Summary
In Crabtree v. Commonwealth, No. 2016-CA-000082-MR, 2017 WL 2211375, *2 (Ky.App. May 19, 2017) (unpublished), our Court examined whether the above statements in Embry were dicta or had precedential value.
Summary of this case from Martin v. Ky. Dep't of Corr.Opinion
NO. 2016-CA-000082-MR
05-19-2017
SAMUEL A. CRABTREE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Fred E. Peters Lexington, Kentucky Rhey Denniston Mills Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM G. CLOUSE, JR., JUDGE
ACTION NO. 09-CR-00258 OPINION
AFFIRMING
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND TAYLOR, JUDGES. LAMBERT D., JUDGE: Samuel A. Crabtree (Crabtree) brings this appeal from an order of the Madison Circuit Court denying a motion to vacate his sentence pursuant to Kentucky Rules of Civil Procedure (CR) 60.02, in which he argued that he was improperly sentenced to lifetime registration as a sex offender. Because we hold that Crabtree fell within the provisions of Kentucky Revised Statute (KRS) 17.520(2)(a)(4), and because we hold that Crabtree is not entitled to leniency in regards to the sex offender registration requirement merely because the majority of his convictions were reversed on appeal, we affirm.
Facts
Crabtree was convicted of 65 counts of possession of matter portraying a sexual performance by a minor, and one count of attempted possession of matter portraying a sexual performance by a minor. Our Supreme Court reversed 62 of those counts on appeal, relating to Crabtree's possession of images, but affirmed his convictions for possession of videos. Crabtree v. Commonwealth, 455 S.W.3d 390, 402; 409 (Ky. 2014). As a result, Crabtree was required to register on the Sex Offender Registry for his lifetime.
Crabtree filed a motion pursuant to CR 60.02, alleging that he should not be required to register as a sex offender for the duration of his life. The Madison Circuit Court denied Crabtree's motion, holding that it did not have jurisdiction to amend the duration of Crabtree's sex offender registration. This appeal follows.
Analysis
Crabtree makes two arguments on appeal. First, he argues that he should not have been required to register as a sex offender for the duration of his life. Secondly, he argues that the amount of time he should be required to register as a sex offender should be reduced because the majority of his convictions were reversed on appeal by our Supreme Court.
"In order to be eligible for CR 60.02 relief, the movant must demonstrate why he is entitled to this special, extraordinary relief." Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011) (quoting Barnett v. Commonwealth, 979 S.W.2d 98, 101 (Ky. 1998)). CR 60.02 motions are designed to make the courts aware of errors in judgment that "were not known or could not have been known by the party through the exercise of due diligence." Baze v. Commonwealth, 276 S.W.3d 761, 766 (Ky. 2008). Furthermore, CR 60.02 should not be used "as another vehicle to revisit issues that should have been included or could have been included in prior requests . . . ." Id.
The Commonwealth argues that this issue should have been raised on direct appeal, since Crabtree should have been aware of the lifetime registration requirement at the time of his sentencing. We agree. It is well established that CR 60.02 is not "merely . . . an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal or RCr 11.42 proceedings. The obvious purpose of this principle is to prevent the relitigation of issues which either were or could have been litigated in a similar proceeding." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (citations and internal quotation marks omitted).
Crabtree's first argument is that he was improperly required by the trial court to register as a sex offender for his lifetime. KRS 17.520(2)(a)(4) provides that
"[l]ifetime registration is required for . . . [a]ny person who has been convicted of two (2) or more felony criminal offenses against a victim who is a minor[.]" KRS 17.500(3)(a) provides that "[e]xcept as provided in paragraph (b) of this subsection, [a] 'criminal offense against a victim who is a minor' means any of the following offenses if the victim is under the age of eighteen (18) at the time of the commission of the offense . . . [a]ny offense involving a minor or depictions of a minor, as set forth in KRS Chapter 531[.]""The statutes are unambiguous that someone who has committed a criminal offense against a victim who is a minor, including those offenses in KRS Chapter 531, is required to register." Hamilton-Smith v. Commonwealth, 285 S.W.3d 307, 309 (Ky. App. 2009).
KRS 17.500(3)(b) provides that "[c]onduct which is criminal only because of the age of the victim shall not be considered a criminal offense against a victim who is a minor if the perpetrator was under the age of eighteen (18) at the time of the commission of the offense[.]" This Court previously considered the applicability of that subsection in Dever v. Commonwealth, 300 S.W.3d 198, 203 (Ky. App. 2009). Because our review of the record reveals that Crabtree was over the age of 18 at the time of these offenses, this exception is inapplicable here.
