Tobar v. Commonwealth

284 S.W.3d 133, 2009 Ky. LEXIS 81, 2009 WL 1439833
CourtKentucky Supreme Court
DecidedMay 21, 2009
Docket2007-SC-000842-DG
StatusPublished
Cited by8 cases

This text of 284 S.W.3d 133 (Tobar v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tobar v. Commonwealth, 284 S.W.3d 133, 2009 Ky. LEXIS 81, 2009 WL 1439833 (Ky. 2009).

Opinions

Opinion of the Court by

Justice VENTERS.

Appellant, Terry Tobar, entered a conditional guilty plea to the offense of failure to comply with sex offender registration, KRS 17.510(10)(a), and was sentenced to a term of one year imprisonment, probated for five years. The Court of Appeals rejected his claim that the version of KRS 17.510 in effect when he pled guilty to this crime was unconstitutionally vague as applied to him. We granted discretionary review, and now affirm the Court of Appeals.

RELEVANT FACTS

Having been convicted of a sexual offense in the state of Ohio, Appellant duly registered as a sex offender under Kentucky’s Sexual Offender Registration Act, KRS 17.500, et seq., when he moved to his mother’s house in Fayette County. He subsequently vacated those premises under the terms of a domestic violence order, and moved to the Hope Center, also located in Fayette County. In conformance with KRS 17.510(10)(a), he promptly notified his probation and parole officer of his address change. Unfortunately, Appellant was expelled from the Hope Center because it has a policy against housing registered sex offenders. Evidence then indicates Appellant became homeless.1 He failed to report to the proper authorities that he was no longer living at the Hope Center, and did not otherwise inform his probation officer of his relocation. He was subsequently indicted for violating KRS 17.510(10)(a).

Appellant moved to dismiss the indictment, arguing that the statute was unconstitutionally vague as applied to him because he was homeless when charged and therefore unable to register a change in address. Finding KRS 17.510(10)(a) constitutional, the trial court denied Appellant’s motion, and allowed him to enter a conditional guilty plea, reserving the constitutional question for appeal.

The Court of Appeals affirmed Appellant’s conviction finding that KRS 17.510(10)(a) was not void for vagueness as applied to him by emphasizing the importance of the term “change” as used in the statute. The Court of Appeals held that KRS 17.510(10)(a) did not criminalize homelessness, but focused on requiring the sex offender to report any change in residence address. Thus, the fact that Appellant became homeless was irrelevant to the statute’s application. What was important was the fact that Appellant’s residence address changed when he left the Hope Center.

KRS 17.510(10)(a) IS NOT VOID FOR VAGUENESS AS APPLIED TO APPELLANT

Appellant’s argument is that KRS 17.510 is unconstitutionally vague as applied to him and other similarly situated homeless persons because a homeless person cannot possibly comply with the requirement to report a change in their “residence address.” Appellant argues that a homeless person by definition has no “residence” or “address.” Furthering his argument, Appellant cites to the fact that residence was not defined in the Sex Offender [135]*135Registration Act in effect at the time of this case2 and thus he believes the term is vague. Appellant cites to several portions of the Sexual Offender Registration Act to show how having an actual residence or address is necessary to comply with KRS 17.510. However, Appellant was effectively charged with violating only KRS 17.510(10)(a). Thus, we will only consider whether KRS 17.510(10)(a) is void for vagueness as applied to Appellant. KRS 17.510(10)(a) states:

If the residence address of any registrant changes, but the registrant remains in the same county, the person shall register, on or before the date of the change of address, with the appropriate local probation and parole office in the county in which he or she resides.

A statute is vague if “men of common intelligence must necessarily guess at its meaning.” State Bd. For Elementary and Secondary Educ. v. Howard, 834 S.W.2d 657, 662 (Ky.1992) (citing Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). To satisfy the void for vagueness doctrine a statute must: 1) provide fair notice to those targeted by the statute, “by containing sufficient definiteness so that ordinary people can understand what conduct is prohibited” and 2) it must have been drafted in such a way to discourage arbitrary and discriminatory enforcement. Wilfong v. Commonwealth, 175 S.W.3d 84, 95 (Ky. App.2004). A statute is unconstitutionally vague if those individuals who are affected by it cannot reasonably understand what the statute requires. Gurnee v. Lexington-Fayette Urban County Government, 6 S.W.3d 852, 856 (Ky.App.1999).

A review of KRS 17.510(10)(a) indicates that it is not void for vagueness as applied to Appellant. KRS 17.510 is designed to fulfill a public purpose by tracking where sex offenders live. The key to fulfilling this purpose is making sure that registered sex offenders report to the proper authorities whenever they change their residence address. We agree with the Court of Appeals that the focus of KRS 17.510(10)(a) is not that the sex offender have an address, but that any change in address be reported to the proper authorities. The clear language of the statute supports such a conclusion. KRS 17.510(10)(a) clearly provides “[i]f the residence address of any registrant changes, but the registrant remains in the same county, the person shall

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Tobar v. Commonwealth
284 S.W.3d 133 (Kentucky Supreme Court, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
284 S.W.3d 133, 2009 Ky. LEXIS 81, 2009 WL 1439833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tobar-v-commonwealth-ky-2009.