Eagan v. Commonwealth

Full title: CHARLES EAGAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Apr 5, 2013

NO. 2012-CA-000542-MR (Ky. Ct. App. Apr. 5, 2013)

Opinion

NO. 2012-CA-000542-MR

04-05-2013

CHARLES EAGAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEFS FOR APPELLANT: Roy A. Durham Assistant Public Advocate Dept. of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky

THOMPSON

NOT TO BE PUBLISHED

APPEAL FROM CAMPBELL CIRCUIT COURT

HONORABLE FRED A. STINE, V, JUDGE

INDICTMENT NO. 10-CR-00034

OPINION

AFFIRMING

BEFORE: ACREE, CHIEF JUDGE; DIXON AND THOMPSON, JUDGES. THOMPSON, JUDGE: Charles Eagan appeals from the March 12, 2012, amended judgment and sentence of the Campbell Circuit Court which found him guilty of one count of failure to register as a sex offender and sentenced him to time served, 507 days incarceration. We affirm.

Eagan was convicted of first-degree rape and first-degree sodomy in 1995 and sentenced to incarceration. Upon being released in 2005, Eagan registered as a sex offender, pursuant to the Sex Offender Registration Act ("SORA"), Kentucky Revised Statute (KRS) 17.510. Later, Eagan moved but failed to register his change of address as mandated by KRS 17.510(10). Eagan was subsequently indicted for failing to comply with SORA. Eagan filed several pretrial motions seeking to prohibit prosecution on the grounds of the doctrine of ex post facto, banishment, and separation of powers and ultimately entered into a conditional guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). The trial court accepted Eagan's plea in a judgment and sentence entered on September 20, 2011. Although the record indicates that the plea was conditional on the preservation of Eagan's pretrial arguments, the judgment itself did not indicate its conditional status.

During a status conference held on January 17, 2012, Eagan orally moved to withdraw the September 20, 2011, judgment and sentence pursuant to Kentucky Rules of Civil Procedure (CR) 60.02 and issue a new judgment indicating the preservation of his right to appeal the arguments of ex post facto law, banishment, and separation of powers. The trial court granted his motion and in an order entered on March 12, 2012, withdrew the September 20, 2011, judgment and sentence. Simultaneously, a new judgment and sentence was entered stating that Eagan had reserved his right to appeal his pretrial arguments. This appeal followed.

As a preliminary matter, we address the Commonwealth's argument that Eagan's appeal was not timely filed. In essence, the Commonwealth argues that it was unnecessary for the trial court to withdraw the September 20, 2011, judgment and sentence, because Eagan's preservation of his right to appeal was sufficiently documented by the trial court's video system and, therefore, Eagan's appeal should have been filed within thirty days of the original, September 20, 2011, judgment and sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 12.04. We do not agree.

The Commonwealth's argument is an attack on the trial court's order granting Eagan's CR 60.02 motion. However, the Commonwealth failed to file an appeal or cross-appeal challenging that order. See RCr 12.04; CR 74.01. Accordingly, the issue is not appropriately within our review. The trial court's withdrawal of the September 20, 2011, judgment and sentence rendered that judgment null and void and, the March 12, 2012, judgment became the final and appealable judgment. Eagan's notice of appeal was filed within thirty days from the entry of that judgment and his appeal was, therefore, timely. RCr 12.04(3).

In order to best understand the arguments in this appeal, a brief recitation of SORA's history is warranted. We recite the following historical narration provided by the Kentucky Supreme Court:

In 1994, Kentucky first enacted SORA, also known as "Megan's Law." It required those convicted of sex offenses who were not incarcerated to register with their local probation and parole office, and to continue to register for a period of ten years after their final discharge from confinement, probation, parole, or any other form of supervised release. Failure to comply was a Class A misdemeanor. SORA also criminalized knowingly providing "false, misleading, or incomplete
information" as a Class A misdemeanor. However, SORA's registration requirements applied only "to persons convicted after the effective date" of the Act.
In 1998, the General Assembly amended SORA to provide for risk assessments for sex offenders. Those designated high risk were required to register for life, while others were required to register for ten years after their final discharge. The provisions were made applicable to "persons individually sentenced or incarcerated after the effective date of this Act." Some provisions became effective July 15, 1998, while the remainder went into effect January 15, 1999.
Effective July 2000, the General Assembly again amended SORA, eliminating the need for a risk assessment, and basing the length of registration on the offense committed. The amendments also increased the penalty for failing to register—and for providing false, misleading, or incomplete information—from a Class A misdemeanor to a Class D felony. The 2000 bill stated that it "shall apply to all persons who, after the effective date of this Act, are required . . . to become registrants . . . ."
The General Assembly approved another set of SORA amendments in 2006. The 2006 amendments increased the registration period for non-lifetime registrants from ten years to twenty years. The bill also amended the statutes criminalizing failure to register or providing false, misleading, or incomplete information:
(11) Any person required to register under this section who knowingly violates any of the provisions of this section or prior law is guilty of a Class D felony for the first offense and a Class C felony for each subsequent offense.
(12) Any person required to register under this section or prior law who knowingly provides false, misleading, or incomplete information is guilty of a Class D felony for the first offense and a Class C felony for each subsequent offense.
The amended statute enhanced the penalty for a second or subsequent offense to a Class C felony, and criminalized the violation of "prior law." The same 2006 bill also placed residency restrictions on all registrants.

