APPEAL FROM NELSON CIRCUIT COURT HONORABLE JOHN DAVID SEAY, JUDGE ACTION NO. 10-CR-00260
The opinion of the court was delivered by: Maze, Judge:
RENDERED: MARCH 8, 2013; 10:00 A.M.
BEFORE: MAZE, STUMBO AND THOMPSON, JUDGES.
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.
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, 2011, 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' ...