WENDELL BONNER v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 6, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2002-CA-002037-MR
WENDELL BONNER
v.
APPELLANT
APPEAL FROM LEWIS CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
INDICTMENT NO. 00-CR-00083
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * *
BEFORE:
JOHNSON, TAYLOR, AND VANMETER, JUDGES.
VANMETER, JUDGE:
Wendell Bonner appeals from a judgment and
sentence on a plea of guilty that adjudged him guilty of sodomy
in the second degree and incest.
Bonner challenges the trial
court’s designation of him as an “eligible sexual offender”
under Kentucky Revised Statutes (KRS) 197.410, and refusal to
conduct an evidentiary hearing on the issue of whether he was
mentally retarded, and thereby not subject to classification as
an eligible sexual offender.
We affirm.
On December 1, 2000, the Lewis County grand jury
indicted Bonner on one felony count of sodomy in the first
degree (KRS 510.070) and one felony count of incest (KRS
430.020) involving alleged deviate sexual intercourse with his
four-year-old son.
In February 2001, Bonner’s attorney filed a
motion for a mental evaluation pursuant to KRS 504.100 for
purposes of determining Bonner’s competency to stand trial.
On October 19, 2001, the trial court conducted an evidentiary
competency hearing with Dr. Barbara Johnson and Bonner’s mother
as witnesses.1
On October 31, 2001, the trial court entered an
order finding Bonner competent to stand trial within the meaning
of KRS 504.060(4).2
On June 7, 2002, Bonner entered a guilty plea to the
one count of incest and an amended count of sodomy in the second
1
See KRS Chapter 504. While the record on appeal includes a transcript of
several pretrial hearings, it does not contain a transcript of the competency
hearing. Prior to the competency hearing, Dr. Johnson, a licensed
psychologist, performed an evaluation of Bonner. In her report dated April
3, 2001, Dr. Johnson stated a Wechsler Abbreviated Scale of Intelligence
(WASI) test resulted in an intelligence quotient (I.Q.) score of 55, which
was at the low end of the mild mental retardation range. Dr. Johnson
indicated that Bonner may not have given maximum effort, so the WASI score
may have been an underestimate of his I.Q., but it likely still fell within
the range of mild mental retardation. During the evaluation interview,
Bonner told Dr. Johnson that he was enrolled in special education classes
throughout most of his school years. Dr. Johnson opined that Bonner was
competent to stand trial. A copy of the report was provided to defense
counsel, the Commonwealth, and the trial court.
2
The trial court, in its October 31, 2000 order, found that “[Bonner’s]
intelligence lies within the mildly retarded range and that his actual
intelligence is higher than the WASI score would indicate based on his
vocabulary which is broader than one would expect from a person scoring only
fifty-five as a full scale IQ score. . . .” The court also found that Bonner
may not have given his maximum effort and that fifty-five was probably an
underestimate of his intellectual ability.
2
degree (KRS 510.080) pursuant to a plea agreement with the
Commonwealth, which recommended concurrent sentences of ten
years on each count.
On July 22, 2002, the trial court ordered
the Department of Corrections, Division of Mental Health, to
conduct an evaluation of Bonner and to submit a comprehensive
sex offender presentence evaluation to the court pursuant to KRS
532.050(4).
On August 16, 2002, Bonner filed a motion for
probation wherein he maintained that he should not be subject to
the prohibition to probation for sexual offenders under KRS
532.045 because of his mental retardation.
The same day, the
trial court conducted a sentencing hearing and considered the
probation motion.
At the hearing, defense counsel questioned a
statement in the sexual offender pre-sentence evaluation report
indicating that Bonner had an I.Q. of 71.
Defense counsel noted
the prior report of Dr. Johnson stating Bonner’s I.Q. was 55.
He cited the recent case of Hyatt v. Commonwealth, Ky., 72
S.W.3d 566 (2002), cert. denied, 538 U.S. 909, 123 S.Ct. 1481,
155 L.Ed.2d 230 (2003), and requested an opportunity for a
hearing to cross-examine the author of the sex offender
evaluation report.
