Brady v. Commonwealth

396 S.W.3d 315, 2013 Ky. App. LEXIS 46, 2013 WL 844540
CourtCourt of Appeals of Kentucky
DecidedMarch 8, 2013
DocketNo. 2011-CA-001639-MR
StatusPublished
Cited by3 cases

This text of 396 S.W.3d 315 (Brady v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brady v. Commonwealth, 396 S.W.3d 315, 2013 Ky. App. LEXIS 46, 2013 WL 844540 (Ky. Ct. App. 2013).

Opinion

OPINION

MAZE, Judge:

Appellant, Dustin Brady (hereinafter “Brady”), appeals his sentence which the Nelson Circuit Court imposed following his plea of guilty to two counts of sexual abuse in the first degree. Upon our review of the record, we find that the trial court did not err in imposing the sentence in question. We therefore affirm.

Background

On August 4, 2010, a Nelson County grand jury indicted Brady on two counts of sodomy in the first degree involving a victim under the age of twelve. The police report stated details of the two events which gave rise to the allegations. The report stated that the victim was unsure when the first instance of abuse occurred, but that it was “sometime between 2005 and 2006.” The victim stated that the second instance occurred while his parents were vacationing in New York City over New Years 2006-2007. Based on the child’s allegations and the resulting investigation, the indictment listed the date of the first count as “sometime between 2005 and 2006” and the date of the second count as “sometime in 2007.” These dates indicated that Brady was between the ages of fifteen and seventeen at the time of the abuse.

The trial court arraigned Brady on September 2, 2010, and set a trial date of June 8, 2011. In the interim, plea negotiations were ongoing between Brady and the Commonwealth. On June 1, 2011, in response to Brady’s request for a Bill of Particulars, the Commonwealth submitted its rendition of the facts of the case which included dates for the alleged crimes which were consistent with those given in the police report and indictments. This response further specified that the date of the second count was “sometime between the 29th day of December, 2006 and the 1st day of January, 2007.”

The Commonwealth subsequently submitted its written offer on Brady’s plea of guilty, offering to amend both counts of sodomy to two counts of sexual abuse in the first degree and recommending two five-year prison sentences to run concurrently. The Commonwealth further recommended that Brady be required to register as a sex offender for the remainder of his life and that he be subjected to five years’ post-incarceration supervision upon his release from confinement. On June 6, [317]*3172011, Brady signed the agreement as offered by the Commonwealth and moved the court to amend his plea to “guilty.” After reading the counts and dates provided in the indictments and the recommendations of the plea offer, as well as reminding Brady of his right to a trial, the trial court accepted Brady’s guilty plea. The trial court set a sentencing hearing for the following August.

On July 12, 2011, Brady filed a motion requesting that the trial court sentence him according to KRS 532.043 as it was written prior to revisions which took effect in July 2006. Brady’s motion argued that both counts of the indictment arose from events which occurred in 2005 and, therefore, the prior punishment provisions, requiring only a three-year period of post-incarceration supervision, applied to Brady. The revised sentencing requirements of KRS 532.043 imposed a mandatory five-year period of post-incarceration supervision following release.

At the sentencing hearing, after brief argument by the parties regarding Brady’s motion, the trial court denied the motion, citing the retroactive nature of KRS 532.043, both prior to 2006 and as amended. Pursuant to the plea agreement, the trial court sentenced Brady to five years’ imprisonment, required Brady to register as a sex offender for life and to be subject to five years’ post-incarceration supervision. Brady’s appeal of his sentence of post-incarceration supervision follows.

Standard of Review

We first review the trial court’s findings of fact under the substantial evidence standard. See Commonwealth v. Harrelson, 14 S.W.3d 541 (Ky.2000); Morton v. Commonwealth, 232 S.W.3d 566, 568 (Ky.App.2007). Thus, we will disturb the trial court’s decision only “if it is not supported by substantial evidence, which is evidence sufficient to induce conviction in the mind of a reasonable person.” Sherfey v. Sherfey, 74 S.W.3d 777, 782 (KyApp. 2002). Additionally, as Brady’s guilty plea did not waive the jurisdictional issue of his sentence, we then conduct a de novo review of the trial court’s application of the law to the established facts to determine whether its sentence was correct as a matter of law. Morton at 568-69. We therefore afford no deference to the trial court’s application of the law to the established facts. Id. (citing to Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky.App.1998)).

Analysis

Article I, Section 9 of the United States Constitution and Section 19 of the Kentucky Constitution prohibit the enactment of an ex post facto law.1 The Supreme Courts of the United States and Kentucky have established that, to constitute an impermissible ex post facto law, a law must satisfy two dispositive elements. The conduct alleged to have violated the law must have occurred prior to the enactment of the law in question; and the law must disadvantage the person affected by it. See Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); see also Purvis v. Commonwealth, 14 S.W.3d 21 (Ky.2000). A law satisfies the first element of this test if it “changes the legal consequences of acts completed before its effective date.” Weaver at 31, 101 S.Ct. 960.

[318]*318KRS 532.043, as amended in July 2006, states, in relevant part,

1) In addition to the penalties authorized by law, any person convicted of, pleading guilty to, or entering an Alford plea to a felony offense under KRS Chapter 510 ... shall be subject to a period of postincarceration supervision following release from:
(a) Incarceration upon expiration of sentence; or
(b) Completion of parole.
2) The period of postincarceration supervision shall be five (5) years.
3) During the period of postincarceration supervision, the defendant shall:
(a) Be subject to all orders specified by the Department of Corrections; and
(b) Comply with all education, treatment, testing, or combination thereof required by the Department of Corrections.
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6) The provisions of this section shall apply only to persons convicted, pleading guilty, or entering an Alford plea after July 15,1998.

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396 S.W.3d 315, 2013 Ky. App. LEXIS 46, 2013 WL 844540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brady-v-commonwealth-kyctapp-2013.