Hyatt v. Com.

• Decision Date: 21 February 2002
• Docket Number: No. 2000-SC-0961-DG.,No. 2000-SC-0676-DG.,No. 2000-SC-1076-DG.,No. 2000-SC-0820-DG.,2000-SC-0676-DG.,2000-SC-0820-DG.,2000-SC-1076-DG.,2000-SC-0961-DG.
• Citation: 72 S.W.3d 566
• Parties: William Keith HYATT, Jr. Appellant v. COMMONWEALTH of Kentucky, Appellee, and Dennis Gilbert Hall, Appellant, v. Commonwealth of Kentucky, Appellee, and Commonwealth of Kentucky, Appellant/Cross Appellee, v. Nathaniel Sims, Appellee/Cross Appellant.
• Court: United States State Supreme Court — District of Kentucky

72 S.W.3d 566

William Keith HYATT, Jr. Appellant v. COMMONWEALTH of Kentucky, Appellee, and Dennis Gilbert Hall, Appellant, v. Commonwealth of Kentucky, Appellee, and Commonwealth of Kentucky, Appellant/Cross Appellee, v. Nathaniel Sims, Appellee/Cross Appellant.

No. 2000-SC-0676-DG.

No. 2000-SC-0820-DG.

No. 2000-SC-1076-DG.

No. 2000-SC-0961-DG.

Supreme Court of Kentucky.

February 21, 2002.

Rehearing Denied May 16, 2002.

Carol R. Camp, Asst. Public Advocate, Frankfort, for William Keith Hyatt, Jr.

Elizabeth Shaw, Richmond, for Dennis Gilbert Hall.

Albert B. Chandler III, Atty. Gen., Anitria M. Franklin, Asst. Atty. Gen., Frankfort, for Appellee.

Albert B. Chandler III, Atty. Gen., Tami Allen Stetler, Asst. Atty. Gen., Frankfort, for Appellant/Cross-Appellee.

Frank W. Heft, Jr., J. David Niehaus, Deputy Appellate Defender, Louisville, for Appellee/Cross-Appellant Nathaniel Sims.

WINTERSHEIMER, Justice.

These cases arise out of three different Court of Appeals' opinions rendered by three different panels concerning the constitutionality of the Sexual Offender Registration Act, KRS 17.500 et seq. commonly known as "Megan's Law." The separate opinions of the Court of Appeals are diverse, however, all three opinions involve an appeal from a circuit court Sex Offender Risk Determination, classifying each of the defendants being released as a "high-risk sex offender," requiring lifetime registration unless redesignated. Hyatt v. Commonwealth affirmed the constitutionality of the statutes but reversed and remanded for a New Risk Assessment hearing. In Hall v. Commonwealth, a split panel of the Court of Appeals affirmed the order. In the third case, Commonwealth v. Sims, which also includes a cross-appeal, the panel unanimously reversed and vacated, declaring the entire statutory system unconstitutional as a violation of the state constitutional separation of powers provisions. This Court accepted discretionary review in order to reach a definitive disposition of the constitutional questions involved. A companion case, Martinez v. Commonwealth, 2000-SC-1135-TG, will be considered separately.

We have carefully reviewed all of the authorities and arguments raised by the respective parties in these appeals. We will briefly discuss the facts and procedural histories of each case. As far as possible, we have combined common issues or cross referenced them in the opinion. We address individual issues separately as needed.

Legislative History

In response to a general nationwide public outrage concerning the abduction and sexual abuse of children a number of states have attempted to find legislative ways to protect such children. Lawmakers have expressed a particular concern for the high rate of recidivism by perpetrators of sex crimes. New Jersey gained national recognition after it adopted a sex offender registration law which has become known as "Megan's Law," named after a child abducted, raped and murdered by a known child molester who had moved across the street from the child's family without their knowledge. The constitutionality of the New Jersey legislation was upheld by the New Jersey Supreme Court in Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995).

In 1994, Congress adopted the Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Act to encourage individual states to adopt sex offender registration statutes. If a state did not adopt some version of Megan's Law with certain provisions, Congress could withhold 10 percent of the funds that the state would ordinarily receive under 42 U.S.C. § 3765, the Omnibus Crime Control and Safe Streets Act of 1968.

In response, the Kentucky General Assembly adopted the first version of Megan's Law in 1994, codified as KRS 17.500-540 which required persons to register in certain circumstances after being convicted of a sex crime. Under this Act, offenders were required to register for a period of ten years following their discharge from confinement or ten years following their maximum discharge date on probation, shock probation, conditional discharge, parole or other form of early release, whichever period was greater. See KRS 17.520, which was repealed in part and amended in part in 1998. Failure to register would subject the person to a charge of a Class A Misdemeanor. The law applied to any person who pled guilty or was convicted of a sex crime after July 15, 1994.

