Opinion
NO. 2013-CA-001517-MR
04-24-2015
JEFFREY WILLIAM MURPHY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate Department of Public Advocacy 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NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND, II, JUDGE
ACTION NO. 13-CR-00190
OPINION
AFFIRMING
BEFORE: COMBS, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Jeffrey William Murphy appeals his conviction for failure to register as a sex offender.
In 2009, Murphy was adjudicated a juvenile delinquent in Michigan for committing criminal sexual conduct in the third degree against a younger child in his home. Pursuant to Michigan law, Murphy was required to register as a sex offender in Michigan.
Under Michigan Penal Code 750.520d(1), a criminal sexual conduct in the third degree includes sexual penetration of another person who was at least thirteen-years old but less than sixteen-years old.
In 2011, Murphy moved to Kentucky and registered as a sex offender as required under Kentucky's Sex Offender Registration Act (SORA), KRS 17.500 et. seq. He updated his residence information four times. In 2013, Murphy became homeless. A routine check revealed Murphy was not living at the address he had listed and he was told to register. Two days later after he failed to comply, he was arrested and subsequently indicted for failure to register under SORA by failing to update his registration address as required by KRS 17.510(10), thus violating KRS 17.510(11). Murphy moved to dismiss the indictment arguing that in Kentucky, juvenile adjudications do not trigger a requirement to register under SORA. His motion was denied. Subsequently, Murphy entered into a conditional plea agreement pursuant to RCr 8.09, pled guilty and was sentenced to one year incarceration.
On appeal, Murphy argues that although KRS 17.510(7) requires any person required to register under the laws of another state register in Kentucky, to the extent the statute requires individuals adjudicated delinquent in another state to register, it conflicts with KRS 635.040 which states that no civil disability may be based on a juvenile adjudication. He points out KRS 17.510(6) and portions of (7) repeatedly refer to convictions and not adjudications. He argues requiring a juvenile adjudicated without a jury trial or other protections to register is unjust and makes his juvenile record public.
The proper interpretation of statutes is a pure legal issue that we review de novo. Ferguson v. Commonwealth, 362 S.W.3d 341, 344 (Ky.App. 2011). In construing statutes, we are required to give effect to the intent of the General Assembly as found in the language of the statute. White v. Check Holders, Inc., 996 S.W.2d 496, 497 (Ky. 1999); Karem v. Bd. of Trustees of Judicial Form Tet. Sys., 293 S.W.3d 401, 403-04 (Ky.App. 2009); KRS 446.080(4). If the language of a statute is clear and unambiguous, further interpretation is unwarranted and the statute must be given its written effect. White, 996 S.W.2d at 497; Gilbert v. Commonwealth, Cabinet for Health and Family Services, 291 S.W.3d 713, 716 (Ky.App. 2008).
The relevant portions of SORA state as follows:
Any person who has been convicted in a court of any state . . . of a sexual crime or criminal offense against a victim who is a minor and who has been notified of the duty to register by that state . . . or who has been committed as a sexually violent predator under the laws of another state . . . shall comply with the registration requirement of this section[.]KRS 17.510(6).
If a person is required to register under . . . the laws of another state . . . or if the person has been convicted of an offense under the laws of another state . . . that would require registration if committed in this Commonwealth, that person upon changing residence from the other state . . . of the United States to the Commonwealth . . . shall
comply with the registration requirement of this section[.]KRS 17.510(7).
Although KRS 17.510(6) and portions of (7) require a criminal conviction to trigger the registration requirement, Murphy was charged and convicted of violating SORA because he was required to register under the laws of Michigan and, therefore, required to register in Kentucky. Proof that a person is required to register in another state is sufficient to establish that person must register under KRS 17.510(7). Commonwealth v. McBride, 281 S.W.3d 799, 805 (Ky. 2009).
KRS 635.040 does not change our analysis. KRS 635.040 states: "No adjudication by a juvenile session of District Court shall be deemed a conviction, nor shall such adjudication operate to impose any of the civil disabilities ordinarily resulting from a criminal conviction, nor shall any child be found guilty or be deemed a criminal by reason of such adjudication."
KRS 635.040 does not apply to Murphy because he was not adjudicated delinquent by a juvenile session of a Kentucky District Court. The term "District Court" contained in KRS 635.040 is not a generic term referring to any court in any jurisdiction that adjudicates juveniles delinquent. Instead, "District Court" is a specific type of Kentucky court established by the Kentucky Constitution. Ky. Const. § 113. Its original jurisdiction includes jurisdiction over juvenile cases. KRS 24A.130; KRS 610.010. Accordingly, KRS 635.040 only applies to juvenile cases adjudicated before a District Court in Kentucky. Therefore, it cannot bar KRS 17.510(7) from operating where the basis of an out-of-state registration requirement was a juvenile adjudication in another state.
Our determination that Murphy can properly be required to register in Kentucky is supported by a recent unpublished case in Kentucky. Smith v. Commonwealth, 2012-CA-001811-MR, 2013-CA-000364-MR, 2014 WL 4521235 (Ky.App. 2014) (unpublished), addresses this exact issue, albeit through constitutional challenges rather than on the basis of statutory interpretation.
We may properly consider Smith as persuasive authority pursuant to the CR 76.28 exception to not using unpublished cases as authority. R.S. v. Commonwealth, 423 S.W.3d 178, 188-89 (Ky. 2014).
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Smith was required to register as a sex offender in Illinois based on his adjudication there as a juvenile delinquent for aggravated sexual abuse. Smith, 2014 WL 4521235 at 1. After he moved to Kentucky and failed to register as a sex offender, Smith entered conditional guilty pleas for failure to comply with SORA's registration requirements. Smith argued requiring his registration pursuant to SORA based on his juvenile adjudication in another state violated numerous constitutional provisions.
Rejecting his equal protection argument, this Court held that even if Smith could prove he would not have been required to register had he committed his offense in Kentucky, differential treatment could be justified as rationally related to a legitimate state interest because registration requirements are nonpunitive and provide protection to the public. Id. at 3-4. See Hyatt v. Commonwealth, 72 S.W.3d 566, 574 (Ky. 2002). Smith's right to travel was not contravened by Kentucky's enactment of regulations to promote the public safety of its citizens. Smith, 2014 WL 4521235 at 4. Therefore, the Court affirmed Smith's convictions.
Based on our statutory interpretation of the relevant statutes and Smith, we determine Murphy was properly convicted.
The judgment of the Boone Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky