Com. v. Baker

295 S.W.3d 437

COMMONWEALTH of Kentucky, Petitioner, v. Michael BAKER, Respondent.

No. 2007-SC-000347-CL.

Supreme Court of Kentucky.

October 1, 2009.

Jack Conway, Attorney General, Jason Bradley Moore, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office, Frankfort, KY, Christopher S. Nordloh, Covington, KY, Counsel for Petitioner.

Bradley Wayne Fox, Fox & Scott, PLLC, Covington, KY, Counsel for Respondent.

OPINION OF THE COURT

I. INTRODUCTION

The question of law to be answered is whether KRS 17.545, which restricts where registered sex offenders may live, may be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. We hold that it may not. Even though the General Assembly did not intend the statute to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them civil. Therefore, the retroactive application of KRS 17.545 is an ex post facto punishment, which violates Article I, Section 10 of the United States Constitution, and Section 19(1) of the Kentucky Constitution.

II. BACKGROUND

A. Kentucky's Sex Offender Residency Restrictions

On July 29, 1994, seven-year-old Megan Kanka disappeared from her neighborhood in Hamilton Township, New Jersey. Soon after, police discovered that Megan had been raped and murdered by a man previously convicted of sex offenses. New Jersey enacted what became known as "Megan's Law," requiring sex offenders to register with the state, and establishing notification procedures for those living nearby. The same year, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Act, which conditioned certain law enforcement funding on states enacting their own version of Megan's Law.

Like every other state, Kentucky has enacted a version of Megan's Law. The General Assembly first enacted sex offender registration requirements in 1994, amending them in 1996 and again in 2000. The 2000 amendments to our Megan's Law also included residency restrictions on sex offenders as a condition of their probation or parole. That restriction, codified at KRS 17.495, read as follows:

No registrant, as defined in KRS 17.500, who is placed on probation, parole, or other form of supervised release, shall reside within one thousand (1,000) feet of a high school, middle school, elementary school, preschool, or licensed day care facility. The measurement shall be taken in a straight line from the nearest wall of the school to the nearest wall of the registrant's place of residence.

This Court upheld the registration provisions of Kentucky's Megan's Law in Hyatt v. Commonwealth, 72 S.W.Sd 566 (Ky.2002). The next year, the United States Supreme Court upheld Alaska's sex offender registration statute against an ex post facto challenge in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).¹

In 2006, the General Assembly enacted House Bill 3, which amended Kentucky's residency restrictions to their current form. 2006 Ky. Acts 182. The current residency restriction statute, effective July 12, 2006, codified at KRS 17.545, reads as follows:

(1) No registrant, as defined in KRS 17.500, shall reside within one thousand (1,000) feet of a high school, middle school, elementary school, preschool, publicly owned playground, or licensed day care facility. The measurement shall be taken in a straight line from the nearest property line of the school to the nearest property line of the registrant's place of residence.

(2) For purposes of this section:

(a) The registrant shall have the duty to ascertain whether any property listed in subsection (1) of this section is within one thousand (1,000) feet of the registrant's residence; and

(b) If a new facility opens, the registrant shall be presumed to know and, within ninety (90) days, shall comply with this section.

(3) Any person who violates subsection (1) of this section shall be guilty of:

(a) A Class A misdemeanor for a first offense; and

(b) A Class D felony for the second and each subsequent offense.

(4) Any registrant residing within one thousand (1,000) feet of a high school, middle school, elementary school, preschool, publicly owned playground, or licensed day care facility on July 12, 2006, shall move and comply with this section within ninety (90) days of July 12, 2006, and thereafter, shall be subject to the penalties set forth under subsection (3) of this section.

(5) This section shall not apply to a youthful offender probated or paroled during his or her minority or while enrolled in an elementary or secondary education program.

