Carpenter v. Com., 2006-CA-001012-MR.

• Decision Date: 22 June 2007
• Docket Number: No. 2006-CA-001012-MR.,2006-CA-001012-MR.
• Citation: 231 S.W.3d 134
• Parties: Brian C. CARPENTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

231 S.W.3d 134

Brian C. CARPENTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2006-CA-001012-MR.

Court of Appeals of Kentucky.

June 22, 2007.

Case Ordered Published by Court of Appeals August 10, 2007.

Greta S. Price, David S. Hoskins, Corbin, KY, for appellant.

Gregory D. Stumbo, Attorney General of Kentucky, C. David Yates, Assistant Attorney General, Frankfort, KY, for appellee.

Before ABRAMSON and TAYLOR, Judges, KNOPF,¹ Senior Judge.

OPINION

KNOPF, Senior Judge (Assigned).

Brian C. Carpenter appeals the denial of his motion to set aside a guilty plea which he alleges was not knowingly and voluntarily entered because his counsel provided him with incorrect information as to the requirement that he register as a sex offender. We affirm.

Carpenter was indicted for first-degree rape by engaging in sexual intercourse with a child under the age of 14. Just prior to trial, the Commonwealth offered to amend the charge to second-degree sexual abuse in exchange for his pleading guilty to that offense. The Commonwealth's recommendation on sentencing was reduced to writing as follows:

On a plea of guilty to Amended Count I, the Commonwealth recommends 12 months, probated 12 months, on the condition that the defendant serve 14 days in jail and 60 days on G.P.S. Monitoring through Emcon G.P.S. Defendant shall have no contact with the victim or her family.

On August 9, 2005, Carpenter entered a plea and the trial court sentenced him in accordance with the Commonwealth's recommendation. In addition to 12 months of unsupervised probation, the trial court required that Carpenter submit to random alcohol and/or drug testing required by the Department of Probation and Parole; pay $125 in court costs within 60 days; and undergo sex offender evaluation and treatment with the assistance of the Department of Probation and Parole.

Shortly thereafter, Carpenter was notified of the requirement that he register as a sex offender. Carpenter then filed a motion to suspend his sentence alleging that a specific condition of his agreement with the Commonwealth was that he not have to register under KRS 17.500 et seq, the Sex Offender Registration Act. Because application of the registration act is mandatory in cases in which the victim is a minor, it necessarily applied to Carpenter's situation. "Registrant" is defined in the pertinent subsections of KRS 17.500(5) as:

(a) Any person eighteen (18) years of age or older at the time of the offense or any youthful offender, as defined in KRS 600.020, who has committed:

1. A sex crime; or

2. A criminal offense against a victim who is a minor; or

(b) Any person required to register under KRS 17.510....

KRS 17.510(2) sets out the requirements imposed upon a registrant:

(2) A registrant shall, on or before the date of his or her release by the court, the parole board, the cabinet, or any detention facility, register with the appropriate local probation and parole office in the county in which he or she intends to reside. The person in charge of the release shall facilitate the registration process.

The act also specifies the manner in which a defendant is to be notified as to the requirement that he register:

(3) Any person required to register pursuant to subsection (2) of this section shall be informed of the duty to register by the court at the time of sentencing if the court grants probation or conditional discharge or does not impose a penalty of incarceration, or if incarcerated, by the official in charge of the place of confinement upon release. The court and the official shall require the person to read and sign any form that may be required by the cabinet, stating that the duty of the person to register has been explained to the person. The court and the official in charge of the place of confinement shall require the releasee to complete the acknowledgment form and the court or the official shall retain the original completed form. The official shall then send the form to the Information Services Center, Kentucky State Police, Frankfort, Kentucky 40601.

KRS 17.510(3). It is undisputed that there was no mention of the registration requirement at the acceptance of Carpenter's plea nor at his sentencing.

Carpenter subsequently filed a motion to withdraw his guilty plea, arguing that the plea could not be considered voluntary in that he was misinformed as to an important aspect of the agreement. Despite the fact that the subject of the registration requirement was not addressed at the time his plea was accepted, nor was it a part of the Commonwealth's written offer, Carpenter nevertheless argued that both the Commonwealth and the trial court had reason to know it was an essential element of his agreement to plead guilty. Carpenter thus insisted that he should be permitted to withdraw his plea because it could not be considered voluntary and the benefit of his agreement with the Commonwealth was illusory.

After conducting a hearing, the trial court denied Carpenter's motion based upon a finding that the plea was voluntarily entered despite the misinformation concerning registration. In its order, the trial court specifically noted that "[i]f the Defendant was not fully informed of the collateral consequences of his plea, it was through no action of the Commonwealth or the Court that such omission occurred." The trial judge concluded, however, that because Carpenter had not been informed of the registration requirement at sentencing as mandated by KRS 17.510(3), he would need to be re-sentenced in compliance with that statute.

Carpenter predicates his argument that he should have been permitted to withdraw his plea on four related contentions: 1) that the Commonwealth breached the plea agreement; 2) that his plea is constitutionally defective because it was not knowing and voluntary; 3) that the plea agreement was illusory; and 4) that his plea was induced by defense counsel's misrepresentations. None of these claims, however, provides a sufficient basis for the withdrawal of Carpenter's plea because the misinformation of which he complains relates solely to a collateral matter.

In Commonwealth v. Fuartado 170 S.W.3d 384, 386 (Ky.2005), the Supreme Court of Kentucky addressed similar arguments relating to the failure to advise a defendant of the potential deportation consequences of entering a guilty plea:

In cases where defendants are agreeing to plead guilty in accordance with a plea bargain, this principle of protecting a criminal defendant's right to be fairly tried and justly convicted is extended to include investigating and advising the criminal defendant on all aspects of the plea and the direct consequences thereof-such as the sufficiency of the evidence supporting the plea, the availability of substantial defenses, the loss of several fundamental constitutional rights, and the punishment that may be imposed by the trial court. The existence of collateral consequences is irrelevant to the determination of a defendant's guilt or innocence and completely outside the authority or...