RENDERED: DECEMBER 17, 2020 TO BE PUBLISHED
Supreme Court of Kentucky 2019-SC-0248-DG
COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NO. 2018-CA-0061 KENTON CIRCUIT COURT NO. 15-CR-01000
KEITH JENNINGS APPELLEE
OPINION OF THE COURT BY JUSTICE NICKELL
REVERSING
The Kentucky Court of Appeals vacated and remanded the Kenton
Circuit Court’s denial of Keith Jennings’ motion to modify the terms of his
probation to remove a restriction prohibiting him from having any access to the
internet during his probationary period. Relying on the recent decision of the
United States Supreme Court in Packingham v. North Carolina, 137 S.Ct. 1730
(2017), which invalidated—on First Amendment grounds—a statute prohibiting
registered sex offenders from accessing certain commercial social media
websites, the Court of Appeals concluded the complete ban on internet access
under the particular facts was impermissibly vague and overly burdensome on
Jennings’ free speech rights. We granted the Commonwealth’s motion for discretionary review. Having reviewed the record and arguments of the parties,
we reverse the Court of Appeals due to lack of a timely objection by Jennings.
Jennings was required to register as a sex offender after pleading guilty
in 2004 in Jefferson County, Kentucky, to a felony charge of distributing
matter portraying a sexual performance by a minor and a misdemeanor charge
of attempting to use a minor in a sexual performance. He was indicted in 2015
by a Kenton County grand jury for failing to comply with sex offender
registration requirements. Jennings entered a guilty plea to a felony count of
failing to comply with the Kentucky Sex Offender Registration Act (KSORA) and
being a persistent felony offender in the first degree. His seven-and-a-half-year
sentence was probated for a period of five years. Relevant to this appeal, as
conditions of probation, Jennings was to commit no further offenses and have
“no access to the internet.” Approximately one month later, the trial court
granted Jennings’ motion to modify two terms of his probation related to the
length of his registration period and contact with minor children.
Less than four months later, Jennings was charged in Jefferson County
for failing to comply with KSORA’s restrictions on accessing online social media
sites. The Commonwealth’s Attorney in Kenton County sought to revoke
Jennings’ probation based on the new criminal charge as well as his violation
of the express probation condition that he not access the internet. While the
revocation proceedings were pending, the United States Supreme Court
rendered Packingham,1 leading Jefferson County prosecutors to drop the
1 In Doe v. Commonwealth, ex rel. Tilley, 283 F.Supp.3d 608 (E.D.Ky. 2017), a federal court enjoined the Commonwealth from enforcing then-existing statutory 2 charges pending against Jennings in that county. Following a revocation
hearing at which the Commonwealth chose to proceed only on the basis of
Jennings having accessed the internet, the trial court declined to revoke
Jennings’ probation but did find he had violated the terms thereof and that
those terms did not violate Jennings’ First Amendment rights. The trial court
sanctioned Jennings with a penalty of four months’ incarceration—
representing the time served while he was in jail awaiting the revocation
proceedings.
Jennings appealed to the Court of Appeals which vacated and remanded
the matter for further proceedings. The Court of Appeals undertook an in-
depth analysis of KSORA’s provisions related to restrictions on internet use
and how they have been amended in the wake of Packingham and Tilley. The
Court concluded the issue relating to restrictions for those defendants who had
served their sentences and were no longer under supervision was settled by
Packingham, but remained an open question for those, like Jennings, who were
still under active supervision. Noting a variation among jurisdictions regarding
permissibility of internet restrictions for sex offenders who were on active
supervision, the Court of Appeals then looked at Jennings’ restrictions to
determine whether they passed constitutional muster.
provisions prohibiting internet usage by registered sex offenders upon concluding they were substantially similar to the statutes held unconstitutional in Packingham. In response, the General Assembly made significant changes to the statute during its next session.
3 After setting forth the appropriate standards, the Court of Appeals
concluded the trial court erred in imposing a complete ban on internet access
because such a restriction was not narrowly tailored, burdened more First
Amendment rights than necessary to further the government’s interests, and
did not increase public safety. Further, the Court found Jennings’ original
crime did not appear to involve the internet, nor did his current offense of
KSORA noncompliance. Finally, the Court of Appeals stated the restriction
banned “access” to the internet rather than “use” but the trial court did not
indicate whether Jennings would be permitted to visit any location that had
internet-capable devices, which would include private homes, places of
employment, public libraries, hotels, and many retail businesses, or whether
he could own a device which had the ability to access the internet even if he
did not use it for that purpose. As such, the restriction was deemed
unconstitutionally vague. While declining to establish a bright-line rule, the
Court of Appeals noted complete internet bans may be appropriate in some
cases but held Jennings’ case did not qualify for such draconian restrictions.
