ROBERT LADRIERE V. COMMONWEALTH OF KENTUCKY
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RENDERED : OCT0131R21,2010
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2009-SC-000758-MR
ROBERT LADRIERE
V.
ON APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINFIARDT WARD, JUDGE
NO . 09-CR-00261
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE ABRAMSON
VACATING AND REMANDING
Appellant Robert Ladriere, appeals from a Judgment of the Campbell
Circuit Court, entered upon a guilty plea to one count of kidnapping . Ladriere
agreed to the maximum sentence of twenty years in exchange for the dismissal
of a second-degree persistent felony offender count. In addition to twenty years
imprisonment, the judgment imposed a five-year conditional discharge period
and accompanying conditions following expiration of Ladriere's sentence as
well as other restrictions relative to his duty to register in the sex offender
registration database . Although Ladriere entered an unconditional guilty plea,
he now challenges the additional restrictions and requirements imposed by the
judgment, including the five-year conditional discharge period . Ladriere also
challenge; the imposition of court costs, given his indigent status. Because
this five-year period along with some of the other restrictions included in
Ladriere's sentence are, indeed, contrary to law, we must wicate his seriterice
despite his unconditional guilty plea . The I-)rovisiori orderi g Ladriere to pay
court costs must also bevacated .
RELEVANT FACTS
The events giving rise to the charges h ein occurred on April 10, 2009 .
As recounted in the indictment, Ladriere was in a bathroom stall in the
women's restroom of the county library. When the victim, a ten-year old girl,
entered the adjoining stall, Ladricre put his hand on the ground, looked under
the stall and watched her use the bathroom . Before she could exit the stall, he
entered and backed her up against the wall . When the victim screamed,
Ladriere put his finger to his mouth, signifying for her to be quiet. However, he
fled the bathroom as the victim was about to scream again .
Ladriere was charged with kidnapping pursuant to KRS 509 .040 and as
a persistent felony offender in the second degree (PF02) . Ladriere entered an
unconditional guilty plea to kidnapping despite the plea agreement's inclusion
of a twenty-year sentencing recommendation, the maximum sentence for the
Class B kidnapping felony. In exchange, however, the PF02 count was
dismissed .
During the hearing on Ladriere's guilty plea, there was some confusion
concerning his classification and relative duties with regard to the sex offender
registration laws . The prosecutor stated her belief that the kidnapping
conviction would subject Ladriere to registration and defense counsel
countered that he was unaware of such a requirement. However, in response
to the trial court's offer of additional time to look into tl,),e mattcl-, Ladriere
himself conceded that he was aware that he would be subject to registration .
The trial court then acc
ted Ladriere's guilty plea and set. the matter for final
sentencing .
At the sentencing hearing, the trial court imposed the agreed-upon.
twenty-year sentence . Additionally, the trial court confirmed that La.driere
would be subject to lifetime registration under the sex offender registration
laws . Acknowledging that kidnapping was not a sex offense per se, the trial
court explained that additional restrictions arose out of Ladriere's duty to
register . Specifically, the trial court imposed a five-year conditional discharge
period upon expiration of his sentence, ordered him to complete the Sex
Offender Treatment Program (SOTP) and ordered him to submit to HIV testing .
Further conditions included the statutory residential restriction ; that Ladriere
have no unauthorized contact with minors ; that Ladriere not possess sexually
arousing materials or use photographic or computer equipment ; that Ladriere
not establish a romantic relationship without the permission. of his probation
officer or treatment provider; and that Ladriere not gain employment that may
be used to attract or acquire new victims. Finally, the judgment imposed court
costs upon Ladriere and directed that he pay $125 .00 to the public defender.
On'appeal to this Court, Ladriere asserts that the trial court's imposition
of the five-year conditional discharge period and accompanying conditions was
contrary to law and must be vacated accordingly. He further challenges the
imposition of court costs.
ANALYSIS
1 . Ladriere's Claim That an Illegal Sentence was Imposed Upon Him Falls
Within the Limited Purview of Reviewable Unpreserved Errors Despite
His Unconditional Guilty Plea.
We first address the effect of Ladriere's failure to preserve any issue for
our review . Ladriere entered an unconditional guilty plea to kidnapping, the
effect of which is to vastly "reduce the scope of potentially appealable issues."
Windsor v. Commonwealth, 250 S .W .3d 306, 307 (Ky. 2008) (quoting Roe v.
Flores-Ortega, 528 U .S. 470, 480, 120 S . Ct . 1029 (2000)) . Nevertheless,
sentencing can be one of the few issues not waived by an unconditional plea,
where it is alleged that the sentence was not authorized, contrary to statute, or
otherwise manifestly infirm. Windsor, 250 S .W.3d 306; Ware v.
