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Jennings v. Commonwealth

Court of Appeals of Kentucky

April 12, 2019

KEITH JENNINGS APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM KENTON CIRCUIT COURT HONORABLE GREGORY M. BARTLETT, JUDGE ACTION NO. 15-CR-001000

          BRIEF FOR APPELLANT: Linda Roberts Horsman Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky

          BEFORE: ACREE, KRAMER, AND L. THOMPSON, JUDGES.

          OPINION VACATING AND REMANDING

          KRAMER, JUDGE:

         Keith Jennings appeals from a judgment of the circuit court denying his request to modify his probation to strike the condition restricting his access to the internet as unconstitutional, as held in Packingham v. North Carolina, __ U.S. __, 137 S.Ct. 1730, 198 L.Ed.2d 273 (2017). After careful review, we vacate and remand for proceedings not inconsistent with this opinion.[1]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 2004, Jennings was convicted of attempted use of a minor in a sexual performance (a misdemeanor) and distribution of matter portraying a sexual performance by a minor (a felony) in Jefferson County Circuit Court. Jennings had helped a third party (a juvenile) take a photograph of another naked juvenile in a shower. Jennings developed the photograph and had it in his possession. He also allegedly showed the developed photograph to another juvenile. The misdemeanor conviction required Jennings to register as a sex offender for twenty years.[2]

         In 2015, Jennings was indicted by the Kenton County grand jury for failure to comply with sex offender registration (three counts) and persistent felony offender (PFO), second degree.[3] Authorities discovered that Jennings had reported his address as Latonia, Kentucky, but that he was actually living in Amelia, Ohio. In exchange for his guilty plea, the Commonwealth dismissed two counts of failure to comply with sex offender registration. At sentencing, the Commonwealth argued for ten years' incarceration. Jennings argued for probation. The circuit court sentenced Jennings to seven and one-half years' incarceration[4] and probated his sentence for five years. One of the many conditions of probation imposed by the circuit court was "[n]o access to internet."

         Approximately one month after sentencing, Jennings moved to modify his probation conditions, but he did not seek to modify the condition prohibiting his access to the internet. Jennings was successful on his motion, but remained subject to the condition that he not have access to the internet. The Division of Probation and Parole filed a violation of supervision in the circuit court several months later. The violation alleged that Jennings had an active Facebook account. Jennings also faced new criminal charges in Jefferson County as a result of the alleged Facebook account and unreported associated email addresses.

         The new charges against Jennings in Jefferson County were eventually dropped, but the Commonwealth's Attorney in Kenton County moved forward to revoke Jennings's probation based on the same set of facts. The Commonwealth argued that Jennings had violated the probation condition of "[n]o access to internet." Jennings argued that the probation condition prohibiting his access to the internet was impermissible as a violation of the First Amendment to the United States Constitution under the recent United States Supreme Court decision in Packingham. Jennings wanted the condition stricken. Jennings did not stipulate to internet use and offered testimony that he was not the one who used the Facebook account that was registered in his name. The Commonwealth argued that Packingham was inapplicable because it concerned a statute that restricted internet access for offenders who had served out their sentences, and Jennings's case was distinguishable because he was on actively supervised probation. In its "Memorandum of Law in Support of Affidavit of Violation of Probation," the Commonwealth argued that images of child pornography had been uploaded to an unregistered email address of Jennings. However, the record does not show that there were resulting child pornography-related charges stemming from said allegations. The Commonwealth did not present evidence that Jennings had uploaded child pornography to an unregistered email address at the probation revocation hearing.[5]

         The circuit court declined to revoke Jennings's probation after a hearing. An order was entered modifying his probation, requiring him to serve four (4) months in the Kenton County Detention Center with credit for time served.[6] The circuit court also declined to modify the probation to remove the condition of "[n]o access to internet." Jennings orally moved the court to modify the condition to allow internet access at the discretion of his probation officer. The circuit court denied his request. This appeal followed. Further facts will be developed as necessary.

         II. STANDARD OF REVIEW

         Whether a condition of probation violates a defendant's constitutional rights is a legal question that is reviewed de novo. Wilfong v. Commonwealth, 175 S.W.3d 84, 95 (Ky. App. 2004).

         III. ANALYSIS

         In Packingham, the United States Supreme Court invalidated a North Carolina statute that prohibited all registered sex offenders from accessing "a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages."[7]Packingham, 137 S.Ct. at 1733. Defendant/petitioner Packingham had been convicted in North Carolina in 2002 for having sexual intercourse with a thirteen-year-old girl.[8] As a result, he was required to register as a sex offender. As a registered sex offender, he was barred by the aforementioned statute from accessing commercial social networking sites. In 2010, Packingham was convicted for violating the North Carolina statute when he posted about a traffic ticket on a Facebook account registered in his name. Notably, the underlying ...


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