COMMONWEALTH OF KENTUCKY V. KYLE D. THOMPSON

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, con~cted the police to inform th~m 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 Face book page featured a photogr~ph of Thompson po.sing with a

gun and included posts in which he made detailed threats to kill Mindy and

i The attempted kidnapping victim was a minor.

2 It is unclear from .the Court of Appeals' decision what action the circuit court was to take on remand: As best we can discern, the Court of Appeals simply · concluded that Thompson's counsel's failure to advise him about sex offender registration was ineffective assistance. Under Strickland v. Wa.Shington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and Hill v. Lockhart, 474 U.S. 52, 106 S. Ct .. 366 (1985), the circuit court would presumably still need to address whether Thompson was prejudiced by this fail~re. ·3 The name of the minor victim in this opinion ha~ been replaced with a pseudonym to preserve her privacy.

2

( . 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 ~o suppress

evidence. On August 31, 2011, the ~ircuit---'court deem~d 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 I

into a plea agreement with the Commonwealth. As part of his plea, the

Commonwealth agreed to amend the charge of criminal attempt to commit

)

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/ murder to second-degree terroristic threatening. For that amended charge the

Commonwealth recommende.d 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 ye.ars'

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. • J •

The plea agreement specified that these sentences were to run concurrently,

.,~ with the exception of criminal attempt to commit kidnapping, which was to t:'lln

consecutively. Accordingly, Thompson's recommended sentence was three

years' imprisonmen,t to be followed upon release by five years' probation.

Prior to sentencing, Thompson indicated by letter to the circuit court that

he wished to withd,raw his guilty plea. However, at the October 11, 2011

sentencing hearing, Tpompson had again changed his mind and stated that he . ' \ . " .wanted to proceed wi~h 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

I that the circuit court remove him from the ."Sexual Offender Registry and I vacate any future requirements for him to submit to registering."4 Thompson

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4 Thompson's motion did not identify a provision of the Kentucky Rules of Criminal Procedure or Kentucky Rules of Civil Procedure (CR) through which he sought relief: It was a sillgle-~entence motion and cited no caselaw.

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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·[ 1.42 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 "[fjailure 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 Ple~, and instead would have ~ejected the

plea offer and insisted on proceeding to trial."

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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

1have 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 co1:1rt 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 mejillingful defense. His competency and criminal responsibility were both evaluated, and no defense

6

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 d,eal 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, s 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 i,nform 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 st8:tutory duty to register;

I '

s Although the other two members of the appellate panel agreed with the outcome reached by·thejudge who wrote the opinion, they both concurred in result only.

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ANALYSIS

I. Strickland.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, 4.74 U.S. at 52, in those cases where

the defendant opts to plead guilty rather than go to tri8.I. To establish

· ineffective assistance ~f 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 itjsisted 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, 103o(Ky. 2007)). The

reviewing court is then obliga~ed 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

th~ performance of counsel['.]" Rank, 494 S .. W.3~. at 481 (quoting Bronk·v.

Commonwealth, 58 S.W.3d 482, 486 ·(Ky. 2001)). The factual findings of the

circuit court and determinat.ions of witness credibility are reviewed only for

8

}

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 Procedu~lly Barred.

The Commonwealth argues that the Court of Appeals erred by failing to

conclude that Thompson's claims were procedurally barred. The crux of the

Commonwealth's argu:q:ient is that the registration issue that is the subject of'

this appeal was previously raised in Thompson's 2013 "Motion to Be Removed

from the Sexual Offender Registry." The Commonwealth insists that the order

denying Thompson's motion should have been appealed, and that his failure to

do so bars his later RCr 11.42 motion. In response,. Thompson notes that

because the circuit court denied his initial motion without prejudice there was

no final and appealable order, and he was entitled to raise this issue in a later

RCr 11.42 motion.

Regardless of whether Thompson's initial, bare bones motion to be·

removed from the sex offender registry was denied with or without prejudice, it

would not bar his current ineffective assistance of counsel claims·. Thompson's

initial motion to be .removed from the sex offender registry was a simple request

to be relieved of the statutory registration requirement, something the circuit

court was not authorized to do. The motion was not identified by reference to a

particular rule of criminal procedure, and we do not construe it to 'be an RCr

11.42 mtion alleging ineffective assistance of counsel. As such, the RCr 11 .42

cl~m which forms the basis for this appeal was permissible as it is not a

successive motion. See Fraser v; Commonwealth, 59 S.W.3d 448, 454 (Ky. I .

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2001) (citing RCr 11.42(3); Butler v, Commonwealth, 473 S.W .. 2d 108, 109 (Ky.