Commonwealth, 34 S .W.3d 383 (Ky. App . 2000) ; Hughes v. Commonwealth, 875
S-W-2d 99 (Ky . 1994) . As Ladriere's claim of error does, indeed, fall within the
purview of the limited class of errors that survive an unconditional guilty plea
and can be subject to appellate review, we proceed to address the lawfulness of
his sentence.
Nevertheless, the lack of preservation of Ladriere's claims of error renders
our review one for palpable error only . RCr 10 .26 . Under this standard,
reversal is warranted "if a manifest injustice has resulted from the error,"
which requires a showing of the "probability of a different result or error so
fundamental as to threaten a defendant's entitlement to due process of law."
Martin v. Commonwealth, 207 S .W.3d 1, 3 (Ky . 2006) . If, indeed, the judgment
imposes an ill
ent,ence upon Ladriere, it is cixiorrlatic that the result would
have been different. but, for the error .
II. While the Final Judgment Appropriately Subjected Ladriere to
Lifetime Registration and Accompanying Residency Requirements,
Imposition of the Felony Conditional Discharge Period and
Accompanying Conditions as well as Orders to Submit to HIV Testing
and to Complete SOTP Were Not Authorized By Statute.
As stated above, Ladriere pled guilty to kidnappin under KRS 509 .040.
As explained in the indictment, the victim of the offense was a minor. KRS
17 .510 establishes a registration system for sexual offenders and for those who
have committed crimes against minors . A "sexual offender" is a person who is
convicted of or pleads guilty to a "sox crime," as defined in KRS 17 .500(8) .
Kidnapping, even where the victim is a minor, doers not fall within the statutory
definition of a "sex crime ." However, kidnapping under KRS 509 .040 is
explicitly included in the definition of a "criminal offense against a victim who
is a minor," if the victim is under the age of eighteen . KRS 17 .500(3)(x)(1) .
Because the definition of "registrant" in KRS 17.500(5) includes not only sexual
offenders but also "[alny person eighteen (18) years of age or older at the time
of the offense . . . who has committed . . . [al criminal offense against a victim
who is a minor," Ladriere is clearly a "registrant." In fact, Ladriere is subject to
lifetime registration for this offense pursuant to KRS 17 .520(2)(a)(1) . And,
because KRS 17 .545 1 places residential restrictions on all "registrants," there is
KRS 17.545 prohibits registrants from residing within 1000 yards of schools,
playgrounds and licensed day care facilities.
no error in that portio
of the trial court's order imp(.~sin.g the statutory
residency restrictions on
driere .
Ladriere's contention that he s ould not, have to re ,_Yister "as a sexual
offender" is baseless . He asserts an unfair prejudice in having to reveal to
potential employers, landlords, and others, his status as a "sexual offender
registrant" as opposed to a mere "registrant" even though he did not commit a
sexual offense as (defined by the relevant statute . He a.rgu.e s that to the extent
the Department of Corrections forces all registrants to be called sex offenders,
it is an incorrect statement of the offender's legal status if, instead, the offender
has committed a crime against a victim who is a minor. As the Commonwealth
points out, there is absolutely nothing in the record to support that the
Department of Corrections does force all registrants to be called sex offenders .
Regardless, the Justice and Public Safety Cabinet is charged with, the
development and implementation of the registration system, KRS 17 .510, and
the general Assembly has legislated the inclusion of offenders such as La.driere
who commit "a criminal offense against a victim who is a minor." KIRS
17.500(5) .
Additionally, Ladriere contends that the statutory period of conditional
discharge and accompanying conditions imposed by the trial court are only
authorized for those who are required to register by virtue of their status as a
"sexual offender" as opposed to those who are required to register because they
committed a criminal offense against a minor. KRS 532 .043 mandates that a
five-year conditional discharge period be imposed upon certain offenders;
namely, those convicted of or pleading guilty to "a, felony offense under KRS
Chapter 51.0, 529 .100 involving commercial sexual activity, 530.020,
530 .064(l)(a), 531 .310, or 531 .320 .' These oWnses enco
ass 11 of the
violations that constitute a "sex crime" under KRS 17 .5()0(8) but also include
one other - a.. felony- offense under KRS 529.100 involving commercial sexual
activity . Significantly, a "criminal offense against a victim who is a minor" is
not mentioned in JKRS 532 .043, nor is an offense under KRS 509 .040 included
in the statute . Accordingly, Ladriere is correct that KRS 532 .043 does notauthorize a conditional discharge period to be imposed in his case .
