Opinion
NO. 2011-CA-001404-MR
03-22-2013
KEITH STEVENSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Samuel N. Potter Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 11-CR-00105
OPINION
AFFIRMING
BEFORE: DIXON, MAZE, AND NICKELL, JUDGES. NICKELL, JUDGE: Upon denial of his motion to dismiss, Keith Stevenson entered a conditional guilty plea in the Boyd Circuit Court to a charge of Failure to Comply with Sex Offender Registration, first offense. Stevenson appeals the final judgment and asks this Court to reverse the conviction and one-year prison term, and to remand with instructions to dismiss the case for the reasons set forth in his conditional plea. Two issues were reserved in the conditional plea: (1) whether Stevenson must register in Kentucky as a sex offender; and (2) whether there was sufficient evidence to convict Stevenson of remaining in Kentucky longer than five days without registering. Having reviewed the record, the briefs, and the law, we hold the trial court correctly denied the motion to dismiss and we affirm.
Kentucky Rules of Criminal Procedure (RCr) 8.09.
Kentucky Revised Statutes (KRS) 17.510(11), a Class D felony.
On May 10, 2011, an information and waiver of grand jury indictment was filed in the Boyd Circuit Court alleging Stevenson committed the offense of Failure to Register as a Sex Offender, first offense, on or about April 25, 2011. On July 21, 2011, Stevenson filed a motion to dismiss. The motion was denied and the trial court accepted a conditional guilty plea that set forth stipulated facts including: 1) Commonwealth asserts Stevenson must register as a sex offender due to a 1997 Florida conviction; 2) as a result of the 1997 conviction, Florida required Stevenson to register as a sex offender for ten years, however, Florida's registration requirement was subsequently amended to require lifetime registration for all registered sex offenders; and 3) KRS 17.510(6) requires registration by anyone who is a registered offender in Kentucky or another state to "register with the appropriate local probation and parole office in the county of residence within five [5] working days of relocation." The conditional plea also restated Stevenson's positions that the application of Florida's sex offender registration statute is unconstitutional and the court should have dismissed the case for insufficient evidence.
Stevenson claims this amendment was an ex post facto change that is unconstitutional and, therefore, cannot be applied to him.
We have omitted other stipulated facts that are unrelated to the Boyd County charge.
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Stevenson's argument focuses on an alleged one-day stay in Jefferson County to support the assertion that he did not reside in Kentucky for more than five days, but the conviction he challenges was entered in Boyd County. The record does not indicate that Stevenson was charged in Jefferson County, or that he was alleged to reside there. Instead, the Boyd County charge references an address in Ashland, Kentucky, and based on the citation, it appears Stevenson was believed to reside at the Ashland, Kentucky, address. His alleged residency in Boyd County prompted the failure to register charge. It is also important to note that during the plea colloquy, Stevenson admitted he failed to register as a sex offender while residing in Boyd County.
"RCr 8.09 permits a defendant the right, upon pleading guilty to an offense, to seek review of the adverse determination of any specified trial or pretrial motion." Dixon v. Commonwealth, 982 S.W.2d 222, 224 (Ky. App. 1998) (internal quotations omitted). In this case, the conditional plea reserved the right to appeal the trial court's denial of the motion to dismiss. However, there are limited instances when a trial judge may summarily dismiss criminal indictments prior to trial. These instances "include the unconstitutionality of the criminal statute, prosecutorial misconduct that prejudices the defendant, a defect in the grand jury proceeding, an insufficiency on the face of the indictment, or a lack of jurisdiction by the court itself." Commonwealth v. Bishop, 245 S.W.3d 733, 735 (Ky. 2008) (internal citations omitted). The Supreme Court of Kentucky "has consistently held that a trial judge has no authority to weigh the sufficiency of the evidence prior to trial or to summarily dismiss indictments in criminal cases." Id. With this in mind, we turn to the arguments submitted by Stevenson.
First, Stevenson argues application of the Florida registration requirement is unconstitutional. Florida courts have already considered the issue under their constitution and determined the life-long registration requirement is not a punishment and, therefore, is not an ex post facto law. Freeland v. Florida, 832 So.2d 923, 923 (Fla. 1st DCA 2002); Simmons v. State, 753 So. 2d 762 (Fla. 4th DCA 2000). The only way Stevenson may challenge the application of the Florida law in Kentucky is to question the validity of the Kentucky statute requiring its application. Stevenson failed to properly bring a constitutional challenge on appeal because he did not notify the Kentucky Attorney General, as is required by KRS 418.075(2). Jacobs v. Commonwealth, 947 S.W.2d 416, 419 (Ky. App. 1997). Therefore, relief is unwarranted.
Stevenson's second argument appears to turn on sufficiency of the evidence presented by the Commonwealth. He asserts that as a matter of law, he cannot be convicted because he spent only one day in Jefferson County. It matters not the length of time he spent in Jefferson County as his conviction was based on his failure to register in Boyd County, a fact he readily admitted during the plea colloquy. His argument is therefore misplaced and without merit. There being a factual basis for the guilty plea, we see no basis for reversal.
For the reasons set forth above, the trial court properly declined to dismiss the charges against Stevenson and its decision is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Samuel N. Potter
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky