Commonwealth of Kentucky v. Nash
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Appellee was convicted of a first offense violation of Kentucky's Sex Offender Registration Act ("SORA"), KRS 17.510(11), and of being a second-degree persistent felony offender. At issue was whether appellee was required to register for his 1993 conviction of sodomy in the third-degree under the 1994 SORA or any amendments thereto. The court held that appellee was never required to register under any version of SORA and, therefore, could not be guilty of the crime of failing to register. Accordingly, the court vacated the judgment and sentence and ordered the release of appellee.
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RENDERED : MAY 19, 2011
TO BE PUBLISHED
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2010-SC-000065-DG
COMMONWEALTH OF KENTUCKY
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2007-CA-002118-MR
FAYETTE CIRCUIT COURT NO . 07-CR-00034
V.
ANTHONY NASH
APPELLEE
OPINION OF THE COURT BY JUSTICE SCHRODER
VACATING AND REMANDING
Appellee, Anthony Nash, was convicted, pursuant to a conditional guilty
plea, of a first offense violation of Kentucky's Sex Offender Registration Act (a
Class D felony), and being a second-degree persistent felony offender . Because
Appellee was not required to register as a sex offender, we vacate the opinion of
the Court of Appeals, and likewise we vacate the convictions, and remand to
the trial court with instructions to dismiss the indictment.
FACTS
Appellee was convicted of burglary in the third degree (Class D felony) on
June 23, 1992, for which he received a one-year sentence. With all his credits,
he served out his sentence on February 1, 1993. He was convicted of two
counts of third-degree sodomy (Class D felonies) on December 14, 1993 . He
received a three-year sentence on each count, to be served consecutively, for a
total of six years . Appellee was paroled November 26, 1996, and revoked in
March of 1997 . He served out the remainder of his sentence and was released
on October 1, 1997.1 On April 26, 1999, Appellee was convicted of receiving
stolen property over $300 in value (a Class D felony) and being a second-degree
persistent felony offender, for which he received a five-year sentence . With
credits, he served out his sentence and was released on December 31, 2001 .
On January 9, 2007, a Fayette County grand jury returned an
indictment2 charging Appellee for non-compliance with Kentucky's Sex
Offender Registration Act (SORA),3 in violation of KRS 17.5 10(11) . The
indictment alleged, in pertinent part:
Count 1 : On or about the 25th day of October, 2006,
in Fayette County, Kentucky, the above named
defendant committed the offense of Failure to Comply
i The record is not entirely clear on some dates and facts, but the Assistant Attorney
General, James C. Shackelford, in a display of candor to the Court, provided
opposing counsel and the Court with the "Kentucky Corrections Resident Record
Card[s]" of the Appellee . At the beginning of oral argument, the Chief Justice
announced the filing (treated as a motion to supplement the record) would be
granted and accepted into the record. Counsel for the Appellee, Samuel N. Potter,
publicly thanked Mr. Shackelford for his filing and candor . The "Resident Record
Cards" gave the parties and the Court the facts needed that were missing from the
hazy record. During oral argument, counsel, as well as the Court, discussed the
case assuming the "Resident Record Cards" were accurate . At the end of oral
argument, Chief Justice Minton complimented both attorneys for acting
professionally and for presenting "the truth." For judicial economy, the Court is
accepting the supplemental record as accurate, or "the truth," of the missing facts
without the need for further stipulations of fact, nor the need for a remand to the
trial court for further findings of fact. For purposes of this case, we are accepting
the "Resident Record Cards" as reliable evidence of the missing facts .
2 Fayette Circuit Court Case No. 07-CR-00034 .
3 KRS 17.500 et seq.
With Sex Offender Registration by failing to notify the
appropriate law enforcement agency of his change of
address, having been convicted as a sex offender in
Fayette County, Kentucky in 1993 and having been
previously convicted in Fayette District Court of
Failure to Comply With Sex Offender Registration in
2006 and 2005[.]
As a subsequent offense, the charge in Count 1 was a Class C felony.4 Count 2
of the indictment charged Appellee with being a second-degree persistent felony
offender (PFO II) based on his previous felony conviction for receiving stolen
property .
On March 30, 2007, Appellee filed a motion to amend the indictment for
the registration violation to a Class A misdemeanor on grounds that the
application to him of the 2006 amendments to SORA 5 was unconstitutional on
ex post facto grounds. The trial court denied Appellee's motion .
On August 31, 2007, Appellee entered a conditional guilty plea to failure
to comply with the Sex Offender Registration Act, first offense (a Class D
felony),6 and PFO II, reserving the right to appeal from the trial court's denial of
his motion to amend the indictment. (Fayette Circuit Court Case No . 07-CR00034) . On September 13, 2007, Appellee received a five-year sentence for the
Class D felony, enhanced to ten years by the PFO II . The trial court probated
the sentence for five years . This case (07-CR-00034) is the subject of the
appeal herein .
4 KRS 17.510(11) .
5 2006 Ky. Acts ch. 182.