The trial court expressed its belief that
counsel was entitled to a copy of the report but doubted whether
he had a right to challenge the presentence evaluation report.
The court postponed final sentencing pending review of the
3
recent case law.
Bonner subsequently filed a memorandum
reiterating potential areas of inquiry concerning the sexual
offender evaluation report, the need for reliable sentencing
information, and the need for an adversarial hearing to
controvert the results of the psychosexual report.
On September 6, 2002, the trial court conducted a
final sentencing hearing.
Defense counsel argued that he was
entitled to present evidence challenging the sexual offender
evaluation under KRS 532.050(6) and Bonner’s classification as a
sexual offender.
The trial court denied the motion for
probation and request to cross-examine the author of the sexual
offender pre-sentence evaluation.
The trial court indicated
that the Department of Corrections psychologists were authorized
to determine sex offender eligibility and that it did not have
to hold an adversarial hearing on that issue.
The record
however is confusing in that the trial court appears to defer to
the Department of Corrections to make the determination of
whether the appellant was an “eligible sex offender,” but upon
defense counsel seeking clarification, the trial court states
“[h]e is an eligible sex offender.”
The court entered a
Judgment and Sentence on a plea of guilty sentencing Bonner to a
total of 10 years on two concurrent 10-year sentences for sodomy
in the second degree and incest consistent with the plea
agreement.
In addition, the court entered a Judgment of
4
Registration Designation finding Bonner guilty of a sex crime
under the sexual offender statutes and ordering him to register
with the appropriate parole officer for a period of 10 years.
The written judgment of the trial court, however, nowhere
designates the appellant an “eligible sex offender” within the
meaning of KRS 197.410.
This appeal follows.
Bonner contends that he was denied his right to due
process and confrontation by the trial court’s refusal to
conduct an adversarial hearing on his classification as an
“eligible sex offender” for the sex offender treatment program.
While Bonner complains that the trial court
impermissibly recognized him as an eligible sex offender, the
oral record is not clear whether the trial court intended to so
designate him, and the written judgment contains no such
finding.
Thus, the written judgment controls. Commonwealth v.
Hicks, Ky., 869 S.W.2d 35, 37-38 (1994).
The written judgment
of the trial court merely recognizes that appellant is a sex
offender, a status imposed by the legislature by virtue of
appellant’s conviction of sexual offenses of sodomy and incest.3
As to any designation as an “eligible sex offender,” appellant
3
Under KRS 197.410(1), a “sexual offender” is any person adjudicated guilty
of any felony under KRS Chapter 510, e.g., sodomy in the second degree, or
adjudicated guilty of any felony under KRS 530.020, incest. While appellant
cites Hyatt v. Commonwealth, supra, to argue that he was entitled to a
hearing, that decision specifically addressed sexual-offender risk
assessments hearings. In 2000, KRS 17.500, et seq., was modified such that
such hearings are no longer held.
5
fails to recognize that the legislature has given the Department
of Corrections the authority to recognize him as such.
197.410(2).
See KRS
We find the trial court to have been acting within
its discretion to defer making a finding on this issue.
In
short, we view Bonner’s motion as a “pre-emptive strike”
designed to absolve him of the requirement to complete sexual
offender treatment program, prior to any demonstration that he
is unable to complete the program.4
If the appellant is unfairly
characterized as an eligible sexual offender by the Department,
he has recourse to file a declaration of rights action against
the Department.
For the foregoing reasons, we affirm the judgment of
the Lewis Circuit Court with reference to the designation of
Bonner as a sexual offender.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David Eucker
Frankfort, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
4
An interesting note is that appellant complains his mental deficiencies
prevent him from completing the sex offender treatment program under the
auspices of the Department of Correction. Paradoxically, when arguing to the
trial court that probation was appropriate, the appellant’s counsel suggested
that he needed outpatient treatment, both psychological and sexual offender,
in the community, implicitly admitting that appellant could benefit from
treatment.
6
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