CRIMINAL LAW – Sex offender registration, due process notice: Commonwealth v. Kenneth McBride (SC 4/23/2009)

Commonwealth v. Kenneth McBride
2005-SC-000539-DG April 23, 2009
2005-SC-000930-DG April 23, 2009
Opinion by Special Justice Whitlow. Justice Cunningham and Justice Schroder not sitting.

In 1999, McBride was convicted of sexual battery in Tennessee and sentenced to two years imprisonment. In January 2001, McBride moved to Mt. Sterling, Kentucky. In May 2001, McBride was indicted for failing to register as a sexual offender as required by KRS 17.510(7). McBride was found guilty and sentenced to four years imprisonment. The Court of Appeals reversed the conviction because McBride was not given notice of the duty to register in Kentucky, holding that such notice was required by due process, as well as KRS 17.510(6). The Court of Appeals also held that there was an implicit mens rea element to the statute, requiring that defendants must knowingly refuse to register before they can be convicted. In reaching its decision, the Court of Appeals relied upon Lambert, a United States Supreme Court case which held those charged under a California municipal ordinance requiring registration by felons remaining more than five days must have notice of the duty to register.

The Kentucky Supreme Court reversed the Court of Appeals and reinstated the conviction, distinguishing this case from the facts of Lambert. The Court acknowledged “pervasive presence and age” of sexual offender registration statutes, noting that since 1996, all 50 states have such laws. The Court also noted that in Lambert, registration was required for the convenience of law enforcement in compiling a list, whereas Kentucky’s sexual offender registration statute was created out of public safety concerns and is aimed at only a narrow class of offenders. Lastly, the Court observed that sexual offenders have actual notice of their lifetime obligation to register in the state of their original conviction. The Court also held that the notice requirement of KRS 17.510(6) did not require notice be given to those charged and convicted under KRS 17.510(7), since the primary purpose of the section [6] was to require effective administration of the statute by the interstate compact officer—not to create a right of notice for sex offenders.

Justice Noble wrote for the minority (joined by Justice Abramson and Special Justice Mando) and concurred with reinstatement of McBride’s conviction, but felt that, consistent with Petersen, he should be convicted of a misdemeanor under an earlier version of the statute that was in effect when McBride originally registered in Tennessee.

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