1971)). Accordingly, Thompson's RCr 11.42 claim is properly before this Court

for review.

III. Kentucky's Sex Offender Registration System ls a Nonpunitive ·Measure Rationally Related-to the Protection of Public Safety.

In 1994, in response to public putcry regarding the abduction and sexual

abuse of minors, Congress adopted the Jacob Wetterling CHmes Against .

Childre~ and Sexually Violent Offenders Registration Act. Hyatt v.

Commonwealth, 72 S.W .. 3d 566, ,569 (Ky. 2002). As part of the Act, Congress

encouraged states to pass sex offender registration statutes, with the explicit

threat that failure to do so could result in a ten percent reduction in funding

the state would normally receive under 42 U.S.C. § 3765, the Omnibus Crime

Control and Safe Streets Act of 1968. Id. In response, Kentucky adopted later

tha~ year a sex offender registration statute which was codified at KRS 17.500

540. Id. Subsequently, KRS 17.500-540 was amended by the legislature in

1998 and 2000. Id .. at 570.

In 2002, this Court unanimously determined that Kentucky's sex

. offender registration statute was constitutionally valid. Id. at 580. In reaching

this conclusion, the Court noted "that the designation of sexual predator is not

a sentence or a punishment but simply a status resulting from, a conviction of

· a sex crime." Id. at 572. Further, the Court.explained that "[t]he Kentucky

1998 and 2.0·00 Sex Offender Registration Statutes are directly related to the

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nonpunitive goals of protecting the safety of the public. The statutes in

question do not amount to a separate punishment based on past crimes." Id.

I Eight years later in Buck v. Commonwealth, 308 S.W.3d 661, 662 (Ky:

2010), this Court was asked to reconsider Hyatt in light of the 2006

amendments to the Kentucky Sex Offender Registration Act (SORA). We ) .

declined to depart from our holding in Hyatt. In rejecting Buck's constitutional

challenge to SORA, Justice Schroder, writing for a unanimous Court, stated:

Analyzing SORA and its 2006 amendments in light of what it requires from the registrant, we continue to believe that SORA is a remedial measure with a rational connection to the nonpunitive goal of protection of public safety, and we see no reason to depart from our holding in Hyatt. Buck ·has demonstrated nothing in the 2006 amendments to SORA drastic enough to render SORA punitive. ·

Id. at 667-68.

After considering the post-2006 revisions to the Kentucky sex

offender registration system, we reaffirm our .P.rior holdings in Hyatt and

Buck that the system. remains a non punitive measure designed for the

protection ·of the public. In so doing we concur with the vast majority .of

courts that have similarly concluded that by enacting sex offender

registration statll.tes, legislatures sought to create a "civil, nonpunitive

regulatory scheme." Slansky v. Nebraska State Patrol, 685 N.W.2d 335,

352 (Neb. 2004) (collecting cases); see also Smith v. Doe, 538 u.s~ 84, 96,

. 123 S. Ct. 1140, 1149 (2003) (concluding that a similar Alaska sex

offender registration statute was not punitive, but rather civil in nature).

Simultaneously, we recognize that sex offender registration has

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significant, lifelong consequences for the registrant, which brings us to

the crux of this case, namely whether effective representation of counsel

includes being informed of the mandatory sex offender registration

required by statute.

IV. The Direct/ Collateral. Distinction Remains Viable in Assessing Ineffective Assistance Claims But Is Not Always Well-Suited to Every Particular Form of Alleged Ineffective Assistance.

Relying on two Court of Appeals' cases discussed below, the circuit court

concluded that Thompson could not establish ineffective assistance of counsel

because sex offender registration was a collateral consequence of his guilty

plea. Recognizing that our Court of Appeals and the courts of other states have

focused on that approach, we address the concept briefly even though we

ultimately conclude that the distinction is not dispositive of the ineffective

assistance claim presented.

The Due Process Clause of the Fourteenth Amendment mandates that

any guilty plea be made voluntarily and intelligently. Edmonds v.

Commonwealth, 189 S.W.3d 558, 565 (Ky. 2006) (citing Boykin v. Alabama,

395 U.S. 238, 242, 89 S. Ct. J 709, 1711, (1969)). As the Supreme Court has

explained, a plea includes the simultaneous waiver of "several constitutional

rights, including [the defendant's] privilege against compulsory self

incrimination, his right to trial by jury, and his right to confront his accusers.

For this waiver to be valid under the Due Process Clause, it must be 'an

intentional relinquishment or abandonment of a known, right or privilege. m

12 (

Boykin, 395 U.S. at 243 n.5 (quoting Johnson v. Zerbst, 304 U.S. 458, 464,"58

S. Ct. 1019, 1073 (1938)).

Furthermore, it is mandatory that the defendant entering into a plea

agreement have knowledge of the "relevant circumstances and likely

consequences." Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463,

1469 (1970).6 Yet, "[t]he defendant need only be aware of the direct

consequences of the plea ... the trial court is under no constitutional

obligation tc:> inform the defendant of all the possible collateral consequences of

the plea." King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994) (citing Brown v.

Perini, 718 F.2d 784, 788-89 (6th Cir. 1983)). In distinguishing between what

constitutes_ a "direct" or "collateral" consequence of a plea, the result "turns on

whether the result represents a definite, immediate and largely automatic effect

6 Brady is generally considered the origin of the direct/ collateral consequence distinction. The Supreme Court adopted the following standard as to the voluntariness of a guilty plea:

"[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats ... , misrepresentation ... , or perhaps by promises that are py their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes)."

Id. at 760 (citation omitted) (emphasis supplied). As two leading commentators have noted: "The collateral consequences rule is based in large part on the Brady Court's implication that a trial court need advise a defendant only of direct consequences to render a plea voluntary under the Due Process Clause." Chin and Holmes, Effective Assistance of Counsel and the Consequery.ces of Guilty Pleas, 87 Cornell L. Rev. 697, 726 (2002). "The Court's other decisions regarding guilty pleas also make clear that counsel's duty of adequate representation is independent of the trial court's duty to make sure that the plea is voluntary." Id. at 729.

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on the range of the defendant's punishment." Cuthrell v. Dir. Patuxent Inst.;

475 F.2d 1364, 1366 (4th Cir. 1973).

Prior to 2010, this ~ourt, along with virtually every other state and

federal appellate court, 7 considered deportation a collateral consequence of a .

plea (and so failure to advise could not be ineffective assistance), but the

Supreme Court rejected this view in Padilla v, Kentucky, 559 U.S. 356, 130 S.

Ct. 1473 (2010). In Pqdilla, the Supreme Court held th~t coun~el's alleged

. \ inaccurate advice to his non-citizen client that his guilty plea would not impact ;

· his immigration status, when in fact the ple~ would mean almost certain

deportation, constituted deficientperformance under Strickland. Id. at 374.

The Padilla Court explained that it had "never applied a distinction between I direct and collateral consequences to define the scope of constitutionally

'reasonable professional assistance' required under Strickland." Id. at 365.

Furth~r, the Supreme Court concluded that due to "[depo:rtation's] close.

connection to the criminal process [it is] uniquely difficult to classify as either a

. direct or a collp.teral consequence." Id. at 366. 1

While the Supreme Court determined that the failure to advise on

immigration consequences could violate the Sixth Amendment, and that the

collateral versus dfrect distinction was ill-suited to· the dispo.sitlon of Padilla's

claims, the Padilla Court did not "eschew the direc~~collateral divide across the

board." Chaidez, 568 U.S.·at 355, 133 S. Ct. at 1112. In Chaidez, Justice

1 See Chaidez v. United States, 568 U.S. 342, 350-51, 133 S. Ct. 1103, 1109 (2013).

14

Kagan, addressing the ·retroactivity of Padilla for the majority, noted 'tl?-at in

Padilla "[o ]ur first order of business was . . . to consider whether the widely

accepted distinction between direct and collateral consequences categoncally

foreclosed Padilla's claim, whatever the level of his attorney's performance." Id.

She noted that the Court relied on the special nature of deportation - severe

and automatic - in proceeding to the two-part Strickland test for ineffective

assistance of counsel, even though all federal circuit courts and almost thirty

state courts would not apply Strickland to "deportation risks or other collateral

consequences of a guilty plea." Id. at 351.

Subsequent to Padilla, this Court, like courts across the country, has

interpreted that case not as nullifying the direct and collateral consequence

distinction altogether, but rather clarifying that deportation may not be treated

as a collateral consequence of a plea. See, e.g., Stiger v. Commonwealth, 381

S.W.3d 230, 235 (Ky. 2012) (reiterating that a defendant's parole eligibility is

not a direct consequence of a guilty plea and as such a lack of knowledge of

same does not render a plea involuntary). We have also recognized that, _as in

Padilla, severe and definite consequences implicating effective assistance of

counsel may be ill-suited to classification as either direct or collateral but

should be addressed in a Padilla-type analysis. Pridham, 394 S.W.3d at 867.