Buck v. Commonwealth, 308 S.W.3d 661, 663-664 (Ky. 2010) (citations omitted).

Eagan makes the same three arguments to this Court that he made to the trial court. The first of those arguments is that his conviction for failure to register as a sex offender violates the ex post facto doctrine and, therefore, should be reversed.

An ex post facto law is 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, 308 S.W.3d at 664. The doctrine of ex post facto is improperly argued by Eagan. He fails to allege any of the three instances in which an ex post facto law is present: criminalization of an act which was innocent when done; aggravation of the punishment since the time the crime was committed; or alteration of the evidence required to convict. Instead, Eagan's argument is that SORA was not applicable to him because he was not notified, at the time of judgment and sentencing, that he would be required to register. He maintains that he was only notified of the requirement just prior to his release in 2005.

We disagree that these circumstances render SORA inapplicable to Eagan. Under the current version of SORA, notification by the trial court is required only "if the court grants probation or conditional discharge or does not impose a penalty of incarceration." KRS 17.510(3). Otherwise, an incarcerated person shall be informed "by the official in charge of the place of confinement upon release." Id. (emphasis added). Moreover, the notification requirement found in the original 2004 version of SORA, in effect at the time of Eagan's 2005 conviction, read as follows:

Beginning January 1, 1995, any person who is discharged, paroled, or released on shock probation from a jail, prison, or other institution where he was confined because of the commission or attempt to commit a sex crime shall, prior to discharge, parole, or release, be informed of the duty to register under this section by the official in charge of the place of confinement.

1994 Kentucky Acts Ch. 392 §2(3) (emphasis added). Accordingly, Eagan's argument is without merit.

In addition, Eagan's assertion that he would not have accepted his plea offer if he had known of the SORA requirements is misplaced in this appeal. Such an argument would be appropriately brought in opposition to his original conviction of rape and sodomy and not in opposition to his conviction of failure to comply with SORA. RCr 11.42. That argument is, therefore, also without merit. We further note that Eagan goes to great lengths to bolster his argument by distinguishing his case from Buck. The defendant in Buck was convicted prior to the original enactment of SORA and then later re-incarcerated after SORA became effective. Buck, 308 S.W.3d 661. Buck is not only inapplicable, but irrelevant. Accordingly, it does not warrant further discussion.

Eagan's next argument is that SORA amounts to banishment and, therefore, unconstitutional. However, Eagan fails to offer any legal support for this argument. He cites to the United States Supreme Court case of Smith v. Doe, which held, in reference to Alaska's equivalent of SORA, that banishment requires more than the dissemination of information. Smith v. Doe, 538 U.S. 84, 98, 123 S.Ct. 1140 (2003). He further cites to the Kentucky Supreme Court case of Commonwealth v. Baker, which held that the residency restrictions were punitive in effect. Commonwealth v. Baker, 295 S.W.3d 437, 444 (Ky. 2009). As a remedy, the Court in Baker held that the restrictions, put into place by the 2006 amendments, could not be constitutionally applied to those who committed their crimes prior to the effective date of those amendments. Id. at 446. The Court was clear that it was only those residency requirements which constituted punishment similar to banishment, and not KRS 17.510 in general. Id. at 444. Eagan argues that because the people with which he attempted to reside would not allow him to register their address in the system, he was banished by virtue of being homeless. We disagree that any indirect complications an individual faces in procuring housing, by virtue of his or her status as a registered sex offender, amounts to active banishment. SORA only requires registration of the offender's address of residence as well as notification when that residence changes. KRS 17.510. There is no requirement that a registrant obtain permission from a property owner, be it friend, relative, or landlord prior to registration of that address. Accordingly, Eagan's argument is without merit.

Eagan's final argument is that the doctrine of separation of powers was violated when the trial court failed to inform him of his duty to register at the time of his rape and sodomy convictions. Because we have already concluded that Eagan's notification was in conformity with SORA, we will not consider this argument a second time. Consequently, the argument fails.

For the foregoing reasons, the March 12, 2012, amended judgment and sentence of the Campbell Circuit Court is affirmed.

ALL CONCUR. BRIEFS FOR APPELLANT: Roy A. Durham
Assistant Public Advocate
Dept. of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky