COMMONWEALTH OF KENTUCKY v. DANIEL NEWMAN
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RENDERED:
September 10, 2004; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001384-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JOSEPH F. BAMBERGER, JUDGE
ACTION NO. 01-CR-00304
v.
DANIEL NEWMAN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, TAYLOR, AND VANMETER, JUDGES.
JOHNSON, JUDGE:
The Commonwealth has appealed from an order of
the Boone Circuit Court entered on June 12, 2002, which, after
determining that Daniel Newman was not required to register as a
sex offender, dismissed the indictment against him.
Having
concluded that the trial court did not err by determining that
Newman was not required to register as a sex offender or by
dismissing the indictment against him, we affirm.
The facts and procedural history of this case are
simple and not in dispute.
In 1990 Newman was convicted on four
counts of sodomy in the first degree,1 12 counts of sodomy in the
second degree,2 and five counts of sexual abuse in the first
degree.3
The crimes for which Newman was convicted occurred
during the years 1988 and 1989.
According to the record, Newman
was sentenced to a total of 15 years’ imprisonment, and was
discharged from prison on October 31, 1997.
On August 7, 2001,
a Boone County grand jury indicted Newman on three counts of
failing to register as a sex offender,4 and as being a persistent
felony offender in the first degree.5
On August 28, 2001, Newman
entered pleas of not guilty to all of the charges in his
indictment.
On November 21, 2001, Newman filed a motion to dismiss
the indictment against him, arguing, inter alia, that since “the
sex offender registration law was enacted after the date of the
commission of the [sex] offenses” for which Newman had been
convicted, he was not required to register as a sex offender.
Hence, according to Newman, he could not be prosecuted for
failing to register as a sex offender.
On June 12, 2002, after giving both parties time to
submit written memoranda in support of their respective
1
Kentucky Revised Statutes (KRS) 510.070.
2
KRS 510.080.
3
KRS 510.110.
4
KRS 17.510(11).
5
KRS 532.080(3).
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positions, the trial court granted Newman’s motion to dismiss
the indictment against him.
The trial court found that “[a]
review of the statutes, legislative history and case law would
indicate that [ ] Newman is not required to register” as a sex
offender.
This appeal followed.
The Commonwealth’s sole argument on appeal is that the
trial court erred by determining that Newman was not required to
register as a sex offender under KRS 17.500 et seq.
We disagree
and hold that Newman was not required to register as a sex
offender, and that the trial court therefore did not err by
dismissing the indictment against him.
As our Supreme Court recently noted in Hyatt v.
Commonwealth,6 the General Assembly first passed the Sex Offender
Registration Act (Act), which is codified at KRS 17.500 et seq.,
in 1994.7
The legislative history accompanying the passage of
the Act stated that the registration provisions were to “apply
to persons convicted after the effective date of this Act”.8
Since its enactment in 1994, the Act has been amended twice;
once in 1998 and again in 2000.
The legislative history
accompanying the 1998 amendments stated that the registration
6
Ky., 72 S.W.3d 566, 569 (2002).
7
The Act is commonly referred to as “Megan’s Law.”
8
See 1994 Kentucky Acts, Ch. 392, § 6. See also Hyatt, supra at 570 (noting
that the 1994 enactment “applied to any person who pled guilty or was
convicted of a sex crime after July 15, 1994”).
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provisions were to apply to “persons individually sentenced or
incarcerated after the effective date of this Act”.9
In the case at bar, it is not disputed that Newman was
convicted of the sex crimes at issue in 1990, and that he was
discharged from prison in 1997.
Hence, Newman was not required
to register under the 1994 version of the Act, since his
convictions occurred four years prior to the original enactment.
Similarly, Newman was not required to register after the passage
of the 1998 amendments, since he was not a person who had been
“sentenced or incarcerated after the effective date” of the 1998
amendments.
Therefore, prior to the passage of the 2000
amendments to the Act, Newman was not required to register as a
sex offender.
As we have noted, the Act was amended once again in
2000.
The legislative history accompanying these amendments
specifically provided that the registration provisions “shall
apply to all persons who, after the effective date of this Act,
are required under Section 16 of this Act to become registrants,
as defined in Section 15 of this Act” [emphasis added].10
Section 16 of Chapter 401, which is now codified at KRS 17.510,
provides in pertinent part as follows:
9
See 1998 Kentucky Acts, Ch. 606, § 199.
10
See 2000 Kentucky Acts, Ch. 401, § 37.
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(2) A registrant11 shall, on or before the
date of his or her release by the court, the
parole board, the cabinet, or any detention
facility, register with the appropriate
local probation and parole office in the
county in which he or she intends to reside.
The person in charge of the release shall
facilitate the registration process
[emphasis added].
Therefore, while Newman meets the statutory definition
of a “registrant,” he was not required to become “registered”
under the current version of KRS 17.510.
According to the
express terms of KRS 17.510, and the legislative history quoted
above, the current version of the Act places a duty to register
on “registrants” who have been or will be released by “the
court, the parole board, the cabinet, or any detention facility”
after the effective date of the 2000 amendments.12
In this case,
11
KRS 17.500(4), formerly Section 15 of Chapter 401, provides in full as
follows:
“Registrant” means:
(a) Any person eighteen (18) years of age or
older at the time of the offense or any
youthful offender, as defined in KRS
600.020, who has committed:
1. A sex crime; or
2. A criminal offense against a victim
who is a minor; or
(b) Any person required to register under KRS
17.510(6) or (7); or
(c) Any sexually violent predator.
12
See Peterson v. Shake, Ky., 120 S.W.3d 707, 709 (2003)(stating that “[i]t
is quite apparent that the 2000 amendments were only intended to apply to
persons who were required to become registrants following April 11, 2000”
[emphasis original]).
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Newman was discharged from prison in October 1997, which was
approximately three years prior to the effective date of the
2000 amendments.
Hence, Newman was not required to register
under the current version of the Act.
In sum, neither the original version of the Act which
took effect in July 1994, nor the 1998 or 2000 amendments to the
Act placed a duty upon Newman to register as a sex offender.
Accordingly, since Newman was not required to register as a sex
offender, the trial court did not err by dismissing the
indictment against him.
Based on the foregoing, the order of the Boone Circuit
Court is affirmed.
VANMETER, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Albert B. Chandler III
Attorney General
Steven N. Howe
Dry Ridge, Kentucky
David A. Smith
David A. Sexton
Assistant Attorneys General
Frankfort, Kentucky
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REPLY BRIEF FOR APPELLANT:
Gregory D. Stumbo
Attorney General
David A. Smith
Assistant Attorney General
Frankfort, Kentucky
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