The Commonwealth invokes the direct/ collateral rule in this case and

. contends that registration is a collateral consequence; as noted, the circuit

court and our Court of Appeals have acc~pted this argument, as have courts in

other states. See Magyar v. State, 18 So. 3d 807, 812 (Miss. 2009) (collecting

I

/

15

cases_ from twenty other states). This characterization remains widespread,

even· after Padilla. See, e.g., People v. Gravino, 928 N.E.2d 1048, 1049 (N.Y. ·

2010) (holding that sex offender registration is a collateral rather than direct

consequence of a guilty plea, and as such "registration and the terms and

conditions of probation are not subjects that a trial court must address at the·

piea heari:p.g"); Ward v. State, 315 S.W.3d 461, 464 (Tenn. ·2010) ("[T]rial court

was not required to advise the defendant of the ·requirement of sex offender , . .

registration because it is a remedial and regulatory measure, and therefore a

collateral consequence of the gtiilty plea.").

Although the direct/ collateral analysis survives Padilla, we are not

persuaded tha~ it is well-suited to addressing the issue of counsel's

responsibility for.making a client aware of mandatory sex offender registration,

just as it was riot well-suited to addressing counsel's responsibility for informing a client of the severe and automatic penalty of deportation. Padilla,

559 U.S. at 365-66. Indeed, given the automatic, _serious and lifelong

consequences of registration __:. consequences readily discernible by rea,ding the . . SORA statute - we conclude that effective assistance of counsel pursuant to

the Sixth Amendment requires informing a defendant about the fact of

· ~andatory sex offender registration and what that entails ..

V. Counsel's Failure to .Advise a Client of the Sex Offender Registration Requirement Constitutes :Deficient Performance.

The Sixth Amendment "responsibilities of counsel to advise of the

'-.

advantages ,and disadvantages of .a guilty plea are greater than ~e

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responsibilities of a court under the FifthAmendment." United States v.

Youngs, 687 F.3d 56, 62 (2_d Cir. 2012) (citing Libretti v. United States, 516 U.S.

29, 50-5.1, 116 S. Ct. 356 ( 1 ~95)). This key distinction was recently addressed . . by this Court in Pridham, where a defendant claimed that he had received

incorrect advice regarding his parole eligibility. 394 S.W.3d at 871. Pridham

had been instructed by counsel that as a result of his guilty plea "[he] would ·be

eligible for parole after six years of his thirty-year sentence instead of the

twenty-year period of ineligibility in fact imposed by the vio~ent offender statute

.... " Id. ~t 878.

On review, ·we explained that "[a]lthough this additional 'penalty' is

hardly as severe as the 'penalty-' of deportation, ... the sharply extended period

of parole ineligibility is a serious enough and certairi enough detriment that a

person pleading guilty is entitled to know about it." Id. ~ontinuing, we stated

that parole eligibilicy "is a detriment that applies automatically upon conviction

of one of the statutory offenses, and while parole, technically, is not within the

sentencing court's authority,·the parole consequence here is legally inseparable

from the conviction and sentence over which the trial court does preside." Id.

Further, we analogized Pridham's situation to that of Padilla, because "Li]ust as

'[t]he consequences of Padilla's plea could easily be determined from reading

the removal statute,' the parole eligibility consequences of Pridham's plea could

easily be determined by reading the violent offender statute." Id. (quoting

. . Padilla, 559 U.S. at 537).

17

Despite parole eligibility being universally regarded as a collateral

\.___ consequence of a guilty plea, this Court remanded Pridham's case for an

I evidentiary hearing on his Strickland claim. The Court opined that it was not

"unreasonable to expect of competent defense counsel an awareness of the

violent offender statute and accurate advice concerning its effect on parole

eligibility." Id. at 879. To be clear the Court did not assess the merits of

· Pridham's claim, or its likelihood of success on remand, but rather determined

that he simply be given "an opportunity to prove that counsel misadvised him

as alleged and that absent the misadvice there is a reasonable probability he

.would have insisted upon a trial." Id.

Turning to the case at bar, it is clear that Thompson's circumstances are

substantially similar to those addressed in Pridham. Sex offender registration,

like the viOlent offender statute, is codified and can be understood by reading

the relevant Kentucky Revised Statute. Additionally, while perhaps not as dire

as deportation, registering as a sex offender carries serious, potentially lifelong,

consequences which are the inseparable result of Thompson's conviction of criminal attempt to commit kidnapping of a minor.s Based on our prior

reasoning in Pridham, we hold that Thompson was entitled to effective

s. Registration is not simply registration of one's name and address. Among other things, a registrant must register fingerprints, DNA and a photograph with the local probation and parole office; must provide and regularly update his residential address and all electronic mail and social media identities/addresses; cannot reside within a thousand feet of a school; preschool, publicly owned playground or licensed day care facility; and cannot even be on any of those premises without prior written permission pursuant to statute. Violations of the registration statute can be a Class C or D felony. SeeKRS 17.510 and .545.

