RICHARD G. RUSSELL v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 29, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001973-MR
RICHARD G. RUSSELL
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
INDICTMENT NO. 01-CR-002988
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, JOHNSON, AND PAISLEY, JUDGES.
DYCHE, JUDGE.
Richard Russell appeals the Jefferson Circuit
Court’s denial of his motion to dismiss the charge against him
of failing to comply with the sex offender registration
provisions of KRS 17.500-.540 (the “Sex Offender Registration
Act”).
Russell argues that the application to his case of KRS
17.510, as amended in 2000, violates the ex post facto
provisions of the United States Constitution.
He also contends
that the sex offender registration form he completed in 1996
constitutes a binding agreement with the Commonwealth that was
violated when he was charged with a felony.
We affirm.
On June 5, 1996, Russell was sentenced to one year in
prison on a charge of first degree sexual abuse.
On June 24,
1996, shortly before his release, Russell filled out a sex
offender registration form as required by KRS 17.510.
Under the
terms of the statute at that time, the offense of failing to
notify local probation and parole officers of an address change
was classified as a Class A misdemeanor.
The registration form
stated:
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 have a change of address, I am required
to notify the local probation and parole
office within 14 days. I further understand
that my failure to comply with this law is a
class A misdemeanor.
On April 11, 2000, the statute was amended to make the
offense of failing to report an address change a Class D felony.
On December 5, 2001, the Louisville Police tried
unsuccessfully to locate Russell at the address he had provided
on the 1996 form.
They subsequently discovered that he had
never lived there, and that he had resided at two different
addresses in 1999 and 2001.
He had not registered any of these
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changes of address with local probation and parole officials as
required by KRS 17.510.
On December 20, 2001, the Jefferson County Grand Jury
indicted Russell on two counts:
1) providing false, misleading,
or incomplete information on a sex offender registration form;
and 2) persistent felony offender, second degree.
The
indictment was subsequently amended to read as follows:
That on or about the 5th day of December,
2001, in Jefferson County, Kentucky, the
above named defendant, Richard Russell,
committed the offense of Providing False,
Misleading, or Incomplete Information on a
Sex Offender Registration Form, when being
required to register as a sex offender
pursuant to KRS 17.510, he (a) knowingly
provided false, misleading or incomplete
information on a sex offender registration
form by providing a false address; or (b)
having changed the address of his residence,
failed to register that change of address
with the local probation and parole in the
county in which he resided, on or before the
date of the change of such address.
After his indictment, Russell filed a motion to
dismiss, on the grounds that KRS 17.510 was being applied to him
in violation of the ex post facto provision of the United States
Constitution.
He argued that his case should be governed by the
original terms of KRS 17.510, under which the failure to report
an address change was classified as a misdemeanor rather than a
felony.
Furthermore, he maintained that the Commonwealth was
barred from seeking to impose a felony punishment on him because
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the Commonwealth was bound by the terms of the registration
form.
The circuit court rejected these arguments at a
hearing on July 2, 2002, and subsequently issued a written order
denying the motion to dismiss.
Russell entered a conditional
guilty plea pursuant to RCr 8.09, thus preserving his right to
appeal.
On August 19, 2001, Russell was sentenced to one year
in the penitentiary on the charge of failure to comply with the
sex offender registry.
was dismissed.
The persistent felony offender charge
The trial court ordered the sentence probated
and imposed a three-year term of supervision.
This appeal
followed.
In order to determine whether a law is ex post facto,
Kentucky follows the two-pronged test set out in Weaver v.
Graham, 450 U.S. 24, 29 (1981).
The law “must be retrospective,
that is, it must apply to events occurring before its enactment,
and it must disadvantage the offender affected by it.”
Id.
Russell has not met the first prong of the test.
The aim of the Sex Offender Registration Act is to
protect the safety of the public and to assist law enforcement
efforts.
See Hyatt v. Commonwealth, Ky., 72 S.W.3d 566, 572
(2002), cert denied, ___ U.S. ___ (2003).
Russell’s failure to
comply with the registration provisions was not a single,
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discrete offense but rather constituted an ongoing violation of
this fundamental statutory purpose.
Russell does not dispute that he met the definition of
a “registrant” under the statute both before and after the 2000
amendments.
See KRS 17.500(4).
He therefore had a continuing
duty to register his correct address under both versions of the
statute.
“A law is retrospective if it ‘changes the legal
consequences of acts completed before its effective date.’”
Purvis v. Commonwealth, Ky., 14 S.W.3d 21, 23 (2000)(citation
omitted).
Russell’s act of failing to comply was not
“completed” prior to the 2000 amendments.
Russell’s second argument, that the information form
he filled out in 1996 constitutes a binding agreement with the
Commonwealth, is not persuasive.
The fact that the form
notified Russell of the penalty for failing to register as it
stood at that time does not transform it into some sort of
“binding agreement” with the Commonwealth.
The Commonwealth
cannot enter into bargains forever guaranteeing the nature of
the penalty should the defendant decide to break the law at some
time in the future.
Russell attempts to liken his case to those of the
defendants in Fraser v. Commonwealth, Ky., 59 S.W.3d 448 (2001);
and Workman v. Commonwealth, Ky., 580 S.W.2d 206 (1979), who
relied to their detriment on agreements with the Commonwealth
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regarding penalties or charges for their past criminal behavior.
In Fraser, the defendant alleged that he had made a secret plea
agreement with the Commonwealth, and that he had performed his
part by testifying against his girlfriend regarding a murder
charge, whereas the Commonwealth had reneged on its promise to
recommend the minimum sentence for him.
In Workman, the
defendant agreed to submit to a polygraph on the understanding
that if the test indicated that he had no involvement in the
crime, the charge against him would be dismissed.
The defendant
passed the polygraph but the Commonwealth failed to dismiss the
charges.
In these cases, where there was detrimental reliance
by a defendant regarding sentencing or charges for past
offenses, and the Commonwealth benefited at the defendant’s
expense, the Kentucky Supreme Court held that the Commonwealth
must honor its commitment.
See Fraser, 59 S.W.3d at 458;
Workman, 580 S.W.2d at 207.
Russell’s case is clearly distinguishable.
The
Commonwealth derived no benefit when he completed the form since
he had already served his sentence.
The form merely informed
Russell of the current penalty for violating the statute; it did
not guarantee him a misdemeanor penalty for any future offenses.
The registration requirement in itself is not a penalty.
The
Kentucky Supreme Court has held that the requirement of
registration is a remedial, rather than a punitive, measure.
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Hyatt v. Commonwealth, Ky., 72 S.W.3d 566, 572 (2002).
Furthermore, “[a]ny potential punishment arising from the
violation of the Sex Offender’s Registration Act is totally
prospective and is not punishment for past criminal behavior.”
Id.
Russell has also claimed that the terms of the form he
filled out at the time of his release in 1996 were part of what
induced him to accept the plea offer in the original case in
1995.
There is nothing in the record to indicate that he had
even been informed of this provision at that time, or that it
played any part in his decision to plead guilty.
It strains the
bounds of credulity to believe that part of the inducement to
make a guilty plea was the prospect that at some time in the
future he would only be found guilty of a misdemeanor for
failing to notify probation and parole of a change in his
address.
Russell did not fill out the information sheet in
exchange for any “promises” made to him by the Commonwealth. The
registration form merely notified him of the registration
requirements and of the penalties as they stood at that time.
Thereafter he was subject to the legal maxim that “ignorance of
the law excuses no one.”
The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul J. Neel, Jr.
Appellate Public Advocate
Louisville, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky
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