While the original residency restriction statute applied only to those on probation, parole, or other form of supervised release, the current statute applies to all registrants regardless of probation or parole status. In addition, KRS 17.545 adds publicly owned playgrounds to the list of prohibited areas, and measures the distance from the property line as opposed to the wall of a building. The statute also places the burden on the registrant to determine whether he is in compliance. Violation of the residency restriction is a Class A misdemeanor for the first offense, and a Class D felony for subsequent offenses.

B. Procedural History

On March 31, 1995, Respondent Michael Baker entered a guilty plea to a charge of third-degree rape in Kenton Circuit Court. In addition to Respondent's probated sentence of five years imprisonment, pursuant to the version of KRS 17.520 in effect at the time, Respondent was required to register as a sex offender until March 27, 2010.

Respondent subsequently lived in Reading, Ohio with his family. However, the City of Reading's sex offender residency restrictions forced Respondent to move back to Kentucky. On February 2, 2007, Respondent resided in Elsmere, Kentucky and was arrested and charged with violating KRS 17.545 for living within 1,000 feet of East Covered Bridge Park, allegedly a public playground.

According to Respondent, the Division of Probation and Parole provided him with a link to a website to determine whether he was in compliance with KRS 17.545. The website did not show East Covered Bridge Park and the surrounding area to be a prohibited zone.

In Kenton District Court, Respondent challenged KRS 17.545 on a number of constitutional grounds and moved to dismiss the charges against him. On April 20, 2007. the Kenton District Court granted Respondent's motion and dismissed the charges.

The district court concluded that KRS 17.545, as applied to Respondent, violated the ex post facto clauses of the United States and Kentucky Constitutions. In its thorough opinion, the district court found that the General Assembly had intended KRS 17.545 to be punitive. The district court also found that, even if KRS 17.545 were not clearly punitive, its effect was punitive. Upon finding the statute to be unconstitutional as applied to Respondent, the district court declined to address the remaining constitutional challenges.

The Commonwealth then moved this Court for certification of law to determine whether KRS 17.545 is an ex post facto punishment. See Ky. Const. § 115, CR 76.37(10). We granted certification to resolve this important constitutional issue.²

III. ANALYSIS

The United States Constitution and the Kentucky Constitution, through their respective ex post facto clauses,³ prohibit the enactment of any law that imposes or increases the punishment for criminal acts committed prior to the law's enactment. The Ex Post Facto Clause of the United States Constitution "forbids ... the States to enact any law `which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1866)).

As a threshold question, for a law to be considered ex post facto, "it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Hyatt, 72 S.W.3d at 571 (quoting Weaver, 450 U.S. at 29, 101 S.Ct. 960). There is no question that KRS 17.545 applies to conduct by Respondent that occurred well before the law's enactment. In addition, Respondent is disadvantaged by the law, as it restricts where he may live. However, to violate the ex post facto clause, the statute must also be punitive. Martin v. Chandler, 122 S.W.3d 540, 547 (Ky.2003) (citing California Dept. of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995)).

In determining whether, with regard to those like Respondent, KRS 17.545 constitutes retroactive punishment forbidden by the ex post facto clauses, we are guided by the United States Supreme Court's two-part test from Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). First, we must determine whether the legislature intended to establish a civil, nonpunitive, regulatory scheme, or whether the legislature intended to impose punishment. Id. at 92, 123 S.Ct. 1140 (citing Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). If the legislature intended to impose punishment, our inquiry ends. Smith, 538 U.S. at 92, 123 S.Ct. 1140. If, however, the legislature intended to enact a civil, nonpunitive, regulatory scheme, then we must determine "whether the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it `civil.'" Id. (quoting Hendricks, 521 U.S. at 361, 117 S.Ct. 2072) (internal quotations and citations omitted).

A. Whether the General Assembly Intended KRS 17.545 to be Punitive

We must first determine whether the General Assembly intended to establish a civil, nonpunitive, regulatory scheme, or whether the legislature intended to impose punishment. In determining the legislature...