Opinion
NO. 2013-CA-001582-MR
02-06-2015
JAMES BLACK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Brandon Neill Jewell Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 13-CR-00158
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND MAZE, JUDGES. MAZE, JUDGE: James Black entered a plea of guilty in Kenton Circuit Court to one charge of failure to comply with sex offender registration, first offense, conditioned on his right to appeal the circuit court's denial of his petition for a writ of habeas corpus. Black argues that the registration requirement violates his right to equal protection under the Fourteenth Amendment of the United States Constitution.
In 2004, Black was convicted in Kenton Circuit Court of two counts of promoting a sexual performance by a minor, in violation of Kentucky Revised Statutes (KRS) 531.320. At the time Black committed the offenses, which according to the indictment occurred on or between January 1, 1997 and before April 13, 1999, promoting a sexual performance by a minor was not an offense requiring registration under Kentucky's Sex Offender Registration Act (SORA). KRS 17.500 et seq. SORA was amended in 2000, however, to add KRS 531.320 to the list of offenses requiring registration. KRS 17.500(3)(a)4. The 2000 amendment applied to "to all persons who, after the effective date of this Act [April 11, 2000], are required under ... this Act to become registrants[.]" 2000 Ky Acts ch. 401, § 37; Commonwealth v. Nash, 338 S.W.3d 264, 267 n. 23 (Ky. 2011). Under the terms of the 2004 judgment, Black received a seven-year prison sentence 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. He filed a 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 clauses of the United States Constitution and the Kentucky Constitution.
The Boone Circuit Court denied his motions. On appeal, a panel of this Court affirmed the judgment, holding that the registration requirement did not constitute ex post facto punishment. Black v. Commonwealth., 2012 WL 95577 (Ky. App. 2012) (2011-CA-000079-MR).
On March 7, 2013, Black was charged in Kenton Circuit Court with failure to comply with sex offender registration, second offense. KRS 17.510(11). The indictment alleged that he had knowingly failed to report a change of address. Black filed a pro se petition for a writ of habeas corpus, arguing that the registration requirement in the 2004 judgment was a violation of his right to equal protection, because he was being treated differently from other individuals who had committed the identical offense of promoting a sexual performance by a minor, but who, because they were sentenced prior to the 2000 SORA amendment, were not required to register. The circuit court denied his petition. Black entered a guilty plea to an amended charge conditioned on his right to appeal the denial of the petition, and this appeal followed.
As a preliminary matter, we address the Commonwealth's contention that a petition for habeas corpus relief was not the appropriate procedural means to raise Black's equal protection claim. The general rule is
that the RCr 11.42 procedure is adequate for a collateral attack by a prisoner in custody under a judgment which he believes to be defective for one reason or another. But we recognize as an exception that the prompt relief available by writ of habeas corpus remains for a prisoner who can establish in a summary procedure that the judgment by which he is detained is void ab initio.Commonwealth v. Marcum, 873 S.W.2d 207, 211-12 (Ky. 1994). When Black filed his petition, he was under detention for failure to comply with sex offender registration, second offense, not for the underlying 2004 judgment which imposed the registration requirement. On that basis, the Commonwealth contends that Black was not eligible for habeas relief because he was not actually being detained under the judgment he wished to challenge. Black has also not shown why an RCr 11.42 challenge would have been an inadequate remedy. See Wingo v. Ringo, 408 S.W.2d 469, 470 (Ky. 1966) (stating that the circuit court should not have entertained a habeas corpus petition because there was no showing of inadequacy of the remedy provided by RCr 11.42). The Commonwealth further asserts that a petition for a writ of habeas corpus should not be used as a substitute for other available remedies, such as a direct appeal from the 2004 judgment which imposed the registration requirement.
In response, Black argues that the way he styled his pleading should not be dispositive, and that the trial court did address his arguments and allow him to enter a guilty plea conditioned on his right to appeal the denial of his petition. In the interests of judicial economy, and because the issue presented is one of law, we will consider his appeal.
Black argues that he is similarly situated to others who committed the offense of promoting a sexual performance by a minor prior to the 2000 amendment of SORA, and that his equal protection rights have been violated because those "who were not incarcerated thereafter" are not required to register. This argument differs from the one he made in his petition to the trial court, in which he described the latter group as individuals who were "sentenced" prior to the 2000 amendment. He argues that he is entitled to strict scrutiny review of his claim because the registration requirement burdens his fundamental right to travel.
We apply strict scrutiny "when a statute significantly interferes with the exercise of a fundamental right." Moffitt v. Commonwealth, 360 S.W.3d 247, 254 (Ky. App. 2012) (internal citations and quotation marks omitted.) "Under this highest standard of review, the challenged statute can survive only if it is suitably tailored to serve a compelling state interest." D.F. v. Codell, 127 S.W.3d 571, 575 (Ky. 2003) (internal citation and quotation marks omitted.)
In Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009), the Kentucky Supreme Court held that the sex offender residency restriction statute, KRS 17.545, as amended in 2006, was punitive in effect and hence could not be applied retroactively. In arriving at that conclusion, the Court likened the effects of the amended residency restrictions to banishment. Baker, 295 S.W.3d at 444. Black contends that banishment implicates the fundamental right to travel, and hence that the registration requirements also implicate that fundamental right.
But Black was not charged and incarcerated for failing to comply with the residency restrictions that were the subject of the Baker analysis; the indictment clearly states that he was arrested for failing to notify the sex offender registry of his address change. Indeed, Black has not even demonstrated that the 2006 residency requirements at issue in Black are being applied retroactively in his case. See Buck v. Commonwealth, 308 S.W.3d 661, 667-68 (Ky. 2010) (discussing the "important difference between SORA and the sex offender residency restrictions at issue in Baker.")
Because he has failed to show that the registration requirement interferes in any way with a fundamental right, the differential treatment of Black and those individuals who committed the same offense but are not required to register is reviewed under the rational basis standard, which requires a classification to be upheld against an equal protection challenge "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Commonwealth v. Howard, 969 S.W.2d 700, 703 (Ky. 1998).
The Kentucky Supreme Court has reiterated that the SORA registration requirements do not constitute punishment and are designed to further the aim of protecting society and facilitating law enforcement, stating "[W]e continue to believe that SORA is a remedial measure with a rational connection to the nonpunitive goal of protection of public safety[.]" Buck, 308 S.W.3d at 667; Hyatt v. Commonwealth, 73 S.W.3d 566, 572 (Ky. 2002).
Moreover, if we decided that the registration requirement violates the equal protection clause simply because it is applied prospectively, such a holding would seriously hamper the General Assembly's ability ever to amend any laws. "The Fourteenth Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time. Frequently, changes in statutory regulations must be made so as to take effect after a given date without applying rigorously to previously established conditions." Harrell v. Wingo, 434 S.W.2d 49, 49-50 (Ky. 1968).
The circuit court did not err in denying Black's petition for a writ of habeas corpus, and its judgment is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Brandon Neill Jewell
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
John Paul Varo
Assistant Attorney General
Frankfort, Kentucky