Opinion
NO. 2014-CA-000445-MR
01-09-2015
RANDY DALE JOBE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Robert C. Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Nate T. Kolb Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYD CIRCUIT COURT
HONORABLE GEORGE W. DAVIS, JUDGE
ACTION NO. 12-CR-00196
OPINION
REVERSING AND REMANDING
BEFORE: COMBS, JONES, AND MAZE, JUDGES. COMBS, JUDGE: Randy Dale Jobe appeals from the February 12, 2014, final judgment of the Boyd Circuit Court, which sentenced him to an aggregate ten-year sentence for fourteen counts of distribution of matter portraying a sexual performance by a minor. Specifically, Jobe appeals from that portion of his judgment which ordered him to attend and complete the Sex Offender Treatment Program ("SOTP"). Because we hold that the trial court was not statutorily authorized to order SOTP for Jobe's charges, we reverse and remand.
In September of 2013, Jobe entered into a guilty plea to fourteen counts of distribution of matter portraying a sexual performance by a minor. In December, a disagreement arose about whether Jobe could be court ordered to complete SOTP. Jobe submitted a brief on the issue, in which he argued that his crimes did not warrant completion of SOTP, and sentencing was delayed. The trial court ultimately determined that Jobe was required to participate in SOTP, and on February 12, 2014, a final judgment and sentence was entered in which Jobe received an aggregate ten-year sentence and was ordered to complete SOTP. This appeal followed.
Job's sole argument on appeal is that the trial court erred when it ordered him to complete SOTP. In particular, he argues that his crimes of distribution of matter portraying a sexual performance by a minor are not statutorily subject to the requirement. The Commonwealth agrees. After careful review, this Court agrees as well.
Kentucky Revised Statutes (KRS) 197.400 instructs the completion of SOTP by "sexual offenders." KRS 197.400. As both Jobe and the Commonwealth point out, a sexual offender is statutorily defined as a person who "has been adjudicated guilty of a sex crime, as defined in KRS 17.500." KRS 197.410 (1). A "sex crime" is defined, in short, as "[a] felony offense defined in KRS Chapter 510, or KRS 530.020, 530.064(1)(a), 531.310, 531.320, or 531.335." KRS 17.500(8)(a). The Supreme Court of Kentucky has confirmed that only those defendants found guilty of committing a "sex crime" as defined by KRS 17.500 are subject to the requirements of KRS 197.400. Ladriere v. Commonwealth, 329 S.W.3d 278, 282 (Ky. 2010). The crime of distribution of matter portraying a sexual performance by a minor is governed by KRS 531.340, and is not included in those offenses which comprise the statutory definition of a "sex crime." Accordingly, we agree with Jobe and the Commonwealth that it was statutorily improper to order Jobe to participate in SOTP.
For the foregoing reasons, the February 12, 2014, final judgment of the Boyd Circuit Court is reversed and remanded, with instructions to remove that portion of the order pertaining to SOTP.
ALL CONCUR. BRIEFS FOR APPELLANT: Robert C. Yang
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Nate T. Kolb
Assistant Attorney General
Frankfort, Kentucky