Filed: Aug. 02, 2013
Latest Update: Aug. 02, 2013
Summary: NOT TO BE PUBLISHED OPINION DIXON, JUDGE. Appellant, Carl Theodore Johnson, appeals from an order of the Jefferson Circuit Court denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion to remove his name from the sexual offender registry and to terminate any further registration requirements. In 1996, Appellant pled guilty to two counts of first-degree sexual abuse. He was sentenced to five years' imprisonment probated for a period of five years and ordered to register as a sex offen
Summary: NOT TO BE PUBLISHED OPINION DIXON, JUDGE. Appellant, Carl Theodore Johnson, appeals from an order of the Jefferson Circuit Court denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion to remove his name from the sexual offender registry and to terminate any further registration requirements. In 1996, Appellant pled guilty to two counts of first-degree sexual abuse. He was sentenced to five years' imprisonment probated for a period of five years and ordered to register as a sex offend..
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NOT TO BE PUBLISHED
OPINION
DIXON, JUDGE.
Appellant, Carl Theodore Johnson, appeals from an order of the Jefferson Circuit Court denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion to remove his name from the sexual offender registry and to terminate any further registration requirements.
In 1996, Appellant pled guilty to two counts of first-degree sexual abuse. He was sentenced to five years' imprisonment probated for a period of five years and ordered to register as a sex offender pursuant to the Sex Offender Registration Act ("SORA"). At the time of his registration, Appellant was statutorily required to register for a period of ten years. However, in April 2000, our legislature amended SORA to require lifetime registration for new registrants.
Subsequently, in December 2000, Appellant violated his probation and was ordered to serve his five-year sentence. Upon his release in 2003, the Department of Corrections required Appellant to sign a new Kentucky Criminal Offender Registry form which stated that his registry status was "Lifetime." The form designated the period of registration for those persons being released from incarceration in 2003 who, like Appellant, were convicted of "two (2) or more felony criminal offenses against a victim who is a minor[.]" Kentucky Revised Statutes (KRS) 17.520.
In February 2012, Appellant filed a motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 and CR 60.02 asking the trial court to enter an order "requiring the Department of Corrections, the Kentucky State Police, Criminal Identification & Records Branch, and/or any other entity that maintains the state sex offender registry pursuant to KRS 17.520, to remove the Defendant's name from the Sexual Offender Registry and to release him from any monitoring requirements the Defendant would otherwise be forced to follow based on his current registration." Appellant argued that the revised lifetime registration requirement contained in the 2000 SORA amendments applied only to new registrants. He contended that since he was already a registrant in 2000, he could not have become a registrant upon his release from incarceration.
By opinion and order rendered on May 16, 2012, the trial court denied Appellant's motion. Therein, the trial court concluded:
Sex offender registration requirements are tolled during periods of incarceration. KRS 17.520(4). Therefore, after Defendant's revocation and during his incarceration, he was no longer a registrant. Only upon his eventual release was he required to again register as a sex offender under the terms of SORA. Because his duty to register was no longer suspended, he was required to once again become a registrant. Therefore, he was subject to the terms of the 2000 SORA amendments, which require lifetime registration for Defendant.
Appellant thereafter appealed to this Court.
In January 2013, the Commonwealth filed a motion in this Court to dismiss Appellant's appeal on the grounds that a motion in the trial court seeking a court order to control the independent actions of the Department of Corrections is an inappropriate vehicle for relief. No response was filed to the Commonwealth's motion to dismiss. Since the motion was subsequently passed to this panel for a determination, we will undertake to address it first.
In Hoskins v. Commonwealth, 158 S.W.3d 214 (Ky. App. 2008), the defendant had filed a CR 60.02(f) motion in the trial court to correct his sentence, arguing that he had been incorrectly classified as a violent offender by the Department of Corrections, thus resulting in a longer period of time before he would be eligible for parole consideration. The trial court denied the motion and, on appeal, a panel of this Court noted that the violent-offender classification was an action taken by the Department of Corrections and not by the sentencing court. As such, the panel concluded that "Hoskins' attack on his violent-offender classification is not procedurally correct. As noted by the Commonwealth, it appears that the correct path for Hoskins to have taken was to proceed against the Department of Corrections with an original action before the Franklin Circuit Court." Id. at 217.
Our Supreme Court reached a similar result in Mason v. Commonwealth, 331 S.W.3d 610 (Ky. 2011), wherein the appellant had sought an order requiring the Department of Corrections to classify him as a non-violent offender. On appeal, the Court held:
[I]t is beyond dispute that a court generally should not issue an opinion or judgment against an entity that is not a party to the action or is not otherwise properly before the court. We decline, therefore, to order the Department of Corrections—which has not been made a party to this appeal and is not properly before us to either defend its action or to confess error—to take any affirmative action with regard to Mason's offender classification or parole eligibility. Mason is free to file a separate action against the Department of Corrections, such as a declaratory judgment action, seeking to have his parole eligibility recalculated.
Id. at 628-29.
As in Hoskins and Mason, Appellant herein is seeking an order from the trial court directing the Department of Corrections and the Kentucky State Police to remove him from the sex offender registry and relieve him from any further monitoring requirements. Yet neither entity was properly before the trial court or this Court to "either defend its action or to confess error." Thus, while we do not disagree with the trial court's decision herein, we are of the opinion that Hoskins and Mason are procedurally dispositive and necessitate dismissal of Appellant's appeal.
For the reasons stated herein, Appellant's appeal in this matter is dismissed.
ALL CONCUR.
