Dickerson v. Com.

• Decision Date: 20 October 2005
• Docket Number: No. 2003-SC-0834-TG.,No. 2003-SC-0543-MR.,No. 2003-SC-0833-TG.,2003-SC-0543-MR.,2003-SC-0833-TG.,2003-SC-0834-TG.
• Citation: 174 S.W.3d 451
• Parties: Robert A. DICKERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

174 S.W.3d 451

Robert A. DICKERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2003-SC-0543-MR.

No. 2003-SC-0833-TG.

No. 2003-SC-0834-TG.

Supreme Court of Kentucky.

October 20, 2005.

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Gail Robinson, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant (2003-SC-0543-MR and 2003-SC-0833-TG).

Gail Robinson, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Michael Robert Rivers, Paducah, Counsel for Appellant (2003-SC-0834-TG).

Gregory D. Stumbo, Attorney General, Tami Allen Stetler, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee (2003-SC-0543-MR, 2003-SC-0833-TG and 2003-SC-0834-TG).

Opinion of the Court by Justice COOPER.

This appeal involves three separate indictments rendered by Fulton County grand juries against Appellant, Robert Dickerson, and three jury trials in the Fulton Circuit Court on those charges. Appellant was represented by a different public defender at each trial. He was ultimately convicted of one count of sodomy in the first degree ("sodomy 1st"), a Class B felony (which should have been a Class A felony since the jury found that the victim was less than twelve years of age), KRS 510.070(2), for which he was sentenced to confinement in the penitentiary for twenty years, subsequently enhanced to thirty years because the jury found him to be a persistent felony offender in the second degree (PFO 2nd), KRS 532.080(2); one count of possession of a handgun by a convicted felon, a Class C felony, KRS 527.040(2), for which he was sentenced to ten years in prison; and one count of violating the Sex Offender Registration Act by failing to notify the Division of Probation and Parole of his change of address, KRS 17.510(10)(b), presently classified as a Class D felony, KRS 17.510(11), for which he was sentenced to five years in prison.

(In fact, the grand jury indicted Appellant twice for violating KRS 17.510(10)(b). Indictment number 01-CR-00088, the indictment that is the subject of this appeal, alleged a violation date of June 27, 2001; indictment number 02-CR-00122, the indictment under which Appellant was tried and convicted, originally alleged a violation date of May 23, 2002. Appellant was incarcerated in the Fulton County Jail from the date of his arrest, January 24, 2001, until at least July 10, 2003, when he was finally sentenced on the sodomy 1st conviction, a period encompassing both June 27, 2001, and May 23, 2002.)

The trial court ordered all of the sentences to run concurrently for a total of thirty years. Appellant appealed the conviction and sentence for sodomy 1st, enhanced by PFO 2nd, 01-CR-00015, to this Court as a matter of right. Ky. Const. § 110(2)(b). He appealed the handgun and sex offender registry convictions and sentences, 01-CR-00015 and 01-CR-00088, to the Court of Appeals as a matter of right. Ky. Const. § 115. We subsequently granted transfer of those appeals, CR 74.02, and consolidated them with the appeal of the sodomy 1st and PFO 2nd convictions.

I. FACTS.

Appellant was twice previously convicted of sexual offenses in the Jefferson Circuit Court. In May 1988, Appellant was indicted on one count of rape in the first degree ("rape 1st") by forcible compulsion; two counts of sodomy 1st, one premised upon forcible compulsion and the other premised upon the victim being less than twelve years of age; and one count of sexual abuse in the first degree ("sexual abuse 1st"), premised upon the victim being less than twelve years of age. All of the offenses were allegedly perpetrated against the same victim, "L.A." Pursuant to a plea agreement consummated on May 31, 1989, Appellant was convicted of one count of sodomy in the second degree ("sodomy 2nd"), a Class C felony premised upon the victim being between twelve and fourteen years of age or mentally incapacitated, KRS 510.080; and one count of sexual abuse 1st. He was sentenced to five years for sodomy 2nd and to one year for sexual abuse 1st, with the sentences to be served concurrently, but probated for five years.

In 1995, Appellant was indicted by a Jefferson County grand jury on three counts of sodomy 1st, two counts of rape 1st, and PFO 2nd, all perpetrated against the same victim, "C.B." One of the 1995 sodomy charges was premised upon the victim being less than twelve years of age. The remaining charges were all premised upon forcible compulsion. Pursuant to a plea agreement consummated on November 28, 1995, Appellant pled guilty to three amended charges of sexual abuse 1st and was sentenced to serve four years on each count, with the sentences to run concurrently. Appellant "served out" this sentence and was released on August 1, 1997.

