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Ky. sex offender registry not retroactive, court rules

May. 19, 2011 @ 07:30 PM

LOUISVILLE, Ky. (AP) — A requirement that sex offenders in Kentucky register their address with law enforcement cannot be enforced retroactively, which means a Lexington man is wrongfully in prison for failing to register, the state’s Supreme Court ruled Thursday.

In a 5-2 split, the high court found that anyone convicted of a sex offense before 1994 cannot be forced to give his or her address to law enforcement officials. The ruling comes in the case of 37-year-old Anthony Nash of Lexington, who was initially convicted of two counts of third-degree sodomy on Dec. 14, 1993, just months before Kentucky enacted its sex offender registration requirements.

The high court ruled the 1994 law didn’t apply to Nash because his conviction came before it was passed and there was no provision making the law retroactive.

“As he was not required to register, he cannot be guilty of the crime of failing to register, and any sentence imposed on him would be manifestly infirm,” Justice Wil Schroeder wrote for the majority. “As it stands, the Appellee sits in prison wrongfully convicted.”

Nash’s original conviction carried a six-year sentence. He was paroled in November 1996, but his release was revoked six months later. He served out his sentence and was released in 1997. He was charged with receiving stolen property in 1999 and as a persistent felony offender and sentenced to five years in prison.

A grand jury in Fayette County charged Nash, who has been in and out of prison for multiple crimes, in January 2007 with failing to register his address. Nash pleaded guilty in August 2007 and received a five-year sentence. Nash, who is in Green River Correctional Complex in Central City, reserved the right to appeal. He is currently scheduled for release June 18, 2016.

Once the case is final, it will go back to a Fayette County Circuit Court judge to decide what happens next.

Ed Monahan, who heads Kentucky’s public defender office, said the ruling should prompt Nash’s immediate release.

“One might call this the tragedy of ordinary injustice,” Monahan said. “The system failed Mr. Nash and likely too many others who have been held illegally to the onerous restrictions placed upon sex offenders in the past two decades.”

Shelley Catherine Johnson, a spokeswoman for the Kentucky attorney general’s office, said the office is reviewing the ruling.

Before the high court, Nash argued that Kentucky’s sex offender laws were never changed to require someone convicted before they were adopted to register. The first adaptation of the law required people convicted after July 15, 1994, to register with law enforcement.

The law underwent multiple other changes, including adding a provision expanding restrictions on where offenders could live, making it a felony for a sex offender to fail to register and allowing for DNA samples to be taken from registrants.

Justice Daniel Venters, joined by Chief Justice John D. Minton Jr., noted in dissent that the case serves as a “sobering reminder” that the criminal justice system sometimes overlooks the obvious.

But, Venters wrote, the high court acted too quickly in taking the case and reversing Nash’s conviction.

“What seems to be readily apparent to us now escaped the attention of his lawyers, prosecutors, and the judge three times,” Venters wrote.



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