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Mann -v- Commonwealth

3-24-2011 Kentucky:

Mann -v- Commonwealth (Very odd case)

Appellant, John Mann, appeals as a matter of right1 from a judgment entered upon a jury verdict convicting him of first-degree rape, first-degree sodomy, first-degree robbery, and of being a first degree persistent felony offender. For these crimes he was sentenced to a total of forty years' imprisonment.

Appellant now raises three issues in this appeal: (1) that a mistrial should have been granted when, in violation of the trial court's rulings, a police officer testified that Appellant's accomplice, in an out-of-court interview, identified Appellant as a participant in the crimes; (2) that the trial court's imposition of a post-incarceration, five-year period of conditional discharge pursuant to KRS 532.043 violates ex post facto principles; and (3) that the trial court's imposition of sex offender residency restrictions pursuant to KRS 17.545 violates ex post facto principles. The Commonwealth concedes that Appellant is entitled to relief with respect to imposition of post-incarceration conditional discharge and residency restrictions.

For the reason set forth below, we affirm Appellant's conviction, but agree that ex post facto considerations do not permit the imposition of a fiveyear period of conditional discharge or the imposition of the current sex offender residency restrictions. We accordingly remand for entry of a new judgment excluding these terms and conditions.

Supreme Ex post facto clause violated two ways: A) Imposition of 5-yr period of conditional discharge (before a certain date was not allowed); B) Residency law requirements also (before a certain date was not allowed).

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