Summary
In Lewis, the defendant, like Martin, had a conviction for two counts of first-degree sexual abuse of a victim less than twelve.
Summary of this case from Martin v. Ky. Dep't of Corr.Opinion
NO. 2015-CA-001240-MR
01-13-2017
STEVEN LEWIS APPELLANT v. COMMONWEALTH OF KENTUCKY, KENTUCKY STATE POLICE APPELLEE
BRIEF FOR APPELLANT: Bradley Fox Covington, Kentucky BRIEF FOR APPELLEE: Graham Gray Frankfort, Kentucky Heather C. Wagers Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 14-CI-00622 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND TAYLOR, JUDGES. KRAMER, CHIEF JUDGE: Steven Lewis appeals the Franklin Circuit Court's order granting the Kentucky State Police's (KSP's) motion to dismiss. After a careful review of the record, we affirm because Lewis is required to register as a sex offender for his lifetime.
In 1996, Lewis was indicted on two counts of first-degree rape and two counts of first-degree sexual abuse. The victim to each of these crimes was less than twelve years old, according to the indictment. The Commonwealth made an offer on a plea of guilty, in which it agreed that if Lewis entered guilty pleas to the two counts of first-degree sexual abuse, the Commonwealth would recommend sentences of three years for each, to be served consecutively for a total of six years. The Commonwealth also offered to dismiss the two counts of first-degree rape if Lewis stipulated to probable cause. Lewis moved to enter a guilty plea in accord with the Commonwealth's offer.
In March 1997, the circuit court entered its judgment accepting Lewis's guilty plea and finding him guilty of two counts of first-degree sexual abuse. He was sentenced to three years of imprisonment on each count. The two counts of first-degree rape were dismissed.
In 2000, Lewis was released from prison. In May 2014, Lewis moved for a declaration of his rights. He sought a declaration that he was only required to register as a sex offender for ten years, and not for his lifetime. The KSP moved to dismiss Lewis's motion, contending that he is required to register for his lifetime because he committed a sex crime against a minor and because his duty to register is determined by the version of the Sex Offender Registration Act (SORA), KRS 17.500-17.540, that was in effect at the time he was released from prison. The KSP argued that because the 2000 version of SORA was in effect when Lewis was released from prison and that version requires registration for a lifetime, Lewis was obligated to register for his lifetime.
Kentucky Revised Statutes. --------
The circuit court agreed with the KSP and granted its motion to dismiss. Lewis now appeals, contending that the circuit court erred in dismissing his motion for a declaration of rights because the court should have ordered his sex offender registration requirement to be changed from a lifetime to ten years.
In ruling on a motion to dismiss, the pleadings should be liberally construed in the light most favorable to the plaintiff, all allegations being taken as true. Therefore, the question is purely a matter of law. Accordingly, the trial court's decision will be reviewed de novo. Further, it is true that in reviewing a motion to dismiss, the trial court is not required to make any factual findings, and it may properly consider matters outside of the pleadings in making its decision. However, reliance on matters outside the pleadings by the court effectively converts a motion to dismiss into a motion for summary judgment.D. F. Bailey, Inc. v. GRW Engineers, Inc., 350 S.W.3d 818, 820-21 (Ky. App. 2011) (internal quotation marks and citations omitted).
SORA was first enacted in 1994. It was amended in 1998 and again in 2000. "The 2000 amendments applied to persons who 'after the effective date of this Act, are required . . . to become registrants. . . .'" Buck v. Commonwealth, 308 S.W.3d 661, 666 (Ky. 2010) (quoting 2000 Ky. Acts ch. 401, § 37 (uncodified)). "In addition, the 2000 version of SORA required registration upon 'release by the court, the parole board, the cabinet or any detention facility.'" Id., (quoting 2000 Ky. Acts ch. 401, § 16(2) (codified at KRS 17.510(2))).
According to Lewis's Kentucky Sex Offender Registry Form, which was attached as an exhibit to the KSP's motion to dismiss that was filed in the circuit court, Lewis was released from prison on December 1, 2000. This was after the effective date of the 2000 amendments to SORA. See KRS 17.500-17.520 (West 2000).
Pursuant to the version of KRS 17.500 that was in effect in 2000, i.e., when Lewis was released from prison, "'[r]egistrant' meant: (a) Any person eighteen (18) years of age or older at the time of the offense . . . who has committed: . . . 2. A criminal offense against a victim who is a minor[.]" KRS 17.500(4)(a)(2) (West 2000). Additionally, the term "criminal offense against a victim who is a minor" included sex crimes, but only "if the victim [was] under the age of eighteen (18) at the time of the commission of the offense[.]" KRS 17.500(2)(a)(3) (West 2000). Lewis was over the age of eighteen when he committed his offenses in this case and the victim was a minor who was under the age of eighteen (i.e., the victim was under twelve years old). "Sex crime" was defined in the 2000 version of KRS 17.500 as: "A felony offense defined in KRS Chapter 510. . . ." KRS 17.500(6)(a) (West 2000). The crime of first-degree sexual abuse, with which Lewis was twice convicted in this case, was a felony offense defined in KRS Chapter 510. See KRS 510.110 (West 2000). Therefore, Lewis's crimes were "sex crimes," and he qualified as a "registrant" under the 2000 version of KRS 17.500.
Pursuant to the 2000 version of KRS 17.510 that was in effect when Lewis was released from prison, "[a] registrant shall, on or before the date of his or her release by . . . any detention facility, register with the appropriate local probation and parole office in the county in which he or she intends to reside." KRS 17.510(2) (West 2000); see also Buck, 308 S.W.3d at 666. Additionally, the 2000 version of KRS 17.520 provided, in pertinent part:
(1) A registrant, upon his or her release by . . . any detention facility, shall be required to register for a period of time under this section.
(2) (a) Lifetime registration is required for:
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KRS 17.520 (West 2000). In the present case, Lewis was convicted of two criminal offenses against a victim who was a minor. Therefore, he was required to register for his lifetime, and the circuit court did not err in dismissing Lewis's motion for a declaration of rights.4. Any person who has been convicted of two (2) or more criminal offenses against a victim who is a minor[.]
Accordingly, the order of the Franklin Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Bradley Fox
Covington, Kentucky BRIEF FOR APPELLEE: Graham Gray
Frankfort, Kentucky Heather C. Wagers
Frankfort, Kentucky