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Cardona v Commonwealth

1-22-2010 Kentucky:

Cardona v Commonwealth
No. 2007-CA-002268-MR.

Thomas Cardona, Jr., entered a conditional guilty plea to a class D felony for failure to register as a sex offender. After our review, we determine that application of the 2006 version of the statute which sets forth the penalty for failing to register as a sex offender is an ex post facto application of the law and we reverse the determination of the trial court.

Cardona was found to be an offender requiring registration in New York in 1994. He first registered there on April 29, 2002. He states that he was advised at that time that failure to register was a class A misdemeanor offense. It also appears he maintained his registration while a resident of New York. He moved to Kentucky in November of 2004 and maintained a current registration until September 21, 2006. He was then indicted for the class D felony offense of failing to register as a sex offender as permitted by KRS 17.510(11), as amended in 2006. He moved to dismiss the indictment as an unconstitutional application of ex post facto law, arguing that at the time of his original conviction for a sex offense and all subsequent registration periods, failure to register was a class A misdemeanor. The trial court overruled the motion but accepted his conditional guilty plea, reserving the question of whether the application of a felony charge is an ex post facto law. Pursuant to that plea, he was sentenced to serve one year, with that sentence probated for a period of five years. This appeal followed.

... ... ...

While there is a rational connection, the punishment for noncompliance is excessive in light of the goal of protecting public safety. Being charged with a felony and having to serve more than a year in jail for failing to update an address, as Appellant did here, seems excessive. A simple mistake or forgetfulness on the part of a sex offender could possibly land him in jail for more than year with another felony on his record.3 This could potentially stall his integration back into society after detainment for the original sex offense, cause him to lose his job, and make it more difficult to get another one when he is released.

Balancing these five factors is a close call. Having a separate punishment for violation of a separate law is not historically a punishment. However, the law does serve the traditional aims of punishment: retribution and deterrence. The law also places some disability or restraint on sex offenders because of the risk of being charged with another crime. There is a rational connection between the law and protecting public safety, but the law is excessive in light of this non-punitive purpose.

We note that the 2006 version of the statute provides that any person required to register "who knowingly violates any of the provisions of this section or prior law is guilty of a Class D felony . . ." KRS 17.510(11)(Emphasis added). It makes no sense that simply including the language, "or prior law" will negate an ex post facto violation. We do not believe that it should be that simple to get around a constitutional guarantee.

For the reasons set forth herein, we reverse and remand for action consistent with this opinion.

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