We agree with the Court of Appeals’ position that complete bans on
internet use may, in certain extraordinary cases, pass constitutional muster.
However, limited, focused, and rationally-related restrictions are more typically
required. Though once a luxury, the modern internet is a practical necessity
for many aspects of life including banking, shopping, education, job searches,
obtaining unemployment benefits, keeping abreast of current events, and even
finding a telephone number. Because the internet’s integration with all aspects
of modern society and business has become so pervasive, the United States
4 Supreme Court has characterized the internet as “the modern public square”
while acknowledging it is “integral to the fabric of our modern society and
culture.” Packingham, 137 S.Ct. at 1737-38. Thus, trial courts—although
vested with broad discretion in whether to grant probation and on what
terms—should proceed cautiously and with specificity when choosing to limit
access to such a significant resource. Complete bans should be exceedingly
rare.
However, in the present appeal, we need not reach the question of
whether the complete ban on Jennings’ internet access was appropriate
because he failed to timely contest the allegedly offending probation restriction.
At sentencing, the trial court orally ruled it would include the total internet ban
as a condition of Jennings’ probation and did so in its formal written
sentencing order. Jennings did not appeal the probation order, did not object
to inclusion of the restriction prohibiting internet access, and did not otherwise
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RENDERED: DECEMBER 17, 2020 TO BE PUBLISHED
Supreme Court of Kentucky 2019-SC-0248-DG
COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NO. 2018-CA-0061 KENTON CIRCUIT COURT NO. 15-CR-01000
KEITH JENNINGS APPELLEE
OPINION OF THE COURT BY JUSTICE NICKELL
REVERSING
The Kentucky Court of Appeals vacated and remanded the Kenton
Circuit Court’s denial of Keith Jennings’ motion to modify the terms of his
probation to remove a restriction prohibiting him from having any access to the
internet during his probationary period. Relying on the recent decision of the
United States Supreme Court in Packingham v. North Carolina, 137 S.Ct. 1730
(2017), which invalidated—on First Amendment grounds—a statute prohibiting
registered sex offenders from accessing certain commercial social media
websites, the Court of Appeals concluded the complete ban on internet access
under the particular facts was impermissibly vague and overly burdensome on
Jennings’ free speech rights. We granted the Commonwealth’s motion for discretionary review. Having reviewed the record and arguments of the parties,
we reverse the Court of Appeals due to lack of a timely objection by Jennings.
Jennings was required to register as a sex offender after pleading guilty
in 2004 in Jefferson County, Kentucky, to a felony charge of distributing
matter portraying a sexual performance by a minor and a misdemeanor charge
of attempting to use a minor in a sexual performance. He was indicted in 2015
by a Kenton County grand jury for failing to comply with sex offender
registration requirements. Jennings entered a guilty plea to a felony count of
failing to comply with the Kentucky Sex Offender Registration Act (KSORA) and
being a persistent felony offender in the first degree. His seven-and-a-half-year
sentence was probated for a period of five years. Relevant to this appeal, as
conditions of probation, Jennings was to commit no further offenses and have
“no access to the internet.” Approximately one month later, the trial court
granted Jennings’ motion to modify two terms of his probation related to the
length of his registration period and contact with minor children.
Less than four months later, Jennings was charged in Jefferson County
for failing to comply with KSORA’s restrictions on accessing online social media
sites. The Commonwealth’s Attorney in Kenton County sought to revoke
Jennings’ probation based on the new criminal charge as well as his violation
of the express probation condition that he not access the internet. While the
revocation proceedings were pending, the United States Supreme Court
rendered Packingham,1 leading Jefferson County prosecutors to drop the
1 In Doe v. Commonwealth, ex rel. Tilley, 283 F.Supp.3d 608 (E.D.Ky. 2017), a federal court enjoined the Commonwealth from enforcing then-existing statutory 2 charges pending against Jennings in that county. Following a revocation
hearing at which the Commonwealth chose to proceed only on the basis of
Jennings having accessed the internet, the trial court declined to revoke
Jennings’ probation but did find he had violated the terms thereof and that
those terms did not violate Jennings’ First Amendment rights. The trial court
sanctioned Jennings with a penalty of four months’ incarceration—
representing the time served while he was in jail awaiting the revocation
proceedings.
