Commonwealth v Nash

5-19-2011 Kentucky:

Commonwealth v Nash
No. 2010-SC-000065-DG.

Appellee, Anthony Nash, was convicted, pursuant to a conditional guilty plea, of a first offense violation of Kentucky's Sex Offender Registration Act (a Class D felony), and being a second-degree persistent felony offender. Because Appellee was not required to register as a sex offender, we vacate the opinion of the Court of Appeals, and likewise we vacate the convictions, and remand to the trial court with instructions to dismiss the indictment.

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The Court of Appeals reversed Appellee's conviction in 07-CR-00034 in an opinion rendered January 22, 2010, concluding the application of the 2006 SORA amendments (which increased the penalty on those required to register under current or prior law from a Class A misdemeanor to a Class D felony)8 was an ex post facto law as applied to Appellee. On April 22, 2010, this Court rendered Buck v. Commonwealth, 308 S.W.3d 661 (Ky.2010), upholding the constitutionality of the 2006 amendments to SORA. The Commonwealth requested discretionary review, which this Court granted on October 13, 2010. Before this Court, Appellee argues for the first time that he was never required to register for the 1993 conviction under the 1994 SORA or any amendments thereto. Appellee is correct.

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Appellee was never required to register under any version of SORA.

ANALYSIS

Appellee entered a conditional guilty plea to the registration violation charge (and PFO II), reserving the right to appeal the trial court's denial of his motion to amend (on ex post facto grounds). His argument that he never had to register was not made below, having first been made to this Court, and hence is not preserved. This Court therefore reviews for manifest injustice. RCr 10.26.

On appeal from a conditional guilty plea, this Court will consider an issue which "involve[s] a claim that the indictment did not charge an offense or the sentence imposed by the trial court was manifestly infirm[.]"31 Appellee was never required to register under any version of SORA. As he was not required to register, he cannot be guilty of the crime of failing to register, and any sentence imposed would be manifestly infirm. Under the facts of this case, the indictment should be dismissed.32 As it stands, the Appellee sits in prison wrongfully convicted.

CONCLUSION

For the foregoing reasons, the opinion of the Court of Appeals is vacated and the judgment of the Fayette Circuit Court is likewise vacated, and the matter remanded directly to the Fayette Circuit Court, with instructions to set aside or vacate the judgment and sentence in the above-styled case, and to dismiss the indictment therein, and to order the release of the Appellee, Anthony Nash, from these charges.