Moffitt v. Commonwealth, 2010–CA–001822–MR.

• Decision Date: 03 February 2012
• Docket Number: No. 2010–CA–001822–MR.,2010–CA–001822–MR.
• Citation: 360 S.W.3d 247
• Parties: Brian M. MOFFITT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

360 S.W.3d 247

Brian M. MOFFITT, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–CA–001822–MR.

Court of Appeals of Kentucky.

Feb. 3, 2012.

Bradley Fox, Covington, KY, for appellant.

Jack Conway, Attorney General of Kentucky, Jason B. Moore, Assistant Attorney General, Frankfort, KY, for appellee.

Before ACREE and WINE,¹ Judges; LAMBERT,² Senior Judge.

OPINION

ACREE, Judge:

The question presented in this appeal is whether Kentucky's Sex Offender Registration Act (“SORA” or the “Act”), codified at Kentucky Revised Statutes (KRS) 17.500—17.580, is unconstitutional as applied to Appellant, Brian Moffitt, on the grounds that it violates his procedural and substantive due process rights. Because we find Kentucky's SORA constitutionally sound, we affirm the Livingston Circuit Court's August 27, 2010 order denying Moffitt relief.

I. Facts and Procedure

In June 2002, Moffitt was convicted of kidnapping a minor child in violation of KRS 509.040(b).³ The specific instruction under which the jury found Moffitt guilty stated:

You will find [Moffitt] guilty under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in this County on or about July 15, 2001, and before the finding of the indictment herein, the Defendant, Brian Mason Moffitt, restrained [B.C.] by forcibly removing her from her home and taking her to and keeping her in Livingston County by force or intimidation;

B. That the restraint was without [B.C.'s] consent;

AND

C. That in so restraining [B.C.] it was [Moffitt's] intention to accomplish or advance the commission of Rape, First Degree, and/or Sodomy, First Degree.

(Trial Record, p. 81). The jury recommended a fifteen-year prison sentence, and on August 7, 2002, the Livingston Circuit Court sentenced Moffitt consistent with the jury's recommendation. Moffitt appealed his conviction, which this Court ultimately affirmed.⁴ Moffitt v. Commonwealth, 2004 WL 178568, at *1 (Ky.App. Jan. 30, 2004) (2004–CA–002143–MR), disc. rev. denied Dec. 8, 2004.

Following Moffitt's release from prison in March 2010, the local probation and parole office ordered him to register, for his lifetime, on the Kentucky State Police Sex Offender Registry pursuant to KRS 17.510 and 17.520(2)(a). Moffitt later filed a motion pursuant to Kentucky Rules of Civil Procedure (CR) 60.02 ⁵ in the Livingston Circuit Court requesting removal from the Sex Offender Registry on the grounds that Kentucky's SORA, as applied to him, violated his procedural and substantive due process rights because he did not commit a sex crime. By order dated August 27, 2010, the circuit court denied Moffitt's motion. Moffitt promptly appealed.

II. Standard of Review

Whether Kentucky's SORA is unconstitutional on due process grounds is a question of law. Wilfong v. Commonwealth, 175 S.W.3d 84, 91 (Ky.App.2004). Accordingly, we apply a de novo standard of review. Id.; Hamilton–Smith v. Commonwealth, 285 S.W.3d 307, 308 (Ky.App.2009).

III. Kentucky's Sex Offender Registration Act

The Kentucky General Assembly first adopted the SORA in April 1994. 1994 Ky. Acts ch. 392; Hyatt v. Commonwealth, 72 S.W.3d 566, 569 (Ky.2002). As in most states, the Act was known as this Commonwealth's “Megan's Law.” ⁶ Hyatt, 72 S.W.3d at 569. The Act required that the names of persons convicted of sex crimes be placed on the Sex Offender Registry. Commonwealth v. Nash, 338 S.W.3d 264, 266–67 (Ky.2011); Hyatt, 72 S.W.3d at 569–70.

Shortly thereafter, on September 13, 1994, President Clinton signed into law the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (“Jacob Wetterling Act”), 42 U.S.C. § 14071. The Jacob Wetterling Act required states to implement a sex offender and crimes against children registry. Hyatt, 72 S.W.3d at 569. To ensure compliance, Congress conditioned federal funding on states enacting the requisite registration statutes; states that failed to do so would forfeit ten percent of the funds they would customarily receive under 42 U.S.C. § 3765, the Omnibus Crime Control and Safe Streets Act of 1968. Id. In 1996, Congress amended the Jacob Wetterling Act to also require states to establish a community notification system which made registry information available to the public. See People v. Johnson, 225 Ill.2d 573, 312 Ill.Dec. 350, 870 N.E.2d 415, 424 (2007); People v. Cintron, 13 Misc.3d 833, 827 N.Y.S.2d 445, 448 n. 6 (N.Y.2006).