Because Crabtree was convicted of three counts of possession of matter portraying a sexual performance by a minor (and one count of attempted possession of matter portraying a sexual performance by a minor) in the same judgment, and was not convicted of any sex crimes prior to that time, Crabtree argues that KRS 17.520(2)(a)(4) is inapplicable to him.
We agree with the Commonwealth that this Court previously adopted a contrary interpretation in Embry v. Commonwealth, 476 S.W.3d 264, 268 (Ky. App. 2015).
Under KRS 17.520(2)(a)(4), a person "convicted of two (2) or more felony criminal offenses against a victim who is a minor" must register as a sex offender for the duration of his life. Embry pled guilty to three felony sex crimes perpetrated upon a minor female. Without doubt, Embry was subject to lifetime registration as a sex offender as a result of the guilty plea.Id. at 268.
It is also true that this statement was not the ultimate holding of this case. "A statement in an opinion not necessary to the decision of the case is [dicta]. It is not authoritative though it may be persuasive or entitled to respect according to the reasoning and application or whether it was intended to lay down a controlling principle." Cawood v. Hensley, 247 S.W.2d 27, 29 (Ky. 1952). See also Commonwealth v. Mattingly, 98 S.W.3d 865, 869 (Ky. App. 2002) ("[T]he reasoning . . . was not necessary to the outcome of that opinion, and is therefore not binding on this Court."). We believe that this reasoning is necessary to the outcome of that opinion, and is therefore not dicta. The Embry Court ultimately held that the failure to inform a criminal defendant of the lifetime registration to requirement for sex offenders could not constitute a basis for ineffective assistance of counsel. 476 S.W.3d at 271 ("Lifetime registration being nonpunitive, failure to advise a criminal defendant he is subject to it is not an appropriate basis for relief under Padilla or RCr 11.42."). The Court could not have reached that holding without first making a determination that the sex offender registration requirement was applicable in that case. Therefore, this statement in Embry has precedential value.
If it were unnecessary for the court to first determine that the statute applied, the holding of Embry would be rendered dicta; whether the failure to advise a client of the sex offender registration requirement could constitute ineffective assistance of counsel would merely be a hypothetical question. --------
We are also persuaded by the Commonwealth's argument that, had the legislature intended KRS 17.520(2)(a)(4) to be read as Crabtree suggests, it would have included the word "prior." The legislature did so in KRS 17.520(2)(a)(3)(a)-(b), which requires lifetime registration for "[a]ny person convicted of a sex crime [w]ho has one (1) or more prior convictions of a felony criminal offense against a victim who is a minor[] or [w]ho has one (1) or more prior sex crime convictions[.]" Because appellate courts "are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used[,]" City of Covington v. Kenton Cty., 149 S.W.3d 358, 362 (Ky. 2004) (quoting Beckham v. Board of Educ. Of Jefferson Cty., 873 S.W.2d 575, 577 (Ky. 1994)), we agree with the Commonwealth's interpretation of KRS 17.520(2)(a)(4).
Though Crabtree urges this Court to follow the unpublished Salyer v. Commonwealth, No. 2009-CA-000439-MR, 2010 WL 3927766, at *6 (Ky. App. 2010), that case does not support his argument. In Salyer, the appellant only stood convicted of one felony, and therefore clearly did not qualify for lifetime registration under KRS 17.520(2)(a)(4). Crabtree's argument that the appellant in Hamilton-Smith, supra, was only required to register as a sex offender for twenty years is also without merit, as the appellant in that case only committed one sex crime against a minor. 285 S.W.3d at 309.
Finally, Crabtree claims that because "94%" of his case was reversed on appeal, the trial court should have issued a similar reduction in the length of time he was required to register as a sex offender. "Because the General Assembly directed that registration is mandatory in cases in which the victim is a minor, neither the Commonwealth nor the trial court had authority to relieve [Crabtree] of the requirement." Carpenter v. Commonwealth, 231 S.W.3d 134, 137 (Ky. App. 2007). This argument, therefore, also must fail.
Conclusion
In sum, we hold that KRS 17.520(2)(a)(4) applies to criminal defendants who are convicted of two or more felony sex crimes against a minor, even though that defendant was convicted of both crimes in the same judgment. We also hold that Crabtree was not entitled to a corresponding reduction in the length of time he was required to register as a sex offender merely because the majority of his convictions were reversed on appeal.
The Madison Circuit Court's order denying the RCr 11.42 motion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Fred E. Peters
Lexington, Kentucky Rhey Denniston Mills
Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky