 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Hyatt v. Commonwealth7/7/2000
no question but that the sex offender registration statutes are being applied retroactively. Hyatt committed the crimes to which he pled guilty prior to 1991. The sex offender registration statutes did not become effective until 1994. Thus, we conclude that the first element has been met.
We must now focus on whether Hyatt has been disadvantaged by the application of the statutes. In answering this question, we must consider whether the statutes are punitive or regulatory.
Hyatt "bears the `heavy burden' of overcoming the regulatory or remedial purpose served by notification, a burden that may be sustained only by the `clearest proof' that notification is `so punitive in form and effect' as to render it punitive despite prospective, regulatory intent." In Kansas v. Hendricks, the U.S. Supreme Court applied many of the same Kennedy factors in determining whether a statute was an ex post facto law. In the same manner, we will apply the Kennedy factors in this case that were articulated earlier.
In light of our previous analysis, we conclude that Kentucky sex offender registration statutes are not intended to punish sex offenders. Thus, the laws, KRS 17.500-.991, do not impose additional punishment on Hyatt and are not ex post facto laws under the United States Constitution or Kentucky Constitution.
IV. JURISDICTION
Hyatt argues that the circuit court lacked subject matter jurisdiction because the court scheduled the hearing prior to the effective date of KRS 17.570, which requires the hearing. Although this issue was not raised below, Hyatt believes that it can be raised for the first time on appeal in light of the decision in Commonwealth Health Corp. v. Croslin, where the Supreme Court noted that "defects in subject matter jurisdiction may be raised by the parties or the court at any time and cannot be waived." We agree that we can address Hyatt's challenge to the subject matter jurisdiction of the circuit court.
KRS 17.570(1) directs the sentencing court to order a risk assessment sixty days prior to the sex offender's release from incarceration. A certified provider conducts the assessment and sends a report to the court. In this case, the court ordered the assessment on January 11, 1999. However, KRS 17.570 did not become effective until January 15.
The circuit court did not classify Hyatt as a sex offender prior to the effective date of the law, nor did Dr. Wagner conduct his assessment prior to that date. Rather, the circuit court merely ordered that the evaluation take place. We believe that the January 11 order providing for the evaluation did not invalidate the court's subsequent classification of Hyatt as a sex offender.
V. DUE PROCESS
Hyatt also argues that the circuit court violated his due process rights by: (1) not providing a copy of the risk assessment to him or his counsel until the morning of the hearing; (2) not requiring Dr. Wagner, the certified provider, to authenticate the report or submit to cross-examination regarding its contents; (3) not requiring the victim to testify; and (4) not allowing Hyatt to present expert testimony to refute Dr. Wagner's recommendation that Hyatt should be classified as a high risk sex offender. Because we agree with some of Hyatt's arguments, we reverse and remand this case for another risk assessment hearing.
A. DUE PROCESS RIGHTS IMPLICATED BY RIGHT OF PRIVACY
Hyatt avers that the release of personal information contained in the sex offender registry violates his right of privacy under the United States Constitution. Even if this right is not protected in these circumstances under the U.S. Constitution, Hy
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Kentucky DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|