In 2000,⁷ the Kentucky General Assembly amended its SORA to ensure compliance with the Jacob Wetterling Act.⁸ Specifically, the General Assembly required registration by any person convicted of a sex crime or an enumerated offense against a minor provided the offender was eighteen years old or older at the time he committed the offense. KRS 17.510(6), 17.500(5)(a); ⁹ see also Hamilton–Smith v. Commonwealth, 285 S.W.3d 307 at 309 (emphasizing “[a]ny person who has been convicted of a ‘criminal offense against a victim who is a minor’ [as defined in KRS 17.500(5) ] is required to register”). The Act defined a “criminal offense against a minor” to include kidnapping in violation of KRS 509.040, the statute of which Moffitt was convicted in 2002. KRS 17.500(3)(a); see also Ladriere v. Commonwealth, 329 S.W.3d 278, 281 (Ky.2010) (reiterating “kidnapping under KRS 509.040 is explicitly included in the definition of a ‘criminal offense against a victim who is a minor,’ if the victim is under the age of eighteen” (citation omitted)). The Act also mandated lifetime registration of persons convicted of kidnapping in violation of KRS 509.040. KRS 17.520(2)(a); Ladriere, 329 S.W.3d at 281 (explaining lifetime registration due to criminal conviction for kidnapping a minor).

The Kentucky Legislature again amended the Act in 2006, 2007, 2008, 2009, and 2011. See Nash, 338 S.W.3d at 267–68 (describing the 2006, 2007, and 2008 amendments); 2009 Ky. Acts ch. 105, §§ 5, 6, 7; 2009 Ky. Acts ch. 100, §§ 6, 7, 8; 2011 Ky. Acts ch. 2, §§ 92, 93. However, the pertinent sections set forth above have not been discarded or displaced, and remain applicable today.

IV. Analysis

Moffitt concedes the crime for which he was convicted was against a minor. Moffitt also acknowledges Kentucky's General Assembly has ordered that persons convicted of a crime in which the victim was a minor, including kidnapping, are required to register for their lifetimes. KRS 17.510(6), 17.520(2)(a). Yet, Moffitt contends Kentucky's SORA, as applied to him, ¹⁰ violates the Due Process Clause of the 14th Amendment of the U.S. Constitution because kidnapping is not a sex crime, nor does it contain a sexual element.¹¹

A. Procedural Due Process Claim

First, Moffitt asserts he was deprived of his procedural due process rights when he was not provided an opportunity to dispute his placement on the Kentucky State Police Sex Offender Registry. In essence, Moffitt contends Kentucky's SORA violates procedural due process, as applied to him, because the requirement to register is automatic and the Act fails to provide a meaningful opportunity for him to challenge that requirement. Moffitt's argument lacks merit.

The Fourteenth Amendment to the United States Constitution ensures that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1; accord amend. V. This Clause restrains the government from depriving a person of his life, liberty, or property rights without first providing him with notice and an opportunity to be heard. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976); Miller v. Johnson Controls, Inc., 296 S.W.3d 392, 397 (Ky.2009).

Unfortunately for Moffitt, “[p]rocedural due process challenges to state sex-offender registry statutes that mandate the registration of all convicted sex offenders have been foreclosed by the Supreme Court's decision in [ Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003) ].” Doe v. Michigan Dept. of State Police, 490 F.3d 491, 502 (6th Cir.2007).

In Connecticut Department of Public Safety v. Doe, the Supreme Court addressed whether procedural due process entitled sex offenders to a pre-deprivation hearing prior to being listed on Connecticut's sex-offender registry. 538 U.S. at 4, 123 S.Ct. at 1162–63. Under Connecticut's statutory scheme, “individuals included within the registry are included solely by virtue of their conviction record and state law.” Id. at 7, 123 S.Ct. at 1164. Because the registration requirement arose automatically based only on the offender's conviction for a particular crime, the Court reasoned that, under the Connecticut statute, due process did not entitle sex offenders to a pre-deprivation hearing. Id. The Court further explained that, under similar statutory schemes, challenges based on one's inclusion on registries “ ‘must ultimately be analyzed’ in terms of substantive, not procedural, due process.” Id. at 8, 123 S.Ct. at 1165 (citing Michael H. v. Gerald D., 491 U.S. 110, 121, 109 S.Ct. 2333, 2341, 105 L.Ed.2d 91 (1989)).

Similar to the Connecticut statute, Kentucky's SORA requires the registration of all offenders convicted of a crime in which the victim was a minor, as defined in KRS 17.500(3). Likewise, the registration requirement turns solely on the offender's conviction alone—“a fact that [the] convicted offender has already had a procedurally safeguarded opportunity to contest.” Connecticut Dept. of Public Safety, 538 U.S. at 7, 123 S.Ct. at 1164. Therefore, in Kentucky, all qualifying offenders convicted or sentenced after a certain date are listed on Kentucky's Sex Offender Registry without exception.

Here, Moffitt concedes that he was convicted of kidnapping, a crime that requires registration on Kentucky's Sex Offender Registry. Further, Moffitt received a full and procedurally safeguarded trial, and had an opportunity at that trial to...