Gastinger v. Ky. State Police
| Decision Date | 23 April 2021 |
| Docket Number | NO. 2019-CA-0784-MR,2019-CA-0784-MR |
| Parties | JOHN GASTINGER APPELLANT v. KENTUCKY STATE POLICE, RICHARD SAUNDERS, EX REL; JUSTICE AND PUBLIC SAFETY CABINET, JOHN TILLEY, EX REL; AND KENTUCKY DEPARTMENT OF CORRECTIONS, JIM IRWIN, EX REL APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
In August 2018, while living in Colorado, Gastinger pled guilty to a single count of indecent exposure-masturbation, Colo. Rev. Stat. Ann. § 18-7-302. Under Colorado law, indecent exposure-masturbation is a class 1 misdemeanor punishable by up to eighteen months in jail and subject to registration. Colo. Rev. Stat. Ann. §§ 18-7-302(2)(b), 18-1.3-501(1)(a)1, 16-22-102(9)(m), 16-22-103(2)(a) and (b).
As a condition of his probation, Gastinger agreed to register as a sex offender, pursuant to Colo. Rev. Stat. Ann. §§16-22-106 and 16-22-108, and to comply with restrictions and requirements as a registered sex offender on supervised probation. It was not specified in either his sentencing order or conditions how long Gastinger would be required to register as a sex offender.
Soon after he was sentenced, in August 2018, Gastinger moved to Kentucky. Pursuant to the Interstate Compact for Adult Offender Supervision, Kentucky Revised Statutes (KRS) 439.561, his probation was transferred fromBoulder County, Colorado to Oldham County, Kentucky where the Division of Probation and Parole imposed conditions of supervision. Pursuant to KRS 439.561, Article VII, the conditions of supervised probation Gastinger signed in Kentucky, including restrictions and requirements related to his obligation to register as a sex offender as mandated by KRS 17.510, were consistent with those he signed in Colorado.
After registering as a sex offender in Kentucky, Gastinger filed an administrative appeal with the Division of Probation and Parole, challenging his registration requirement. In November 2018, the Division of Probation and Parole ruled that, pursuant to KRS 17.510(7)(a), Gastinger had a duty to register as a sex offender in Kentucky and would be subject to a twenty-year registration requirement.
On January 22, 2019, Gastinger filed the underlying action for preliminary and injunctive relief and money damages, alleging violations of Kentucky law and his constitutional rights. He made numerous claims predicated upon his Kentucky registration requirement and the conditions of his registration and supervised probation.
Thereafter, in March 2019, Gastinger, the Justice Cabinet, and KSP filed cross motions for summary judgment. Gastinger sought partial summary judgment on whether his registration requirement and placement on the Kentuckysex offender registry (SOR) was lawful and whether he was a felon. The Justice Cabinet and KSP sought summary judgment on the basis that Gastinger's registration requirement and conditions of registration and supervised probation were proper and not unlawful.
On April 25, 2019, the circuit court denied Gastinger's motion for partial summary judgment, granted the Justice Cabinet's motion for summary judgment, and granted KSP's motion for summary judgment.
On appeal, Gastinger argues: (1) the circuit court erred in its interpretation of KRS 17.510(7)(a) because he does not meet the inclusion criteria for registration and placement on the SOR; (2) his twenty-year registration requirement in Kentucky amounts to an increased period of registration and punishment, which violates his due process rights; (3) the media and internet restrictions imposed by the conditions of his supervised probation and computer use agreement violate his constitutional rights; (4) KRS 17.510(5)(c) unconstitutionally grants state actors immunity from liability for defamation; and (5) it is actionable that DOC has published on its Kentucky Online Offender Lookup (KOOL) website that he is a convicted felon.
Kentucky Rules of Civil Procedure (CR) 56.02 provides that "[a] party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supportingaffidavits for a summary judgment in his favor as to all or any part thereof." When a trial court considers a summary judgment motion, it is required to view "[t]he record . . . in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). "Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists." Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 905 (Ky. 2013). We apply "a de novo standard of review with no need to defer to the trial court's decision." Id. "The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996).
There are no factual disputes on appeal. All matters before us are properly reviewable as matters of legal interpretation.
Gastinger concedes he was required to register as a sex offender in Colorado and agrees that KRS 17.510(7)(a) is controlling. However, he argues the circuit court erred in its interpretation of the statute because he does not meet the inclusion criteria for registration and placement on the SOR. KRS 17.510(7)(a) dictates, in relevant part:
[I]f a person is required to register under . . . the laws of another state . . . that person upon changing residence from the other state . . . to the Commonwealth . . . shall comply with the registration requirement of this section . . . and shall register within five (5) working days with the appropriate local probation and parole office in the county of residence . . . . A person required to register under . . . the laws of another state . . . shall be presumed to know of the duty to register in the Commonwealth.
KRS 17.510(7)(a) contains two clauses describing persons required to register in Kentucky: (1) persons convicted of an offense and required to register under the laws of the state from which they are relocating; and (2) persons convicted of an offense in another state that would require registration in Kentucky. Murphy v. Commonwealth, 500 S.W.3d 827, 831 (Ky. 2016).
In Murphy, the defendant relocated from Michigan, where he was required to register, to Kentucky, where he challenged whether he was required to register under KRS 17.510(7). Murphy, 500 S.W.3d at 829-30. The Kentucky Supreme Court explained that because the defendant was required to register in Michigan, he fell "squarely within the first clause of KRS 17.510(7)" and was required to register in Kentucky. Murphy, 500 S.W.3d at 830, 833.
Pursuant to Murphy, because Gastinger was required to register under the laws of Colorado, he is required to register in Kentucky. Therefore, Gastinger meets the inclusion criteria for registration and placement on the SOR.
Gastinger argues his twenty-year registration requirement in Kentucky amounts to an increased period of registration and punishment, which violates his due process rights. We disagree.
Kentucky only has two registration periods, lifetime and twenty years. KRS 17.520(2)(a) and (3). All persons required to register in Kentucky, but not subject to lifetime registration, are required to register for twenty years. KRS 17.520(3). Under Colorado law, Gastinger would not be subject to mandatory lifetime registration based on his conviction for the offense of indecent exposure-masturbation. Colo. Rev. Stat. Ann. §§ 18-7-302(2)(b), 16-22-113(1)(c). Because Gastinger's registration requirement in Kentucky is based solely upon his obligation to register in Colorado, and he would not be subject to mandatory lifetime registration under Colorado law, we are satisfied he is not subject to lifetime registration in Kentucky. Therefore, as a person required to register in Kentucky but not subject to lifetime registration, Gastinger is required to register for twenty years in Kentucky. KRS 17.520(3).
Under Colorado law, Gastinger's period of registration appears to be indefinite, with potential eligibility to petition for relief from registration five years after completion of supervised probation. Colo. Rev. Stat. Ann. § 16-22-113(1)(c). This makes August 3, 2026, eight years after his three-year sentence of supervised probation was imposed, the earliest possible date Gastinger couldbecome eligible to petition for relief under Colorado law. Such eligibility would be conditioned upon Gastinger's compliance with the requirements of his registration and supervised probation and successful completion of same. Id. Additionally, discontinuance of required sex offender registration, even after successful completion of supervised probation and registration, is discretionary under Colorado law. People v. Carbajal, 312 P.3d 1183, 1189-90 (Colo.App. 2012). Therefore, there is no guarantee Gastinger would be eligible to petition for relief in 2026 or that relief would be granted at that time.
Given the indefinite duration of his registration period in Colorado, Gastinger is incorrect that his twenty-year...
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