MARVIN GARDNER v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 19, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000506-MR
MARVIN GARDNER
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH McDONALD-BURKMAN, JUDGE
ACTION NO. 82-CR-000565
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE: BARBER, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Marvin Gardner has appealed to this Court from
the order of sex offender risk determination entered by the
Jefferson Circuit Court on January 27, 1999, finding Gardner to
be a high risk sex offender.
This appeal was abated by this
Court pending resolution by the Supreme Court of Kentucky of a
constitutional challenge to the sex offender registration and
notification statutes.1
On February 21, 2002, the Supreme Court
rendered its opinion in Hyatt v. Commonwealth,2 upholding the
constitutional validity of those statutes.
We affirm the circuit
1
Kentucky Revised Statutes (KRS) 17.500 et seq.
2
Ky., 72 S.W.3d 566 (2002).
court judgment as to the constitutionality of the statute and its
application to Gardner.
However, under the guidelines of Hyatt
and the statute, we hold that Gardner was not provided a proper
hearing in circuit court and that the order improperly imposed
certain conditions.
Therefore, we must reverse the risk
determination made by the circuit court, and remand this matter
for a new hearing.
On January 13, 1983, pursuant to Gardner’s guilty
pleas, the Jefferson Circuit Court convicted him under indictment
number 82-CR-001234 of rape, sodomy, sexual abuse, robbery and
terroristic threatening.
Gardner received concurrent prison
sentences totaling 20 years.
On March 29, 1983, pursuant to
Gardner’s guilty pleas, a different division of the Jefferson
Circuit Court convicted him under indictment number 82-CR-000565
of sexual abuse in the first degree,3 unlawful imprisonment in
the first degree,4 and wanton endangerment in the first degree.5
Gardner received two-year prison sentences for each of these
three convictions with the three two-year sentences to run
concurrently with each other, but consecutively with the previous
20-year sentence for a total of 22 years.
As the date for Gardner’s release from prison
approached, a hearing was conducted in the Jefferson Circuit
Court on January 25, 1999.
by counsel.
Gardner was present and represented
Gardner sought a continuance so that he and his
3
KRS 510.110.
4
KRS 509.020.
5
KRS 508.060.
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counsel could prepare.
The continuance was denied and the
circuit court found Gardner to be a high risk sex offender.
This
appeal followed.
After the Supreme Court’s opinion in Hyatt became
final, this Court entered an order directing the Commonwealth to
show cause why the circuit court’s order should not be reversed
and the matter remanded for a new hearing.
In response to that
show cause order, the Commonwealth stated its objection to the
summary reversal arguing that the reversals for new hearings in
the Hyatt opinion were fact specific and did not have any
application to Gardner’s appeal.
However, we note that when the
Supreme Court in Hyatt addressed the appeal of the companion case
involving Dennis Hall, it stated:
B. Provider’s Report
The procedural due process rights of
Hall were violated at the risk assessment
hearing because the author of the report
failed to attend. Consequently, this case is
remanded to the circuit court to conduct an
evidentiary hearing in accordance with the
pre-2000 amendments. Such a hearing would
require the attendance of the author of the
report as well as the right of Hall to call
expert witnesses to rebut the same. The
trial judge has the authority to accept the
results of the risk assessment evaluation
without qualifying the tests pursuant to
Daubert6 or Kumho.7 8
6
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
7
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct.
1167, 143 L.Ed.2d 238 (1999).
8
Supra at 577.
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In the case sub judice, Gardner specifically sought a
continuance so he and his counsel could prepare for the hearing.
Gardner had only received notice of the hearing 11 days before,
and his appointed counsel was notified of his appointment on
January 21, 1999.
No one except the circuit judge had had an
opportunity to review the 10-page report before the day of the
hearing.
We believe Gardner has been denied his right to due
process as recognized in Hyatt.
Certainly, providing the inmate
and his counsel the opportunity to review the sex offender
assessment report, to prepare to cross-examine the author of the
report, and to obtain an expert to rebut the report is required
by Hyatt.
Therefore, pursuant to Hyatt, we are required to
reverse the order and to remand this matter for a new evidentiary
hearing.
We also note an issue raised by Gardner which is not
specifically addressed in Hyatt.
He challenges the application
of the 1998 amendments to him since he was convicted prior to the
effective date of the amendments.
In Hyatt, the Supreme Court
found the 1998 amendments to be applicable to three inmates who
had been incarcerated before the effective date of the
amendments, and remained incarcerated on the effective date of
the amendments.
Section 199 of 1998 Kentucky Acts Chapter 606
reads as follows:
The provisions of Sections 138 through
155 of this Act shall apply to persons
individually sentenced or incarcerated after
the effective date of this Act.9
9
The effective date was July 15, 1998.
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The statute does not use the words “began incarceration” or
“entered into incarceration”.
The Legislature has directed that
the amendments apply to persons “incarcerated after the effective
date of the Act.”
If the Legislature had intended to apply the
1998 amendments only to individuals who received sentences after
the effective date of July 15, 1998, there would have been no
need to add the phrase “or incarcerated”.
We believe the use of
this additional phrase clearly shows the Legislature’s intent to
also include inmates who had been sentenced before July 15, 1998,
and remained incarcerated on July 15, 1998.
Since Gardner was
incarcerated at the time the Act became effective, the Act does
apply to him and it was proper for the circuit court to make the
Sex Offender Risk Determination.
Finally, Gardner contends that the trial court erred in
including in its order “further conditions upon release.”
In
response, the Commonwealth argues that since no objection was
made to the court’s imposition of those conditions during the
course of the hearing, that any error is unpreserved.
However,
we must note that the hearing before the trial court was solely
for the purpose of determining Gardner’s classification as sex
offender.
As the trial court pointed out several times during
the hearing, such a classification was the sole purpose of the
hearing.
There is simply no provision in the statutes which
would allow the circuit court to impose additional conditions.
However laudable the efforts of the circuit judge may be in this
area, in this case she exceeded her authority.
Accordingly, to the extent the circuit court’s order
upheld the constitutionality of the statutes and found the 1998
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amendments applicable to Gardner, we affirm.
However, the order
of sex offender risk determination is reversed based on the
circuit court’s denial of the continuance and the imposition of
additional conditions.
This matter is remanded to the Jefferson
Circuit Court for a new evidentiary hearing.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. David Niehaus
Daniel T. Goyette
Louisville, Kentucky
Albert B. Chandler, III
Attorney General
Anitria M. Franklin
Assistant Attorney General
Frankfort, Kentucky
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