Dever v. Commonwealth

300 S.W.3d 198, 2009 Ky. App. LEXIS 1, 2009 WL 50164
CourtCourt of Appeals of Kentucky
DecidedJanuary 9, 2009
Docket2007-CA-000932-MR
StatusPublished
Cited by6 cases

This text of 300 S.W.3d 198 (Dever 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
Dever v. Commonwealth, 300 S.W.3d 198, 2009 Ky. App. LEXIS 1, 2009 WL 50164 (Ky. Ct. App. 2009).

Opinions

OPINION

CLAYTON, Judge.

Bryan Dever has appealed from the Jefferson Circuit Court’s ruling in its April 7, 2007, amended judgment requiring him to register for lifetime as a sexual offender. After careful review of the record and the applicable law, we reverse the amended judgment and remand.

On September 18, 2002, then fifteen-year-old Dever was accused by information with four counts of first-degree sodomy and with two counts of first-degree sexual abuse. These accusations stemmed from Dever’s actions against his two young nieces that took place between May 2001 and May 2002. The information specifically reads:

COUNT ONE
That between May 23, 2001 to May 31, 2002, in Jefferson County, Kentucky, the above named defendant, BRYAN A. DEVER, committed the offense of Sodomy in the First Degree by engaging in deviate anal sexual intercourse with his 7 year old niece, a person less than twelve years of age.
[200]*200 COUNT TWO
That between May 23, 2001 to May 31, 2002, in Jefferson County, Kentucky, the above named defendant, BRYAN A. DEVER, committed the offense of Sodomy in the First Degree by engaging in deviate oral sexual intercourse with his 7 year old niece, a person less than twelve years of age.
COUNT THREE
That between May 23, 2001 to May 31, 2002, in Jefferson County, Kentucky, the above named defendant, BRYAN A. DEVER, committed the offense of Sodomy in the First Degree by engaging in deviate anal sexual intercourse with his 6 year old niece, a person less than twelve years of age.
COUNT FOUR
That between May 23, 2001 to May 31, 2002, in Jefferson County, Kentucky, the above named defendant, BRYAN A. DEVER, committed the offense of Sodomy in the First Degree by engaging in deviate oral sexual intercourse with his 6 year old niece, a person less than twelve years of age.
COUNT FIVE
That between May 23, 2001 to May 31, 2002, in Jefferson County, Kentucky, the above named defendant, BRYAN A. DEVER, committed the offense of Sexual Abuse in the First Degree by subjecting his 7 year old niece, to sexual contact through the use of forcible compulsion.
COUNT SIX
That between May 23, 2001 to May 31, 2002, in Jefferson County, Kentucky, the above named defendant, BRYAN A. DEVER, committed the offense of Sexual Abuse in the First Degree by subjecting [his] 6 year old niece, to sexual contact through the use of forcible compulsion.

A trial was eventually scheduled for July 7, 2004. However, that day the parties argued various pretrial motions and appeared the next morning having reached a plea agreement. Under the terms of the agreement, Dever would plead guilty to two counts of first-degree sexual abuse, with recommended sentences of five years for each count to run consecutively for a total of ten years. The remaining charges would then be dismissed at the time of sentencing. The facts supporting his conviction were stated in the Commonwealth’s offer on a plea of guilty as follows: “Between May 23, 2001 and April 2002, in Jefferson County Ky the defendant had unlawful sexual contact with his two underage neices [sic].” During the hearing, the parties and the circuit court discussed that the agreement encompassed amending one of the sodomy counts to sexual abuse. The circuit court accepted the plea and entered an Order on Plea of Guilty on July 20, 2004. The order included a summary of the plea agreement as follows:

• SODOMY IN THE FIRST DEGREE (4 COUNTS) — DISMISSED
• SEXUAL ABUSE IN THE FIRST DEGREE (2 COUNTS)

A sentencing hearing was then scheduled for September 27, 2004, following Dever’s eighteenth birthday. At the hearing, the circuit court found Dever guilty of two counts of first-degree sexual abuse and dismissed all of the first-degree sodomy charges. The circuit court then sentenced Dever to two consecutive five-year sentences for the sexual abuse convictions, but probated the sentence for five years with several conditions.

[201]*201In accordance with its ruling, the circuit court entered a judgment of sentence of probation on October 5, 2004. In the judgment, the circuit court also sentenced Dever to a three-year period of conditional discharge after service of his probation and ordered him to register as a sex offender for his lifetime pursuant to Kentucky Revised Statutes (KRS) 17.520.

Dever filed a motion to correct the judgment on October 15, 2004, raising two claims of error. First, Dever argued that the circuit court should not have ordered the three-year period of conditional discharge, as it sentenced Dever to a period of probation rather than incarceration. Second, Dever argued that he did not meet any of the requirements for lifetime registration under KRS 17.520(2)(a)3 or 4, as he did not have any prior criminal convictions against a minor or any prior sex crime convictions, nor had he been convicted of two or more criminal offenses against a minor victim. Furthermore, Dever argued that because he was under the age of eighteen at the time of the offenses and the crimes were based on the age of the victims, he was exempted from the lifetime registration requirement based on the exception to the definition of “criminal offense against a victim who is a minor” contained in KRS 17.500(3)(a). Dever specifically argued that the sexual abuse charges were based on the age of the victims and that the facts did not indicate that those charges were the result of forcible compulsion.

Following a hearing, the circuit court entered an amended judgment on April 7, 2005, that included a finding that the three-year period of conditional discharge did not apply in this case, as Dever’s sentence was probated. However, the circuit court did not amend its lifetime registration requirement. In support of this decision, the circuit court stated as follows: “The Court’s finding that the defendant is a lifetime registrant is based upon the determination that a conviction for two (2) counts of sexual abuse in the first degree meets the criteria for lifetime registration under KRS 17.520(2)(a)4.” This appeal followed.1

On appeal, Dever argues that the circuit court erred in imposing a lifetime registration requirement on him, rather than only requiring him to register for twenty years.2 The issue as he presents it is whether his conduct was criminal only because of the age of the victims, which would exempt him from the lifetime registration requirement. He focuses on the plea discussion, in which the parties agreed that one of the sodomy counts (which was based on the victim’s age) would be amended to first-degree sexual abuse, which would have removed him [202]*202from the lifetime registration requirement.

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Dever v. Commonwealth
300 S.W.3d 198 (Court of Appeals of Kentucky, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
300 S.W.3d 198, 2009 Ky. App. LEXIS 1, 2009 WL 50164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dever-v-commonwealth-kyctapp-2009.