Jennings appealed to the Court of Appeals which vacated and remanded
the matter for further proceedings. The Court of Appeals undertook an in-
depth analysis of KSORA’s provisions related to restrictions on internet use
and how they have been amended in the wake of Packingham and Tilley. The
Court concluded the issue relating to restrictions for those defendants who had
served their sentences and were no longer under supervision was settled by
Packingham, but remained an open question for those, like Jennings, who were
still under active supervision. Noting a variation among jurisdictions regarding
permissibility of internet restrictions for sex offenders who were on active
supervision, the Court of Appeals then looked at Jennings’ restrictions to
determine whether they passed constitutional muster.
provisions prohibiting internet usage by registered sex offenders upon concluding they were substantially similar to the statutes held unconstitutional in Packingham. In response, the General Assembly made significant changes to the statute during its next session.
3 After setting forth the appropriate standards, the Court of Appeals
concluded the trial court erred in imposing a complete ban on internet access
because such a restriction was not narrowly tailored, burdened more First
Amendment rights than necessary to further the government’s interests, and
did not increase public safety. Further, the Court found Jennings’ original
crime did not appear to involve the internet, nor did his current offense of
KSORA noncompliance. Finally, the Court of Appeals stated the restriction
banned “access” to the internet rather than “use” but the trial court did not
indicate whether Jennings would be permitted to visit any location that had
internet-capable devices, which would include private homes, places of
employment, public libraries, hotels, and many retail businesses, or whether
he could own a device which had the ability to access the internet even if he
did not use it for that purpose. As such, the restriction was deemed
unconstitutionally vague. While declining to establish a bright-line rule, the
Court of Appeals noted complete internet bans may be appropriate in some
cases but held Jennings’ case did not qualify for such draconian restrictions.
We agree with the Court of Appeals’ position that complete bans on
internet use may, in certain extraordinary cases, pass constitutional muster.
However, limited, focused, and rationally-related restrictions are more typically
required. Though once a luxury, the modern internet is a practical necessity
for many aspects of life including banking, shopping, education, job searches,
obtaining unemployment benefits, keeping abreast of current events, and even
finding a telephone number. Because the internet’s integration with all aspects
of modern society and business has become so pervasive, the United States
4 Supreme Court has characterized the internet as “the modern public square”
while acknowledging it is “integral to the fabric of our modern society and
culture.” Packingham, 137 S.Ct. at 1737-38. Thus, trial courts—although
vested with broad discretion in whether to grant probation and on what
terms—should proceed cautiously and with specificity when choosing to limit
access to such a significant resource. Complete bans should be exceedingly
rare.
However, in the present appeal, we need not reach the question of
whether the complete ban on Jennings’ internet access was appropriate
because he failed to timely contest the allegedly offending probation restriction.
At sentencing, the trial court orally ruled it would include the total internet ban
as a condition of Jennings’ probation and did so in its formal written
sentencing order. Jennings did not appeal the probation order, did not object
to inclusion of the restriction prohibiting internet access, and did not otherwise
seek to modify that condition although he did challenge other terms of the
probationary order. It was not until after he had violated the internet
restriction that he raised any challenge.
“In this Commonwealth, ‘probation is a privilege rather than a right. One
may retain his status as a probationer only as long as the trial court is satisfied
that he has not violated the terms or conditions of the probation.’” Sullivan v.
Commonwealth, 476 S.W.3d 260, 263 (Ky. App. 2015) (quoting Barker v.
Commonwealth, 379 S.W.3d 116, 122 (Ky. 2012) (internal quotations and
citation omitted)). “[A]lthough probation of a sentence may be a benefit
conferred upon a convicted criminal for an invalid reason, the order of
5 probation is separable from the conviction itself and the judgment entered
thereon. The fact that the probationary order is void does not render the
conviction and the judgment void.” Weigand v. Commonwealth, 397 S.W.2d
780, 781 (Ky. 1965) (citations omitted). A probationer is required to challenge
the offending provision at the time it is imposed. Butler v. Commonwealth, 304
S.W.3d 78, 80 (Ky. App. 2010) (citing Weigand, 397 S.W.2d at 781).
Here, Jennings does not challenge his conviction but merely contends
the trial court’s total ban on internet access was improper. However, by
accepting the probation, Jennings evaded serving a lengthy jail sentence, only
to face sanctions when he promptly violated its terms. Jennings’ failure to
challenge the probation restriction prohibiting all access to the internet at the
time it was imposed is fatal to his current request for relief. Id. The trial
court’s imposition of a four-month jail sentence as a sanction for Jennings’
intentional violation of his probation restriction did not violate his
constitutional rights. The Court of Appeals should not have entertained the
untimely challenge, and its decision on the merits was therefore in error.
For the foregoing reasons, the decision of the Court of Appeals is
reversed.
All sitting. All concur.
6 COUNSEL FOR APPELLANT:
Daniel J. Cameron Attorney General of Kentucky
Stephen Chad Meredith James Coleman Shackleford Assistant Attorney General
COUNSEL FOR APPELLEE:
Shannon Renee Dupree Assistant Public Advocate