18

assistance of counsel in understanding this significant, definite, and automatic

(by virtue of a state statute) consequence of his plea.9

In opposition to the conclusion we reach in this case, the Commonwealth

cites two Kentucky Court of Appeals' decisions, Carpenter, 231 S.W.3d at 134,

and Embry v. Commonwealth, 476 S.W.3d 264 (Ky. App. 2015). Embry bears

some similarity to the case at bar, as it too concerned an allegation of

ineffective assistance of counsel due to counsel's alleged failure to advise his

client that he would be required as part of a plea to register as a sex offender

for life. Factually, the cases are dissimilar given that Embry was explicitly·

informed by the circuit court that he would be required to register as a sex

offender for life (whereas counsel allegedly informed him that he would have to

register for ten years) as opposed to Thompson who was not informed of the

registration requirement by either the circuit court or his counsel. Ultimately,

I 9 Our holding is distinguishable from the situation presented in Pridham's companion case- Cox v. Commonwealth, 394 S.W.3d at 867. Cox pled guilty to felony sex abuse and was informed by counsel that he would be a "sex offender" subjeGt to several statutory requirements including a sex offender treatment program. Id. at 881. As such, Cox had the benefit .of advice concerning his plea that Thompson never received. Later, Cox alleged ineffective assistance of counsel, contending that his counsel failed to advise him how his mandatory sex offender treatment intersected with his parole eligibility. Id. In denying his claim, this Co~rt, in a unanimous opinion, explained that sex offender treatment is not a punishment, but rather a rehabilitative ~easure. Id. at 882. Additionally, the Court noted that a brief deferral in parole eligibility due to the necessity of completing sex offender treatment was not severe and its impact varied depending on a number of factors which could not be ascertained at the time of sentencing. Id. We ·disagr~e with the Commonwealth that our treatment of Cox's claims should result in a similar outcome in the case at bar. Sex offender registration differs fr.om sex offender treatment, in that the latter is principally a rehabilitative measure, whereas the former is more concerned with public safety. Further, while factors concerning sex offender treatment may be unknown at the time of sentencing; .. sex offender registration requirements are readily identifiable given that registration is governed strictly by statute.

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the Embry Court concluded that because lifetime sex offender registration is

nonpunitive "failure to advise a criminal defendant he is subject to it is not an

appropriate basis for relief under Padilla or RCr 11.42. Stated otherwise~

failure to fully advise a defendant about lifetime registration does not rise to

the level of deficienf1legfil performance." Embry, 476 S.W.3d at 270.

Based on Padilla and Pridham, we disagree with the Embry court's bar on

, claims of ineffective assistance of counsel concerning sex offender registration. " This serious and automatic consequence of a plea to certain charges can

"easily be determined by reading ... the statute," Pridham, 394 S.W.3d at 878 . . (quoting Padilla, 559 U.S. at 537), and is a matter that competent counsel

would and should discuss with his client. AccordinglY:, .we overrule Embry to

the extent it ho~ds otherwise. Similarly, we overrule that portion. of Carpenter,

231 S.W.3d at 137, which holds that failure to inform a defendant

contemplating a plea about the registration requirement d~es not implicate

counsel's effectiveness.·

Our conclusion that a defendant has a right to effective assistance of

counsel concerning the requirerrl:ent to register as a sex offender finds support

from many· of our sister state courts that have considered this issue)O See

10 However, we do note that this view is not uniform as some· states have concluded that counsel's failure to.inform the client of sex offender registration cannot be ineffective assistance. See, e.g., State v. Trotter, 330 P.3d 1267, 1269 (Utah 2014) · (As sex offender registration is a collateral consequence of a guilty plea, "neither defense counsel nor the trial court is constitutionally compelled to inform a defendant of the registration requirement before a guilty plea may be accepted as knowing and voluntary/'); Taylor v. State, 887 N.W.2d 821, 826 (Minn. 2016) (holding "that a defense attorney's failure to advise a defendant about predatory-offender-registrati

For the foregoing reasons,. the opinion of the Court of Appeals is affirmed

and this case is remanded to the circuit court for proceedings consistent with

this Opinion.