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Commonwealth v. Thompson

Supreme Court of Kentucky

June 14, 2018



          COUNSEL FOR APPELLANT: Andy Beshear Attorney General of Kentucky . Kenneth Wayne Riggs Mark Daniel Barry-Assistant Attorney General Office of Criminal Appeals

          COUNSEL FOR APPELLEE: Robert C. Bishop



         In October 2011, Kyle D. Thompson pled guilty to second-degree terroristic threatening, criminal attempt to commit kidnapping, unlawful possession of a weapon on school property, third-degree terroristic threatening, carrying a concealed deadly weapon, and possession of marijuana. For these offenses, Thompson was sentenced to three years' imprisonment and upon release five years' probation. After his release from prison, Thompson learned that as a consequence of his guilty plea he was obligated to register under Kentucky Revised Statute (KRS) 17.510 as a person who had committed sex crimes or crimes against minors.[1] Dissatisfied with the performance of his counsel, Thompson filed a Kentucky Rule of Criminal Procedure (RCr) 11.42 motion. After the circuit court denied Thompson's motion without a hearing, he appealed to the Court of Appeals, which reversed the judgment of the circuit court and remanded Thompson's case to the circuit court.[2] Having granted the Commonwealth's motion for discretionary review, we affirm the Court of Appeals' opinion and remand this case to the Hardin Circuit Court for further proceedings.


         During the fall of 2010, Thompson (who was at that time twenty-years-old) became enamored with Mindy, [3] a student at North Hardin High School. On October 17, 2010, Mindy, who was concerned about Thompson's recent behavior towards her, contacted the police to inform them about information displayed on his Facebook page. Thompson's Facebook page did not list his real name, but rather the name of a Texas mass murderer. Additionally, Thompson's Facebook page featured a photograph of Thompson posing with a gun and included posts in which he made detailed threats to kill Mindy and r her brother. The posts were highly specific, noting the number of shots he would take and where on his intended victims' bodies he would be aiming.

         The following day, police received a tip from Thompson's stepfather that Thompson was headed to North Hardin High School and was armed. Multiple officers with the Vine Grove Police Department responded to the tip and confronted Thompson in the school's parking lot. Shortly after police intercepted Thompson, classes concluded for the day and students began to exit the school. A search of Thompson's car led to the recovery of a loaded gun in the unlocked console between the driver and passenger seats. Subsequently, Thompson was arrested and taken into custody.

         In December 2010, Thompson was indicted by the Hardin County grand jury for criminal attempt to commit murder, criminal attempt to commit kidnapping, unlawful possession of a weapon on school property, third-degree terroristic threatening, carrying a concealed deadly weapon, and possession of marijuana. At Thompson's arraignment, a trial was scheduled for September 12, 2011. Afterwards, the circuit court conducted two hearings at Thompson's request regarding his competence to stand trial and his motion to suppress evidence. On August 31, 2011, the circuit court deemed Thompson competent to stand trial and denied his motion to suppress evidence, obtained from a > search of his vehicle as well as a statement he made to police.

         The following day Thompson withdrew his not guilty plea and entered into a plea agreement with the Commonwealth. As part of his plea, the Commonwealth agreed to amend the charge of criminal attempt to commit murder to second-degree terroristic threatening. For that amended charge the Commonwealth recommended a three-year prison sentence. As for ; Thompson's remaining charges, the Commonwealth recommended the following penalties: 1) criminal attempt to commit kidnapping - five years' probation; 2) unlawful possession of a weapon on school property - three years' imprisonment; 3) third-degree terroristic threatening - eight months' imprisonment; 4) carrying a concealed deadly weapon - nine months' imprisonment; and 5) possession of marijuana - thirty days' imprisonment. The plea agreement specified that these sentences were to run concurrently, with the exception of criminal attempt to commit kidnapping, which was to run consecutively. Accordingly, Thompson's recommended sentence was three years' imprisonment to be followed upon release by five years' probation.

         Prior to sentencing, Thompson indicated by letter to the circuit court that he wished to withdraw his guilty plea. However, at the October 11, 2011 sentencing hearing, Thompson had again changed his mind and stated that he wanted to proceed with the sentencing as planned. The circuit court sentenced Thompson in conformance with the plea agreement.

         Two years later, in October 2013, Thompson filed a motion requesting that the circuit court remove him from the "Sexual Offender Registry and vacate any future requirements for him to submit to registering."[4] Thompson argued that he was unaware at the time of his plea that, as a consequence of pleading guilty to criminal attempt to commit kidnapping of a minor victim, he would be obligated to register as a sex offender under KRS 17.510. The motion did not reference RCr 11.42 or mention ineffective assistance of counsel.. At a hearing on Thompson's barebones motion, his counsel at the time of the plea testified that neither he nor the prosecutor had believed that Thompson's plea mandated sex offender registration.

         The circuit court denied Thompson's motion, concluding that while the plea agreement and the judgment were silent as to the requirement of sex offender registration, the "[f]ailure to advise of the registration requirement is arguably not grounds for relief pursuant to RCr 11.42." The circuit court further explained that "[g]iven the strong preference in Kentucky law for the finality of judgments, the only way to consider any further relief would be by way of an agreed order pursuant to CR 60.02, with the Commonwealth considering the input of the victim for such a request." Based on this reasoning, the circuit court denied Thompson's motion without prejudice.

         Several months later, in June 2014, Thompson filed a motion to vacate, set aside, or correct sentence pursuant to RCr 11.42. Thompson claimed that counsel had never discussed the sex offender registration requirement with him and that "[h]ad he known of the requirement that he register as a sex offender pursuant to KRS 17.510, he would not have accepted the Commonwealth's Offer on a Guilty Plea, and instead would have rejected the plea offer and insisted on proceeding to trial."

         In July 2014, the circuit court entered an order denying Thompson's RCr 11.42 motion without a hearing. The circuit court found that Thompson's attorney did not inform his client of the post-conviction registration requirement. The circuit court concluded that Thompson's counsel should have advised his client about registration, and the circuit court should have included registration notification in the sentencing order. Nevertheless, the court held that these failures did not warrant action under RCr 11.42.

         The circuit court offered three separate reasons for denying Thompson's motion. First, Thompson did not appeal from the October 2013 denial of his barebones motion seeking removal from the sex offender registry. Second, in the circuit court's view, counsel's failure to inform Thompson about the registration duty was not ineffective assistance. Relying on Carpenter v. Commonwealth, 231 S.W.3d 134 (Ky. App. 2007) and Commonwealth v. Pridham, 394 S.W.3d 867 (Ky. 2012), the circuit court concluded that the registration requirement is a collateral consequence of a guilty plea and as such does not implicate the constitutionality of a guilty plea or counsel's effectiveness.

         Finally, the circuit court determined that even if the failure to advise Thompson regarding registration was ineffective representation, Thompson could not show "actual prejudice from counsel's actions." The court explained that due to the evidentiary hearing on Thompson's suppression motion,

[t]he file contains a considerable amount of evidence about the charges. The evidence of guilt against Thompson was compelling, and he has not alleged any meaningful defense. His competency and criminal responsibility were both evaluated, and no defense was found on any mental condition grounds. Thompson has provided nothing to show that acquittal was likely.

         The circuit court noted that Thompson faced a considerably longer sentence of decades had a jury convicted him of the original attempted murder charge, and even without that charge, he faced a potential fifteen-year sentence. Further, the circuit court concluded that "[t]he choice between this probable outcome and the outcome promised by his plea deal was a meaningful one. Thompson cannot establish actual prejudice from the alleged ineffective representation of his counsel. A decision by Thompson to proceed to trial because of the registration issue would not have been rational." Based on this reasoning, the circuit court denied Thompson's motion to vacate, set aside, or correct sentence under RCr 11.42.

         In a unanimous decision, [5] the Court of Appeals reversed the circuit ) court's denial of Thompson's post-conviction motion. The Court of Appeals concluded that Thompson was denied effective assistance of counsel when counsel failed to inform him that as part of his plea he would be required to register as a sex offender. The Court of Appeals remanded the case, although it did not articulate the nature of any further proceedings in the circuit court. On the Commonwealth's motion, we granted discretionary review to evaluate whether Thompson's counsel provided ineffective assistance when he failed to inform Thompson of the statutory duty to register.


         I. Stride land Test for Ineffective Assistance of Counsel

         Thompson's allegations of ineffective assistance of counsel are evaluated under the standard promulgated by the United States Supreme Court in Strickland, as modified by Hill v. Lockhart, 474 U.S. at 52, in those cases where the defendant opts to plead guilty rather than go to trial. To establish ineffective assistance of counsel in the context of a guilty plea, "[t]he movant must demonstrate that: (1) defense counsel's performance fell outside the wide range of professionally competent assistance; and that (2) a reasonable probability exists that, but for the deficient performance of counsel, the movant would not have pled guilty, but would have insisted on going to trial." Commonwealth v. Rank, 494 S.W.3d 476, 481 (Ky. 2016).

         "When faced with an ineffective assistance of counsel claim in an RCr 11.42 appeal, a reviewing court first presumes that counsel's performance was reasonable." Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (citing Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007)). The reviewing court is then obligated to "consider the totality of the circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington inquiry into the performance of counsel[.]" Rank, 494 S.W.3d at 481 (quoting Bronkv. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001)). The factual findings of the circuit court and determinations of witness credibility are reviewed only for o clear error, while the application of legal standards and precedents is reviewed de novo. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008).

         II. Thompson's Claims are Not ...

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