KRS 17 .520 provides that the commission of certain offenses subjects
the offender to registration requirements for a period of twenty years while
other offenses subject the offender to lifetime registration . Ladriere's offense
explicitly subjects him to lifetime registration, indicating that the legislature
considered this offense to be of an even more serious nature than certain sex
offenses, at least with respect to the necessity of registration . Accordingly-, it
seems counterintuitive that an offense requiring a longer registration period
would be excluded from the statutory conditional discharge period and
accompanying conditions that accompany some sex offenses even though these
offenses also entail a shorter registration period. Nevertheless, "where the
language of eL statute is clear and unambiguous on its face, we are not free to
construe it otherwise even though such construction might be more in keeping
with the statute's apparent purpose ." MPM Financial Group, Inc. v. Morton, 289
S .W .3d 193, 197 (Ky. 2009) (citing Whittaker v. McClure, 891 S .W.2d 80, 83
(Ky. 1995)) . KRS 532 .043 specifically enumerates the offenses, that. warrant
imposition of the conditional discharge period and, as noted, Ladriere's offense
is not among them .
For the same reasons, ordering Ladriere to complete a Sex Offender
Treatment Program (SOTP) was not statutorily authorized. SOTP is a treatment
program for sexual offenders . Participation in the program may be ordered
when the sentencing court, department officials, or both determine that a
sexual offender may have a mental, emotional, or behavioral disorder and is
likely to benefit from the program. KISS 197 .010(4) . However, "sexual offender"
as used in KIRS Chapter 197 is a person who has committed a "sex crime" as
defined by KRS 17 .500 . KRS 1-97 .410(l) . Given that Ladriere did not commit
an offense within the purview of the statute's definition of "sex crime," it stands
to reason that he is not a "sexual offender" Or purposes of the SOTP provisions
either .
As to the non-statutory conditions imposed -upon Ladriere, such. as the
no-contact with minors order, prohibition on possession of sexually arousing
materials, employment restrictions and restrictions on establishing romantic
relationships, these were imposed as conditions of the "conditional discharge"
period . Having determined that Ladriere was not subject to a period of
conditional discharge, the conditions established relative to that period must
fall as well.
Finally, the trial court ordered Ladriere to be tested for HIV pursuant to
KRS 510 .320 . However, the statute mandates that the sentencing court order
HIV testing when the offender was convicts-~d of certain otferises under KRS
Chapter 510 that involve sexual intercourse, deviate sexual intercourse or
sexual contact. Ladriere's offense does not fall within Chapter 510 and,
therefore, is not encompassed by the statute concerning HIV tasting .
gain,
the trial court's order in this regard. i s contrary to the statute and must be
vacated.
III. The Trial Court Erred in Imposing Court Costs on Ladriere Given His
Indigent Status.
Ladriere also asserts error in the imposition of court costs upon him
despite his indigent status, an issue preserved by contemporaneous objection .
The Commonwealth responds that although the trial court imposed court costs
in its oral ruling, it was not memorialized in the written judgment, rendering
the issue moot . Although the oral ruling must be consulted to discern that the
"cost of the action," is $150 .00, the written judgment does direct Ladriere to
"pay the sum of $125.00 to the public advocates for their services herein and
the cost of this action, same to be payable at the minimum rate of u550 per
month commencing 30 days after release from custody." Accordingly, we
proceed to the merits of Ladriere's claim . Because court costs must be waived
for indigent defendants pursuant to KRS 31 .110(1) (b), the provision in the
judgment imposing court costs must be vacated. Edmonson v. Commonwealth,
725 S.W .2d 595 (Ky. 1987) . The Commonwealth correctly points out that the
$125.00 public defender fee is explicitly authorized by KRS 31 .211(1), but
Ladriere's challenge is to the imposition of court costs, not the public defender
fee .
CONCLUSION
While the judgment of th trial court appropriately ordure Ladriere to
lifetime registration in the registration systern for adults who have committed
sex crimes or crimes against Minors
id appropriately imposed the
accompanying residency restrictions, that portion of the judgment, that. imposes
a five-year conditional discharge period and accompanying conditions as well
as the provisions ordering Ladriere to complete SOTP and submit to HIV testaig
must be vacated as they are not authorized by statute . The provision directing
Ladriere to pay court costs must also be vacated due to his 1, digent status.
Accordingly, the trial court's judgment is vacated and this cause is remanded
for entry of a final judgment consistent with this opinion.
Minton, C.J . ; Cunningham, Noble, Scott, and Venters, JJ ., concur.
Schroder, J., not sitting.
COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt
Department of Public Advocacy
Appeals Branch Manager
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-1109
COUNSEL FOR APPELLEE :
Jack. Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601
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