In 1998, the legislature amended the sex offender registration laws and imposed additional requirements of classification of offenders based on their potential of recidivism and public notification depending on the classification. The principal change from 1994 to 1998 was the creation of a classification as to the potential for recidivism. The law also provided for a risk assessment. The 1998 Act, KRS 17.500-540 and KRS 17.550-991 applied to persons individually sentenced or incarcerated after July 15, 1998. KRS 17.520, 17.552, 17.570-578 and 17.991 did not become effective until January 15, 1999.

In 2000, the General Assembly again amended the statute so as to provide for the elimination of any need for a hearing in the risk assessment procedure and extended the registration requirements to include an Internet Web site which posted the relevant information of the convicted sex offender including a photograph and address.

I. Hyatt v. Commonwealth, 2000-SC-0676-DG

In this case, Hyatt sexually abused his younger sister over a period of time. In 1991, he pled guilty to one count of first-degree sexual abuse and the circuit court sentenced him to one year in prison. The sentence was suspended and Hyatt was probated for a period of three years. After the trial judge revoked his probation, Hyatt pled guilty to additional charges of second-degree rape and second-degree sodomy. In 1993, the circuit court sentenced him to five years in prison on each count to be served consecutively.

On January 11, 1999, the circuit court ordered Hyatt, an inmate, to undergo a sex offender risk assessment pursuant to KRS 17.570. That statute provides:

Upon conviction of a "sex crime" as defined in KRS 17.500 and within sixty calendar days prior to the discharge, release, or parole of a sex offender, the sentencing court shall order a sex offender risk assessment by a certified provider for the following purposes: (a) To determine whether the offender should be classified as a high, moderate or low risk sex offender; (b) To designate the length of time a sex offender shall register pursuant to KRS 17.500 to KRS 17.540 and (c) To designate the type of community notification that shall be provided upon the release of the sex offender pursuant to KRS 17.500 to 17.540.

Hyatt was represented by counsel at a hearing and on the morning of the hearing the risk assessment arrived by facsimile and the circuit court admitted the report. Hyatt did not present any evidence to counter the conclusions of the report and the court relied on the report exclusively to classify Hyatt as a high-risk sex offender. Hyatt appealed this classification to the Court of Appeals which affirmed in part, reversed in part and remanded. The Court of Appeals noted the differences between the 1994 and 1998 Acts in that the 1994 Act required a sex offender to register within two weeks of his release from prison and to remain registered for ten years. In 1998, the General Assembly amended the statute to require sex offenders to be classified as low, moderate or high risk offenders which in turn would determine the length of time the defendant was required to register and who would be notified of such registration.

The Court of Appeals panel rejected the constitutional objections of Hyatt to the statutory system and found that neither double jeopardy, ex post facto, nor due process rendered the statute unconstitutional. The Court of Appeals did reverse and remand on procedural due process grounds, holding that Hyatt was entitled to call expert witnesses and to receive timely notice of the Risk Assessment Report.

Hyatt argues that the Court of Appeals erred in holding that the 1998 and 2000 versions of KRS 17.500 et seq. on their faces, and as applied to him, did not violate the ex post facto clauses of the state and federal constitutions. He contends that the retroactive application of the 1998 and 2000 statutes violates his state and federal protection against ex post facto legislation and that the Kentucky Registration and Notification Statutes were not intended to apply to persons who were convicted before July 15, 1994. He was assessed under the 1998 Act.

Hyatt also maintains that the Court of Appeals erred in determining that he had no protected liberty interest and also failed to provide the circuit court with sufficient guidance on the procedures that it should follow upon remand, thus violating his federal and state constitutional due process rights.

The Commonwealth responds that the Sex Offender Registration Statute does not violate the constitutional protection against ex post facto laws and does not violate liberty interests in privacy or reputation. It claims that the Court of Appeals provided the trial court with sufficient guidance upon rehearing for a new risk assessment.

A. Ex post facto

There is no question that the registration statute has a retroactive effect in this case. At the time Hyatt committed the sex crimes against his younger sister, he was not required to register as a sex offender. However, Hyatt is not able to satisfy the second prong of the ex post facto test set out in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), or Lattimore v. Corrections Cabinet, Ky.App., 790 S.W.2d 238 (1990). Graham, supra, sets out a two-pronged test to establish whether a criminal or penal law was ex post facto to the effect that "it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." See also Lynce...