6 Per the plea agreement, the charge was amended to a first (Class D felony), rather
than subsequent (Class C felony), offense.
The record indicates that in 2008, Appellee was again convicted of failing
to comply with SORA, first offense (another Class D felony), for which he
received a five-year sentence to run consecutively with his prior ten-year
sentence, for a total of fifteen years to serve (Fayette Circuit Court Case No. 08CR-00075) .7 Appellee's probation on the earlier ten-year sentence was revoked .
Appellee is scheduled to be released on a serve out sometime between July 11,
2016, and September 11, 2021, depending upon credits earned, etc .
The Court of Appeals reversed Appellee's conviction in 07-CR-00034 in
an opinion rendered January 22, 2010, concluding the application of the 2006
SORA amendments (which increased the penalty on those required to register
under current or prior law from a Class A misdemeanor to a Class D felony)$
was an ex post facto law as applied to Appellee . On April 22, 2010, this Court
rendered Buck v. Commonwealth, 308 S .W .3d 661 (Ky. 2010), upholding the
constitutionality of the 2006 amendments to SORA. The Commonwealth
requested discretionary review, which this Court granted on October 13, 2010.
Before this Court, Appellee argues for the first time that he was never required
to register for the 1993 conviction under the 1994 SORA or any amendments
thereto . Appellee is correct.
Kentucky's Sex Offender Reiistration Act
To fully understand this case we need to look at the original requirement
for certain sex offenders to register, and the amendments thereto, to date. KRS
7 The record shows two different dates for this conviction - June 27, 2008 and July
15, 2008 . Either date does not affect the outcome of this case .
8 Class C for subsequent offense.
17 .500 et seq. is commonly referred to as Kentucky's version of "Megan's Law,"9
or the "Sex Offender Registration Act" (SORA) .10 The first version was adopted
by the General Assembly in 1994. 11 Under this version, persons convicted of
certain sex crimes12 after the effective date of the Act, July 15, 1994, were
required to register for a period of ten years after their final release from prison,
parole, probation, etc. Failure to register, or providing false, misleading, or
incomplete information was deemed a Class A misdemeanor. 13 The Act only
applied to those convicted of a qualifying sex crime after the effective date of the
Act, July 15, 1994, regardless of the release date. 14 Appellee was convicted of
the sex crimes at issue on December 14, 1993. Under the clear wording of the
1994 Act, he was not required to register upon conviction or release .
In 1998, SORA was amended. 15 "The principal change . . . was the
creation of a classification as to the potential for recidivism . The law also
provided for a risk assessment ." 16 The 1998 Act provided the registration
requirements "shall apply to persons individually sentenced or incarcerated
9 Hyatt v. Commonwealth, 72 S.W.3d 566, 569 (Ky. 2002) .
10
1994 Ky. Acts ch. 392, § 5.
11
1994 Ky. Acts ch. 392 .
12
1994 Ky. Acts ch. 392, § 1(4) .
13
1994 Ky. Acts ch. 392, § 2(8) 8s (9) .
14
1994 Ky. Acts ch. 392, § 6; Hyatt, 72 S.W.3d at 570 .
15
1998 Ky. Acts ch . 606, §§ 138-155 .
16
Hyatt, 72 S.W.3d at 570 .
after the effective date of this Act [July 15, 1998] ." 17 Appellee had served out
on his qualifying sex crimes on October 1, 1997. Under the 1998 amendments
to SORA, Appellee was not required to register .
SORA was amended again in 2000 . 1 8 This amendment eliminated the
need for a risk assessment, based the length of registration on the offense
committed, and required the registrant to register on or before the day of
release . 19 This amendment also placed residency restrictions on a registrant
released on probation, parole, or supervised release .20 The penalty for failing to
register, or for providing false or misleading information, was increased from a
Class A misdemeanor to a Class D felony. 21 The 2000 amendment applied to
"all persons who, after the effective date of this Act [April 11, 2000], 22 are
required under . . . this Act to become registrants[. 1"23 Appellee committed his
sex crimes in 1993 and was released on a serve out on October 1, 1997 . Under
the 2000 amendments, Appellee had no requirement to register .24
17
1998 Ky. Acts ch. 606, § 199 (emphasis added) . Some provisions of the Act became
effective July 15, 1998, some effective December 1, 1998, and the rest became
effective January 15, 1999 .
18 2000 Ky. Acts ch . 401 .
19
20
21
22
23
24
2000 Ky. Acts ch . 401, §§ 16-18.
2000 Ky. Acts ch . 401, § 29.
2000 Ky. Acts ch . 401, § 16 (11) 8v (12) .
2000 Kentucky Acts Chapter 401, Section 40, declared an emergency . Being an
emergency, the effective date of the 2000 amendments was April 11, 2000. Buck,
308 S .W.3d at 663 8, 666, erroneously stated the effective date as July 2000, which
error does not affect the holding therein .