On July 17, 1997, pursuant to KRS 17.510(2), a provision of the Sex Offender Registration Act, Appellant executed a pre-release sex offender register entry form on which he indicated that his post-release address would be 2409 24th Ave. North, Nashville, Tennessee. The form contained the following notice:

I have been notified that the above information is being sent to the Kentucky State Police in order to place me on the sex offender register. I also understand that if I should have a change of address, I am required to notify the local probation and parole officer within fourteen days. I further understand that my failure to comply with this law is a Class A misdemeanor.

Upon his release, Appellant did not move to Nashville, Tennessee, but to Fulton, Kentucky. Renee Grogan testified at the trial of the sexual offense registration charge that she met Appellant at the bus station in Paducah in early August 1997 and drove him to Fulton. She also testified that she and Jawan Ghoulson accompanied Appellant to the Hickman office of Lawrence Mitchell, the probation and parole officer for Fulton County. Ghoulson verified that he accompanied Grogan and Appellant to Mitchell's office. Appellant asserted that since he had "served out" his sentence, he was under no obligation to report to a parole officer except to register his new address. He testified that he told Mitchell that he was a sex offender registrant and gave Mitchell his name, social security number, date of birth, and new address. We are not required here to determine whether that satisfied his duty to "register" his new address; but if it did, it was then Mitchell's responsibility to forward the information to the Information Services Center at Kentucky State Police Headquarters in Frankfort, not, e.g., to the Department of Corrections (Mitchell's employer). The information Appellant alleges he gave to Mitchell is not on file at the Information Services Center. Mitchell did not testify and the record does not reflect whether he is still an employee of the Department of Corrections.

Crystal Crumble and her three children, including her ten-year-old daughter, A.H., began residing at Appellant's residence at 908 Maiden Street, Fulton, Kentucky, sometime during the summer of 2000. Appellant and Crumble married in December 2000. Appellant worked the night shift at a local factory, and Crumble worked a day shift. On Sunday night, January 21, 2001, A.H. told Crumble that while Crumble was at work on the morning of January 20, 2001, Appellant showed A.H. a brown-and-black-colored handgun and threatened to kill her and everyone in the house if she did not do as she was told. Appellant then took A.H. into her bedroom, told her to remove her underwear, licked her "privates," then turned her over and leaned his "middle spot" against her "behind," at which time she felt something runny and soft. Appellant then told A.H. that "it was over" and gave her a yellow wash rag with which to clean herself. A.H. claimed she hung the wash rag "on a railing" and put her underwear "in the dirty clothes." Crumble immediately notified the Fulton. Police Department, which instituted a criminal investigation. The underwear A.H. was wearing at the time of the offense and the yellow wash rag were never found. Forensic testing of A.H.'s bed sheets and the clothing she was wearing at the time of the alleged offense tested negative for semen or any other bodily fluids.

Appellant did not come home from work after his Sunday night shift on January 21, 2001. Instead, he rented a motel room in Mayfield, Kentucky. He made a telephone call to his mother-in-law, who used her telephone's "caller ID" function to identify the telephone number from which the call was made. The police traced the number to the Mayfield motel and arrested Appellant on January 24, 2001. Prior to his arrest, Appellant had overdosed himself with medication in a claimed suicide attempt. Appellant did not specifically confess to the sodomy but told Fulton Police Captain (now city manager) John Ward that "I did what they say I did." The police took Appellant to a hospital for treatment of the overdose, and then lodged him in the Fulton County Jail, where he remained until at least July 10, 2003.

On March 8, 2001, a Fulton County grand jury rendered indictment number 01-CR-00015, charging Appellant with sodomy 1st, possession of a "handgun" (but not a "firearm") by a convicted felon, and PFO 1st. Sometime in 2001, Kentucky State Police Lieutenant Brad Bates, Commander of the Records Branch, which includes the Information Services Center, received a "tip" from the "coordinator" of the Department of Corrections that Appellant was residing in Fulton. (It is unknown whether, as Appellant suggests, the tip was based on the information Appellant claims to have provided to Leonard Mitchell in 1997, whether it resulted from Appellant's incarceration in January 2001, or neither.) Bates then obtained information from the Fulton Circuit Clerk that a driver's license had been issued to Appellant on August 10, 2000, reflecting Appellant's 908 Maiden Street address. On August 14, 2001, Bates mailed a "Warning of Non-Compliance" to Ap...