199 as
effectively expanding the Act’s ambit to include individuals who
were convicted days, months, years, or even decades before its
enactment, but who were confined in a penal institution upon its
effective date.
Simply put, we believe the 1998 Act applies to
all individuals imprisoned upon its effective date.
We are buttressed in our interpretation by Hyatt, 72
S.W.3d 566.
Therein, Hyatt was sentenced to ten years’
imprisonment upon second degree rape and second degree sodomy in
1993.
Hyatt argued that “the Kentucky Registration and
Notification Statutes were not intended to apply to persons who
were convicted before July 15, 1994;” it appears Hyatt “was
assessed under the 1998 Act.”
Id. at 571.
Although this issue
was not specifically addressed, the Court, nevertheless, applied
the 1998 Act to Hyatt.
In sum, we conclude that Section 199 of the 1998 Act
repealed Section 6 of the 1994 Act.
We interpret Section 199 as
encompassing those individuals confined in a penal institution
upon its effective date.
As appellant was confined in a penal
institution upon the effective date of Section 199, we are of the
opinion that he must register under the Act.
For the foregoing reasons, the order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
-4-
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
J. David Niehaus
Daniel T. Goyette
Louisville, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Frankfort, Kentucky
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky
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