2000 Ky. Acts ch . 401, § 37 . See Peterson v. Shake, 120 S .W.3d 707 (Ky. 2003) .
See Commonwealth v. Newman, 145 S.W.3d 416 (Ky. App. 2004) .
SORA was amended again in 2006 .25 The 2006 amendments subjected
those required to register under this or prior law to a Class D felony for the first
offense of violating the registration law and enhanced the penalty for
subsequent offenses to a Class C felony .26 The amendments also expanded the
residency restrictions and increased the penalty for violating such .27 As
Appellee was not required to register under prior versions of SORA, he was not
required to register under the 2006 revisions.
SORA was revised in 2007 to include human trafficking involving
commercial sexual activity of minors,28 reorganizations, etc.,29 none of which
are involved in the case herein . SORA was amended in 20083° to deal with the
collection, etc ., of DNA samples of registrants . Again, this was not an issue in
the case of Appellee.
Appellee was never required to register under any version of SORA.
ANALYSIS
Appellee entered a conditional guilty plea to the registration violation
charge (and PFO II), reserving the right to appeal the trial court's denial of his
25
26
2006 Ky. Acts ch. 182 .
2006 Ky . Acts ch . 182, § 6(11) 8v (12) . This amendment supercedes our holding in
Peterson, to the extent that those required to register under prior law are also
subject to a Class D felony for first offense of violating the registration law and
Class C for subsequent offenses . In Buck, 308 S.W.3d 661, we held that increasing
the penalty before a violation occurred did not violate the prohibition on ex post
facto laws.
27
2006 Ky. Acts ch. 182, § 3.
28
2007 Ky. Acts ch. 19, § 8(3).
29
30
2007 Ky. Acts ch . 85, §§ 99-103 .
2008 Ky. Acts ch. 158, §§ 12-14.
motion to amend (on ex postfacto grounds) . His argument that he never had to
register was not made below, having first been made to this Court, and hence
is not preserved . This Court therefore reviews for manifest injustice . RCr
10 .26 .
On appeal from a conditional guilty plea, this Court will consider an
issue which "involve[s] a claim that the indictment did not charge an offense or
the sentence imposed by the trial court was manifestly infirm[ . ]" 31 Appellee
was never required to register under any version of SORA. As he was not
required to register, he cannot be guilty of the crime of failing to register, and
any sentence imposed would be manifestly infirm . Under the facts of this case,
the indictment should be dismissed .32 As'it stands, the Appellee sits in prison
wrongfully convicted .
CONCLUSION
For the foregoing reasons, the opinion of the Court of Appeals is vacated
and the judgment of the Fayette Circuit Court is likewise vacated, and the
matter remanded directly to the Fayette Circuit Court, with instructions to set
aside or vacate the judgment and sentence in the above-styled case, and to
dismiss the indictment therein, and to order the release of the Appellee,
Anthony Nash, from these charges .
Abramson, Cunningham, Noble, and Scott, JJ., concur. Venters, J.,
dissents by separate opinion in which Minton, C.J., joins .
31
32
Dickerson v. Commonwealth, 278 S.W.3d 145, 149 (Ky. 2009) (emphasis added).
See Newman, 145 S .W.3d 416 .
VENTERS, J ., DISSENTING : This case presents what appears to be, and
what we must hope to be, truly remarkable and extraordinary circumstances .
Despite being prosecuted and convicted on three separate occasions for
violating the Sex Offender Registration Act, it now appears that Appellee was
innocent because he was never required to register as a sex offender in the first
place . What seems to be readily apparent to us now escaped the attention of
his lawyers, the prosecutors, and the judges three times. If true, that must
serve as a sobering reminder to all segments of the criminal justice system,
including this Court, how easy it is to overlook the obvious, and how quickly
one can fall through the cracks in the system . Nevertheless, I dissent.
The apparent facts upon which the Majority acts are enough to shake the
faith of the most ardent believers in our system . But they come before us on a
limited record, and arise in a most unorthodox means . I would, therefore,
temper the haste to correct this apparent injustice by respecting our
established process for ascertaining the facts - an evidentiary hearing in the
circuit court under RCr 11 .42 or CR 60.02 . Because I believe the Court of
Appeals misapplied the expost facto doctrine when it reversed Appellee's
conviction, I would reverse the Court of Appeals, and reinstate the original
judgment . Appellee could then proceed to file his post-conviction relief motions
so that the facts could arise in the conventional, orderly fashion. In so stating,
I presume the Commonwealth's candor and good faith would continue to
provide a tailwind to expedite consideration in the circuit court. If we presume
in this case that our own procedures for correcting such errors cannot act in
time to serve the needs ofjustice, then we have conceded to our fiercest critics
that the process is flawed and in need of repair.
Minton, C .J ., joins .
COUNSEL FOR APPELLANT :
Jack Conway
Attorney General
James Coleman Shackelford
Assistant Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Suite 200
Frankfort, KY 40601-8204
COUNSEL FOR APPELLEE :
Samuel N. Potter
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
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