Opinion
NO. 2012-CA-000701-MR
04-19-2013
CHARLES BROWNING KELLY, II APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Samuel N. Potter Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 11-CR-00763
OPINION
AFFIRMING
BEFORE: DIXON, LAMBERT AND TAYLOR, JUDGES. DIXON, JUDGE: Charles Browning Kelly, II, was indicted by the Fayette County grand jury on one count of failure to comply with sex offender registration pursuant to KRS 17.510(11). Kelly subsequently entered a conditional guilty plea to an amended charge of violating KRS 17.546 (registrant prohibited from using social networking web site or instant messaging or chat room program accessible by minors). The Fayette Circuit Court sentenced Kelly to a twelve-month term of incarceration, probated for two years. Kelly appeals the trial court's denial of his motion to dismiss the indictment on constitutional grounds. After careful review, we affirm.
The underlying facts of the indictment against Kelly related to his failure to register his online Facebook account with probation and parole, as required by KRS 17.510(10)(c). Kelly filed a motion to dismiss the indictment, arguing that KRS 17.510(10)(c) was an unconstitutional ex post facto law, that the provision abridged Kelly's freedom of speech and that it denied him equal protection. Kelly tendered a memorandum supporting his arguments, and the Commonwealth filed a response. Following a brief hearing, the court denied Kelly's motion. The court stated that it agreed with the points raised by the Commonwealth, and the court adopted the Commonwealth's response as its ruling. Shortly thereafter, Kelly agreed to enter a conditional guilty plea to an amended charge that he violated KRS 17.546 by visiting a prohibited social networking site accessible to minors. Kelly reserved the right to appeal the adverse ruling on his motion to dismiss.
At the outset, we must address the Commonwealth's contention that Kelly's claims on appeal were not preserved for appellate review. Kelly raises two arguments on appeal challenging the constitutionality of KRS 17.546 on ex post facto and first amendment grounds; however, his motion to dismiss in the trial court specifically addressed the constitutionality of KRS 17.510(10)(c). In his reply brief, Kelly urges this Court to broadly construe his motion to dismiss as encompassing the two arguments he now advances on appeal. Kelly does not concede that his arguments were not preserved, and he does not request palpable error review. See Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008).
Pursuant to RCr 8.09, "a defendant may enter a conditional plea of guilty, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified trial or pretrial motion." In order to preserve a claim for appellate review, the movant must raise the issue below and secure a ruling from the trial court. Buster v. Commonwealth, 364 S.W.3d 157, 161 (Ky. 2012). Although it is acceptable for litigants to refine and clarify arguments on appeal, the issues raised in the appellate court must have been presented to the court below. Id. at 162. Where the issues raised on appeal were not expressly raised in the trial court, this Court will not consider them on appeal. Dickerson v. Commonwealth, 278 S.W.3d 145, 149 (Ky. 2009).
In his motion below, Kelly expressly argued that the website registration provisions of KRS 17.510(10)(c) violated his freedom of speech and constituted an ex post facto punishment. In denying the motion, the trial court expressly adopted the Commonwealth's responsive pleading. The Commonwealth's response plainly addressed only the constitutionality of KRS 17.510, which required Kelly to register his Facebook account with the probation and parole office. On appeal, Kelly challenges an entirely different statute, KRS 17.546. Although Kelly's motion broadly referenced the 2009 statutory amendments that created KRS 17.546, we are not persuaded that the specific constitutional issues now argued on appeal were raised or ruled upon in the trial court. Regardless of the merits of Kelly's appellate arguments, "these grounds, being different from those asserted in the court below, are not properly preserved for appellate review." Daugherty v. Commonwealth, 572 S.W.2d 861, 863 (Ky. 1978). We conclude Kelly's arguments were not properly preserved; consequently, we will not address them on appeal.
Finally, we note that the Commonwealth addressed the constitutionality of KRS 17.510(10)(c) in its appellate brief. Although the issues relating to KRS 17.510 were properly preserved by the conditional guilty plea, Kelly failed to raise any arguments on appeal relating to his challenge of KRS 17.510(10)(c); instead, he focused his entire brief on the unpreserved issues relating to KRS 17.546. "An appellant's failure to discuss particular errors in his brief is the same as if no brief at all had been filed on those issues." Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979). On appeal, Kelly did not brief any arguments regarding KRS 17.510(10)(c); consequently, those issues are waived, and we affirm the decision of the trial court. Osborne v. Payne, 31 S.W.3d 911, 916 (Ky. 2000).
For the reasons stated herein, we affirm the judgment of the Fayette Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Samuel N. Potter
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky