Opinion
NO. 2014-CA-001442-MR
05-27-2016
JONATHAN LEACH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Joshua M. Reho Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 12-CR-002336 OPINION
AFFIRMING
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BEFORE: ACREE, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES. TAYLOR, JUDGE: Jonathan Leach brings this appeal from a July 31, 2014, judgment and sentence of imprisonment entered in the Jefferson Circuit Court upon a jury verdict finding Leach guilty of failure to comply with the sex offender registration statute and sentencing him to seven and one-half years' imprisonment. We affirm.
In December of 2000, Leach pleaded guilty in the Fayette Circuit Court to one count of sexual abuse in the first degree. In conjunction with his sentence, he was ordered to register as a sex offender in accordance with Kentucky Revised Statutes (KRS) 17.500, et seq.
In July of 2012, Leach was indicted upon one count of rape in the first degree, failure to comply with sex offender registration, subsequent offender, and with being a persistent felony offender (PFO) in the first degree. The rape charge was severed for purposes of trial, and the Commonwealth ultimately dismissed the PFO charge. Following a jury trial upon the remaining count in June of 2014, Leach was found guilty of failure to comply with sex offender registration, subsequent offender, and was sentenced to seven and one-half years' imprisonment. This appeal follows.
Leach contends that KRS 17.500(7) and 17.510 (10)(a) are unconstitutional as violative of the due process clause of the Fourteenth Amendment to the United States Constitution and of Section 2 of the Kentucky Constitution. Leach specifically contends that the sex offender registration statutes (KRS 17.500(7) and KRS 17.510(10)(a)) are unconstitutionally vague. In response, the Commonwealth asserts that Leach failed to notify the Attorney General of these constitutional challenges as mandated by KRS 418.075 and Kentucky Rules of Civil Procedure (CR) 24.03. Consequently, the Commonwealth maintains that Leach is barred from raising the constitutional challenges to these statutes on appeal. For the foregoing reason, we agree.
Kentucky Revised Statutes (KRS) 17.500(7):
"Residence" means any place where a person sleeps. . . .
(10) (a) If the residence address of any registrant changes, but the registrant remains in the same county, the person shall register, on or before the date of the change of address, with the appropriate local probation and parole office in the county in which he or she resides.
KRS 418.075 provides, in relevant part:
(1) In any proceeding which involves the validity of a statute, the Attorney General of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heard[.] . . .And, CR 24.03 reads, in relevant part:
When the constitutionality of an act of the General Assembly affecting the public interest is drawn into question in any action, the movant shall serve a copy of the pleading, motion or other paper first raising the challenge upon the Attorney General.
Both KRS 418.075 and CR 24.03 mandate that the Attorney General is to be served with notice of any constitutional challenge to a statute in circuit court. Kentucky Supreme Court precedent is clear that KRS 418.075 and CR 24.03 must be strictly complied with by a criminal defendant. Brashars v . Com., 25 S.W.3d 58 (Ky. 2000); Benet v . Com., 253 S.W.3d 528 (Ky. 2008). Indeed, the Supreme Court held in Benet "that strict compliance with the notification provisions of KRS 418.075 is mandatory" and such notice must "be given . . . prior to the entry of judgment." Id. at 532. If a party fails to strictly comply with the notification provision of KRS 418.075 and CR 24.03, any constitutional challenge to the statute is deemed unpreserved and will not be reviewed upon the merits. Brashars , 25 S.W.3d 58; Benet , 253 S.W.3d 528.
As an intermediate appellate court, we are bound to follow Supreme Court precedent. Rules of the Supreme Court 1.030(8)(a); Special Fund v . Francis, 708 S.W.2d 641 (Ky. 1986).
In this case, it is undisputed that Leach did not notify the Attorney General of his challenges to the constitutionality of KRS 17.500 and KRS 17.510 prior to entry of judgment by the circuit court. As Leach neither complied with the notification provisions of KRS 418.075 nor CR 24.03, his constitutional challenges to these statutes are unpreserved for appellate review. Consequently, we are precluded from addressing the merits of Leach's argument that KRS 17.500 and KRS 17.510 are unconstitutional.
Leach next contends that KRS 29A.290(2)(b) is unconstitutional as violative of Sections 28 and 233 of the Kentucky Constitution. More specifically, Leach argues that KRS 29A.290(2)(b) unconstitutionally delegates to the Supreme Court the unlimited discretion to determine whether the Commonwealth has any peremptory challenges, and, if so, how many. Leach believes that the General Assembly possesses exclusive authority to determine the number of peremptory challenges available to the Commonwealth. Leach maintains that the recent Supreme Court opinion in Glenn v. Commonwealth, 436 S.W.3d 186 (Ky. 2013) is distinguishable from this case. Leach points out that Glenn upheld the constitutionality of Kentucky Rules of Criminal Procedure 9.40 in relation to peremptory challenges; however, Leach claims that he is challenging KRS 29A.290(2)(b) as an unconstitutional delegation of legislative authority to the judiciary. See Glenn, 436 S.W.3d 186.
KRS 29A.290(2) provides:
The parties shall have the right to challenge jurors as follows:
(a) There shall be an unlimited right to challenge jurors for cause; and
(b) The number of peremptory challenges shall be prescribed by the Supreme Court.
Kentucky Rules of Criminal Procedure 9.40:
(1) If the offense charged is a felony, the Commonwealth is entitled to eight (8) peremptory challenges and the defendant or defendants jointly to eight (8) peremptory challenges. If the offense charged is a misdemeanor, the Commonwealth is entitled to three (3) peremptory challenges and the defendant or defendants jointly to three (3) peremptory challenges.--------
(2) If one (1) or two (2) additional jurors are called, the number of peremptory challenges allowed each side and each defendant shall be increased by one (1).
(3) If more than one defendant is being tried, each defendant shall be entitled to at least one additional peremptory challenge to be exercised independently of any other defendant.
The Commonwealth again argues that Leach's argument is unpreserved as he failed to notify the Attorney General of his constitutional challenge to KRS 29A.290(2)(b) in accordance with KRS 418.075 and CR 24.03.
We agree with the Commonwealth. As hereinbefore discussed, it was incumbent upon Leach to provide the Attorney General with notice of his constitutional challenge to KRS 29A.090(2)(b) prior to entry of judgment by the circuit court. See Benet, 253 S.W.3d 528. Here, it is clear that Leach failed to do so, and as a result, we are precluded from addressing the merits of Leach's constitutional challenge to KRS 29A.290(2)(b). See Brashars, 25 S.W.3d 58.
For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Joshua M. Reho
Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky