JAMES BLACK APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

JAMES R. BLACK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2011–CA–000079–MR

Decided: January 13, 2012

BEFORE:  KELLER, STUMBO, AND VANMETER, JUDGES. BRIEFS FOR APPELLANT:  Samuel N. Potter Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

James Black appeals from the Boone Circuit Court judgment sentencing him to one-year imprisonment for one count of failure to comply with sex offender registration, first offense.   For the following reasons, we affirm.

In 2004, Black was convicted in Kenton Circuit Court for two counts of promoting a sexual performance by a minor under the age of eighteen.   He received a seven-year prison sentence, a three-year period of conditional discharge, and was required to register as a sex offender.   In 2010, Black was indicted in Boone Circuit Court for failure to comply with sex offender registration, in violation of KRS  Double 17.510.   He filed pro se a petition for writ of habeas corpus and a motion for injunctive relief, arguing that the portion of the 2004 Kenton Circuit Court judgment requiring him to register as a sex offender violated the ex post facto clause of the United States Constitution and Kentucky Constitution, and therefore should be voided.   Specifically, Black claimed that the offense of promoting a sexual performance by a minor was not an offense which required registration under the version of Kentucky's Sex Offender Registration Act (“SORA”), codified at KRS 17.510 et seq., in effect at the time he committed the offense and thus he had no duty to register.

The Boone Circuit Court denied his motions for lack of jurisdiction, finding that this matter should have been raised in Kenton County.   Black then entered a plea of guilty to the charge of failure to comply with sex offender registration, conditioned upon his right to appeal the Boone Circuit Court's denial of his request to set aside the portion of the Kenton Circuit Court judgment requiring registration.   Black was sentenced to one-year imprisonment.   This appeal followed. Double

The United States Constitution and the Kentucky Constitution prohibit ex post facto laws.   U.S. Const. art.   I, § 10;  Ky. Const. § 19.   The Kentucky Supreme Court has defined an ex post facto law as any law which

criminalizes an act that was innocent when done, aggravates or increases the punishment for a crime as compared to the punishment when the crime was committed, or alters the rules of evidence to require less or different proof in order to convict than what was necessary when the crime was committed.

Buck v. Commonwealth, 308 S.W.3d 661, 664 (Ky.2010) (citations omitted).

In 1994, the General Assembly enacted Kentucky's first version of SORA.1994 Ky. Acts ch. 392.   It required persons convicted of certain sex crimes to register as sex offenders after release from confinement, probation, parole, or any other form of supervised release, and provided a penalty for failing to register, or for providing false or misleading information.  Id. The Act was subsequently amended, notably in 2000, to include the offense of promoting a sexual performance by a minor, KRS 531.320, as an offense which required sex offender registration.   2000 Ky. Acts, ch. 401, § 15.

Black was convicted and sentenced in 2004 for the offense of promoting a sexual performance by a minor, based upon conduct which took place between 1997 and 1999.   He argues that applying the 2000 SORA amendments to require him to register as a sex offender would be a retroactive application of the law, and a violation of the ex post facto clause, since the date of the offense occurred prior to the effective date of the 2000 SORA amendments.

Black is correct that when he committed the offense of promoting a sexual performance by a minor, the law did not require him to register as a sex offender.   However, since he is unable to satisfy the second prong of the ex post facto test set forth in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), his claim fails.  Graham articulated a two-prong test to determine whether application of a criminal or penal law was ex post facto:  the law “must be retroactive, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.”   Graham, 450 U.S. at 29, 101 S.Ct. at 964 (citations omitted) (emphasis added).   See also Lattimore v. Corr. Cabinet, 790 S.W.2d 238 (Ky.App.1990) (applying Graham analysis and holding that to be ex post facto, a law must directly effect the amount of time a prisoner remains behind bars or receives an increase in punishment).

The Kentucky Supreme Court has held, post-Graham, that sex offender registration requirements do not amount to ex post facto punishment since they do not “disadvantage” the offender.  Hyatt v. Commonwealth, 72 S.W.3d 566, 571 (Ky.2002).   In Hyatt, the defendant was sentenced in 1993 to five years' imprisonment, to be served consecutively, for sex offense convictions.  Id. at 570.   In 1999, the circuit court classified Hyatt's risk assessment status pursuant to the 1998 SORA amendment, which Hyatt argued violated ex post facto laws since the plain language of the 1998 amendment provided that its provisions were to apply to persons sentenced or incarcerated after its effective date of enactment.  Id.

The Supreme Court rejected Hyatt's ex post facto claim and held that “[a]ny potential punishment arising from the violation of [SORA] is totally prospective and is not punishment for past criminal behavior.”  Id. at 572.   In other words, “the designation of sexual predator is not a sentence or punishment but simply a status resulting from a conviction of a sex crime.”   Id. Since Hyatt was unable to show that he was disadvantaged by being required to register as a sex offender, the Court held that the registration requirements did not amount to an ex post facto punishment.  Id. at 571.   See also Martinez v. Commonwealth, 72 S.W.3d 581, 584 (Ky.2002) (holding that application of the 1998 and 2000 SORA registration requirements to defendant who was released from incarceration after their effective dates does not violate ex post facto laws since defendant failed to show he was disadvantaged in a penal fashion);  Bray v. Commonwealth, 203 S.W.3d 160, 163–64 (Ky.App.2006) (holding that application of the 1998 and 2000 SORA registration requirements to defendant who received ten-year sentence in 1991 for sex offense convictions does not violate ex post facto laws).   Cf. Peterson v. Shake, 120 S.W.3d 707 (Ky.2003) (holding that sex offender registrant released in 1999 not subject to 2000 version of SORA because 2000 version applies only to those who are required “to become registrants” after its effective date).

In 2010, the Kentucky Supreme Court once again held that application of the 2000 and 2006 SORA registration requirements does not constitute ex post facto punishment.  Buck, 308 S.W.3d 661.   In Buck, the defendant was convicted in 1985 of a sex offense and received a three-year probated sentence.  Id. at 664.   In 1987, Buck was convicted of two unrelated felonies (second-degree assault and second-degree burglary) and received a twenty-three year sentence for all three convictions.  Id. In 1997, Buck was released on parole, and was not required to register under the 1994 version of SORA because it applied only to those convicted after its effective date.  Id. Buck violated the terms of his parole in 2000 and returned to prison.  Id. In 2001, he received parole, the terms of which he violated in 2002, and again he returned to prison.  Id. In 2005, he was granted parole once more.  Id.

In 2006 (after the effective date of the 2006 SORA amendments), Buck was indicted for failure to register as a sex offender under the terms of the 2006 SORA amendments.  Buck, 308 S.W.3d at 664.   Buck entered a conditional guilty plea, reserving the right to appeal the circuit court's denial of his motion to bar prosecution on ex post facto grounds.  Id. On discretionary review, the Supreme Court held that because Buck became a person incarcerated after the effective date of the 1998 SORA amendments, he became subject to the 2000 SORA amendments when he returned to prison and was required to register upon his release.  Id. Thus, prosecution for failure to register does not violate ex post facto laws.  Id. In so ruling, the Court noted,

[w]hile a sex offender's past conduct is the reason he or she is required to register, the failure to register occurs in the present.   An increase in the degree of the offense for failing to register would only present an ex post facto issue if the act of failing to register occurred prior to the effective date of the amendment.

Id. at 667.   In addition, the Court held that application of the 2006 SORA amendments does not constitute ex post facto punishment because “the constitutional proscription against ex post facto laws does not extend to enhancing punishment for an offense committed after the effective date of a criminal statute by reason of status as a prior offender.”  Id. (citations omitted).

In 2011, the Kentucky Supreme Court rendered Commonwealth v. Nash, 338 S.W.3d 264 (Ky.2011), in which it held that the defendant was not required to register under 1994 SORA or any subsequent amendments thereto for his 1993 conviction and sentence for sex offenses.   Nash was released from incarceration in 1997, and in 2007, was indicted for failure to comply with SORA's registration requirements.  Id. at 265.   The Court found that Nash was never required to register under the 1994 version of SORA since his conviction predated its enactment, and that the subsequent amendments to SORA did not apply to Nash since he was released from incarceration before their enactment.  Id. at 267.

In the case at bar, Black was convicted and sentenced in 2004 for committing the offense of promoting a sexual performance by a minor.   While the offense did not require registration at the time he committed it (1997 and 1999), the 2000 version of SORA, which required registration for that offense, was in effect when Black was convicted and sentenced in 2004.   Since Black has failed to show that he was disadvantaged, requiring registration under SORA's provisions does not constitute ex post facto punishment, and his conviction for failure to register must stand.

The judgment of the Boone Circuit Court is affirmed.

ALL CONCUR.

VANMETER, JUDGE: