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# UrE7/.l/fe 14mfk41WJ11,t>c. COMMONWEALTH OF KENTUCKY APPELLANT



## v. I ON REVIEW FROM COURT OFAPPEALS CASE NO. 2014-CA-001318-MR HARDIN CIRCUIT COURT NO. 10-CR-00433
KYLE D. THOMPSON

OPINION OF THE COURT BY JUSTICE HUGHES AFFIRMING AND REMANDING APPELLEE

In October 2011, Kyle D. Thompson pled guilty to second-degree terroristic threatening, criminal attempt to commit kidnapping, unlawful

• I possession ofa weapon on school property, third-degree terroristic threatening, carrying a concealed deadly weapon, and possession ofmarijuana. 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 ofhis 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 minprs. 1 Dissatisfied with the performance ofhis .counsel, Thorr.ipson filed a Kentucky Rule ofCriminal Procedure (RCr) 11.42 motion. After the circuitcourt denied Thompson's motion without a hearing, he f:lPPealed to the Court ofAppeals,.which reversed thejudgment ofthe·circuit court and remandedThompson's case to the circuitcourt.2 Having**grant~d** the Commonwealth's motion for discretionary review; we affirm the Court of Appeals' opinion and remand this case to the_Hardin Circ-uit Court for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND During the fall of2010, Thompson (who was at that time twerity-yearsold) became enamored with Mindy,3 a student at North Hardin High School. On October'17, 2010, Mindy, who was concerned aboutThompson's recent behavior towards her, contacted the police to inform them about infon:llation displayed on his Facebook page. Thompson's Facebook page..did not list his

. 

### . real name, butrather the name ofa Texas mass murderer. Additionally, Thompson's Face book page featured a photograph ofThompson posing with a gun and included posts in which he made detailed threats to 

### kill Mindy and

1 The attemptedkidnappingvictim was a minor.
2 It isunclear from .the Court ofAppeals' decision what action the circuit court was to take onremand: As bestwe can discern, the Court ofAppeals simply · concluded thatThompf;!on'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 courtwould presumably still need to addresswhetherThompson was prejudiced bythis**fail~re.** ·3 The name ofthe minorvictim in this opinion**ha~** beenreplaced with a pseudonym to preserve herprivacy. 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 ofThompson's car led to the recovery ofa 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 juryfor criminal attempt to commit murder, criminal attempt to commit

. 

### . kidnapping, unlawful possession ofa weapon on school property, third-:degree terroristic threatening, carrying a concealed deadlyweapon, and possession of · marijuana. ·AtThompson's arraignment, a trial was scheduled for September 12, 2011. Afterwards, the circuit court conducted two hearings atThompson's request regarding his competence to stand trial and his motion to suppress evidence. On August 31, 2011, the**~ircuit**_/court deemedThompson competent to stand trial and denied his motion to suppress evidence.obtained from a search ofhis vehicle as well as a s1atement he made to police. The following day Thompson withdrew his not guilty plea and entered into a plea agreement with the Commonwealth. As part ofhis plea, the Commonwealth agreed to amend the charge ofcriminal attempt to commit 3/ murder to second-degree terroristic threatening. For**tha~** 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 ofa weapon on school property
- three years' imprisonment; 3) third-degree terroristic threatening- eight months' imprisonment; 4) carrying a concealed deadly we.apon - nine months' imprisonment; and 5) possession ofmarijuana.:.... thirty days' imprisonment.

. - . The plea agreement specified that these sentences were to run concurrently, with the exception ofcriminal attempt to commit kidnapping, which was to t:'lln 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 sentencinghearing, TP,ompson had again changed his mind**~d** stated that he .wanted to proceed**wi~** the sentencing as planned. The circuit court sentenced Thompson in·conformance with the plea agreement. Two years later, in October 20.13, Thompson filed a motion requesting that the circuit court re:i:nove him from the."Sexual Offender Registry and

. I vacate any future requirements for him to submit to registering."4 Thompson

4 Thompson's motion did not identify a provision ofthe Kentucky Rules of Criminal Procedure or Kentucky Rules.ofCivil Procedure (CR) through which he sought**relief~** Itwas a**si.Ilgle-~entence** motion and cited no caselaw. 4argued that he was unaware at the time ofhis plea**that~** as a consequence of

. ·pleading·guilty to criminal attempt to commit kidnapping ofa minor victim, he

would be obligated to register as a sex offenderunder KRS 17;510. The motion did not reference RCr·1. 1.42 ormention ineffective assistance ofcounsel.. At a

. . hearing on Thompson's barebones motion, his counsel at the time ofthe plea testified that neither he nor the prosecutor had believed thatThompson's plea mandated sex·offenderregistration. The circuit court deniedThompson's motion; concluding that while the plea agreement and thejudgmentwere silent as to the requirement of sex ·offender registration, the "[f]ailure to advise ofthe registration

### requir~ment is arguably not grounds for reliefpursuant to RCr 11.42." The circuit court further explained that "[g]iven the strong**pr~ference** in Kentucky law for the finality of judgments, the onlyway to consider any further reliefwould be by way ofan agreed orderpursuant to CR 60.02, with the Commonwealth consideringthe input ofthe victim for such a request." Based on this reasoning, the circuit court denied Thompson's motion without prejudice. Several months later, in June 20J4, 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 ofthe requirement thathe 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 rejected the plea offer and insisted on proceeding to trial." 5In July 2014, the circuit court entered an order denyingThompson's RCr 11.42 motion without a hearing. The circuit court found thatThompson's attorney did not inform his client ofthe post-conviction registration requirement. The circuit court concluded thatThompson's counsel should

.have advised his client about registration, and the circuit court shouldhave

included registration notification in the sentencing order. Nevertheless, the court held that these failures did notwarrant 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 ofhis 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 ofa guilty plea and as such does not implicate the constitutionality ofa guiltyplea or counsel's effectiveness. Finally, the circuit court determined that even ifthe failure to advise Thompson regarding registration was ineffective representation, Thompson could not show "actual prejudice from .counsel's actions." The**co~** explained that due to the evidentiary hearing on Thompson's suppression motion, [t]he file contains a considerable amount ofevidence about the charges. The evidence ofguilt againstThompson was compelling, and he has not alleged any me,aningful defense. His competency and criminal responsibilitywere both evaluated, and no defense 6was found on any mental condition grounds. Thompson has provided nothing to show that acquittal was likely. The circuit court noted thatThompson faced a considerably longer sentence of decades had a juryconvicted him ofthe 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 byThompson to proceed to trial because·ofthe 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 ofAppeals reversed the circuit court's denial ofThompson's post-conviction motion. The Court ·ofAppeals ·concluded thatThompson was denied effective assistance ofcounsel when counsel failed to**~nform** him that a:.s part ofhis plea he would be required to register as a sex offender. The Court ofAppeals remanded the case, although it did not articulate the nature ofany-further proceedings in the circuit court. On the Commonwealth's motion, we granted discretionary review to evaluate whetherThompson's counsel provided ineffective assistance when he failed to inform Thompson ofthe statutory duty to register.- I '-

s Although the other two members ofthe appellate panel agreed with the outcome reached bythejudge who wrote the opinion, theyboth concurred inresult only. 7ANALYSIS I. Strickland.Test for Ineffective Assistance ofCounsel Thompson's·allegations ofineffective assistance ofcounsel are evaluated under the standard promulgated by the United States Supreme Court in 

### Strickland, as modified by

### Hill v. Lockharl, 4.74 U.S. at 52, in those cases where the defendantopts to plead guiltyrather than go to 

### tri.8.1. To establish ·ineffective assistance ofcounsel in the context ofa guilty plea, "[t]he movant

must demonstrate that: (1) defense counsel's performance fell outside the wide range ofprofessionally competent assistance; andthat (2) a reasonable probability exists t:tiat, butforthe deficient performance ofcounsel, the movant would not have pled guilty, butwould have insisted on going to trial." 

### Commonwealth v. Rank, 494 S.W.3d 476, 481 (Ky. 2016).

. . . . . "When faced with an :ineffective assistance ofcounsel claim in an RCr 11.42 appeal,.areviewing court first presumes that counsel's performance was reasonable." 

### Commonwealth v. McGonnan, 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 ofthe circumstances surrounding the ·guilty plea andjuxtapose the presumption ofvoluntariness irtherent in a proper plea colloquywith a 

### Strickland v. Washington inquiry into the performance of**counsel[~]"** 

### Rank, 494 S_.W.3d.at 481 (quoting

### Bronk·v. Commonwealth, 58 S.W.3d 482, 486·(Ky. 2001)). The factual findings ofthe circuit court and determinat,ions ofwitness credibility are reviewed only for

8clear error,, while the application oflegal standards and precedents is reviewed 

### de novo. Brown v. Commonwealth, 253 s:W.3d 490, 500 (Ky. 2008). II. 

### Thompson's Claims are Not**Procedur~lly** 

### Barred. The Commonwealth argues that the Court ofAppeals erred by failing to conclude thatThompson's claims were procedurally barred. The crux ofthe Commonwealth's argument 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 ofwhetherThompson'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 ofcounsel claims·. Thompson's initial motion to be removed from the sex offender registry was a simple request to be relieved ofthe statutory registration requirement, something the circuit courtwas not authorized to do. The motion was not identified by reference to a particular rule ofcriminal procedure, and we do not construe it to be an RCr 11.42 motion alleging ineffective assistance ofcounsel. As such, the RCr 11.42 claim which forms the basis for this appeal was permissible as it is not a successive motion. 

### SeeFraser v. Commonwealth, 59 S.W.3d 448, 454 (Ky.
I 92001) (citing RCr 11.42(3); 

### Butlerv, Commonwealth, 473 S.W.2d 108, 109 (Ky. 1971)). Accordingly, Thompson's RCr 11.42 claim is properly before this Court for review. 

### JII. Kentucky's Sex Offender Registration System-is a Nonpunitive ·Measure Rationally Relatedto the Protection ofPublic Safety. In 1994, in response to public .outcry regarding the abduction and sexual abuse ofminors, Congress adopted the Jacob Wetterling Crimes Against
. ChildreIJ. and SexuallyViolent Offenders Registration Act. Hyatt 

### v. 

### Commonwealth, 72 S.W
..3d 566,,569 (Ky. 2002). As partofthe Act, Congress encouraged states to pass sex offender registration statutes, with the explicit threat that failure todo so could result in a ten percent reduction in funding the state would normally receive under 42 U.S.C. § 3765, the Om.nibus Crime Control and Safe Streets Act of 1968. Id. In response, Kentucky adopted later thatyear 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 Courtunanimously determined that Kentucky's sex

.offender registration statute was constitutionallyvalid. Id. at 580. In reaching

this conclusion, the Court noted "thatthe designation of sexual predator is not
a sentence or a punishmentbut simply a statusresultingfrom, a conviction of

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

1998 and 2.000 Sex Offender Registration Statutes are directly related to the

10non punitive goals ofprotecting the safety ofthe public. The statutes in question do not amount to a separate punishment based on past crimes." Id. Eightyears later in 

### Buck v. Commonwealth, 308 S.W.3d661, 662 (Ky; 2010), this Courtwas asked to reconsider 

### Hyattin light ofthe 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 ofwhat it requires from the registrant, we continue to believe that SORA is a remedial measure with a. rational connection to the nonpunitive goal ofprotection ofpublic safety, and we see no reason to depart from ourholding in 

### Hyatt. Buck·has demonstrated nothing in the 2006 amendments to SORA drastic enough to render SORA punitive. · Id. at667-68. After considering the post-2006 revisions to the Kentucky sex offehder registration system, we reaffirm our :P.rior·holdings in 

### Hyatt and 

### Buckthat the system remains a nonpunitive measure designed for the protection·ofthe public. In so doingwe concurwith the vast majority of courts that have similarly concluded that by enacting sex offender registration statutes, legislatures sought to create a "civil, nonpunitive regulatory scheme." 

### Slansky v. Nebraska StatePatrol, 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 similarAlaska sex

offender registration statute was notpunitive, butrather civil in nature). Simultaneously, we recognize that sex offender registration has 11significant, lifelong consequences for the registrant, which brings us to the crux ofthis case, namelywhether effective representation ofcounsel includes being informed ofthe mandatory sex offenderregistration required by statute. IV. 

### The Direct/Collateral Distinction Remains Viable in Assessing Ineffective**Assi~tance** 

### Claims But Is Not Always Well-Suited to Every 

### Particular Form ofAlleged Ineffective Assistance. Relying on two Court ofAppeals' cases discussed below, the circuit court concluded thatThompson could not establish ineffective assistance ofcounsel because sex offender registration was a collateral consequence ofhis guilty plea. .Recognizing that our Court ofAppeals and the courts ofother states have focused on that approach, we address the concept briefly even though we ultimately conclude that the distinction is not dispositive ofthe ineffective assistance claim presented. The Due Process Clause ofthe FourteenthAmendment mandates tha,t 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
..1709, 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 selfincrimination, his right to trial byjury, and his right to confronthis accusers. For this waiver to be valid under the Due Process Clause, it must be 'an intentional relinquishment or abandonment ofa known,right or privilege.m

12 

### IBoykin, 395 U.S. at 243 n.5 (quoting Johnson v. Zerbst, 304 U.S. 458, 464,"58 S. Ct. 1019, 1073 (1938)). Furthermore, itis mandato:ry that the defendant entering into a plea agreement have knowledge ofthe "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 ofthe direct consequences ofthe plea
... the trial court is under no constitutional obligation to inform the defendant ofall the possible collateral consequences of the plea." King 

### v. Dutton, 17F.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 ofa plea, the result "turns on whether the**~esult** represents a definite,**immedi~te** and largely automatic effect

6 Bradyis generally consideredthe origin ofthe direct/collateral consequence distinction. The Supreme Court adopted the following standard as to the voluntariness ofa guiltyplea: "[A] plea ofguilty entered by one fully aware ofthe direct consequences, includingthe actualvalue ofany commitments made to him bythe court, prosecutor, orhis own counsel, must stand unless induced by threats
..., misrepresentation
..., or perhaps bypromises that are py their nature improper as havingno properrelationship to the prosecutor's business (e.g.**b~bes)."** Id. at 760 (citation omitted) (emphasis supplied). As tvyo leading commentators have noted: "The collateral consequences rule is basedinlarge part on the Brady Court's implication that a trial courtneed advise a defendant only ofdirect consequences to render a pleavoluntaryunder theDue Process Clause." Chin and Holmes, Effective Assistance ofCounsel and the ConsequeJ1.ceS ofGuilty Pleas, 87 Cornell L. Rev. 697, 726 (2002). "The Court's other decisions regarding guilty pleas also make clear that counsel's duty ofadequate representation isindependent ofthe trial court's duty to make sure that the pleais voluntary." Id. at 729. 13on the range ofthe 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 federi;U. appellate court,7 considered deportation a collateral consequence ofa . plea (and so failure to advise could not be ineffective assistance), but the Supreme Court rejected this view in Padilla 

### v, Kentucky, 559**U.~.** 356, 130 S. Ct. 1473 (2010). Jn·P<I:dilla, 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 plea would mean almost certain

. , deportation, constituted deficient.performance under Strickland. Id. at 374. The Padilla Court explained that ithad "never applied a distfnctio.n between \ direct and collateral consequences to define the scope ofconstitutionally 'reasonable professional assistance'required under Strickland." Id. at 365. Further, the Supreme Court concluded that due to "[deportation's] close. connection to the criminal process [it is] uniquely difficult to classify as either a

.direct or a collft.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**disti~ction** was ill-suited to· the dispo.sitlon ofPadilla's claims, the Padilla Court did not "eschewthe**direc~-collateral** divide across the board." Chaidez, 568 U.s.·at 355, 133 S. Ct. at 1112. In Chaidez, Justice

1 See Chaidezv. United States, 568 U.S. 342, 350-51, 133 S. Ct. 1103, 1109 (2013).
. 14Kagan, addressing the retroactivity of Padillafor'·the majority, noted**~at** in Padilla "[o]ur first order ofbusiness was . . . to consider whether the widely accepted distinction between direct and collateral consequences categorically foreclosed Padilla's claim, whatever the level ofhis attorney's performance." Id. She noted that the Court relied on the special nature ofdeportation

- severe · and automatic

- in proceeding to the two-part Stricklandtest for ineffective · assistance ofcounsel, even though all federal circuit courts and almost thirty state courts would not apply Stricklandto "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, butrather clarifying that deportation may not be treated
as a collateral**cons~quence** ofa 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 ofa guilty plea and as such a lack ofknowledge 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 ofAppeals have accepted this argument, as have courts in other states. See Magyar v. State, 18 So. 3d 807, 812 (Miss. 2009) (collecting ) 15cases_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**din~ct** consequence 

### ofa guiltyplea, and as such "registration and the terms and

. . . conditions ofprobation 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]riaJ court
was not required toadvise the**de~endant** ofthe ·requirement ofsex offender _registration because it is a remedial and regulatory measure, and therefore a collateral consequence ofthe gtiilty plea."). Although ti:ie direct/collateral analysis survives 

### Padilla, we are not persuaded that it is well-suited to addressing the issue ofcounsel's responsibility for_making a client aware ofmandatory sex offender registration, just as it was riot well-suited to addressing counsel's responsi_bility for informing

# aclient ofthe severe and automatic penalty ofdeportation. 

### Padilla, 559 U.S. at 365-66. Indeed, given the automatic, serious and lifelong consequences ofregis1fation -.:.. consequences readily discernible by reading the.

. . SORA statute
- we conclude that effective assistance ofcounsel 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 ofthe Sex Offender**~egistratioil** Requirement Constitutes I)eficient Performance. The SixthAmendment "responsibilities ofcounsel to advise ofthe

. . advantages 1and disadvantages of.a guilty plea are greater than**~e**
16responsibilities ofa courtunder the Fifth.Amendment." United States v. Youngs, 687**F~3d** 56, 62 (2d Cir. 2012) (citing Libretti v. United states, 516 U.S. 29, 50-5.1, 116 S. Ct. 356 (1995)). This key distinction was recently addressed

. . by this Court in Pridham, where a defendant claimed thathe had received incorrect advice regarding his parole eligibility. 394 S.W.3d at 871. Pridham had been instructed by counsel that as a result ofhis guilty plea "[he] would·be eligible for parole after sixyears ofhis thirty-year sentence instead ofthe twenty-year period ofineligibility in fact imposed by the**vio~ent** offender statute

...." Id. at 878. On review,·we explained that "[a]lthm.igh this additional 'penalty'is hardly as severe as the 'penaltY' ofdeportation,
... the sharply extended period ofparole ineligibility is a serious enough and certairi enough detriment that a person pleading guilty is entitled to know about it." Id. Continuing, we stated that parole eligibilify "is a detriment.that applies automaticallyupon conviction ofone ofthe 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 ofPadilla's plea could easily be determined from reading the removal statute,' the parole eligibility consequences ofPridham's plea could easily be determined byreading the violent offender statute." Id. (quoting Padilla, 559 U.S. at 537).

17Despite parole eligibility beinguniversally regarded as a collateral I._ consequence ofa guilty plea, this Court remanded Pridham's case for an

I evidentiary hearing on his Stricklandclaim. The Courtopined thatitwas not "unreasonable to expect ofcompetent defense counsel an awaren.ess ofthe 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 ofsuccess 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 

## areasonable probability he .would have insisted upon a triaj.." Id. Turning to the case at bar, it is clear thatThompson's circumstances are**subst~tially** similar to those addressed in Pri(!,ham. Sex offender registration, like the vk>lent offender statute, is codified and cap be understood by reading the relevantKentucky 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 ofThompson's conviction of criminal attempt to commit kidnapping of

# aminor. 8 Based on our prior reasoning in Pridham, we hold thatThompson was entitled to effective

s Registration is not simplyregistration ofone's name and address. Among otherthings, a registrant mustregister fingerprints, DNA and a photograph with the local probation andparole office; mustprovide andregularlyupdate his residential address and all electronic mail and social mediaidentities/addresses; cannot reside within a thousand feet ofa school; preschool, publicly.owned playground or licensed day care facility; and cannoteven be on any ofthose premises withoutprior written permission pursuant to statute. Violations ofthe registration statute can be a Class C or D felony. See KRS 17.510 and .545. 18assistance ofcounsel in understanding this significant, definite, and automatic (by virtue ofa state statute) consequence ofhis plea.9 In opposition to the conclusion we reach in this case, the Commonwealth cites two Kentucky Court ofAppeals' decisions, Carpenter, 231 S.W.3d at 134, and Embry v. Commonwealth, 476 S.W.3d 264 (Ky. App. 2015). Embrybears
some similarity to the case at bar, as it too concerned an allegation of .ineffective assistance ofcounsel due to counsel's alleged failure to advise his client that he would be required as part ofa plea to register as a sex offender



# . for life. Factually, the cases are dissimilar given that Embry was explicitly· informed by the circuit court thathe 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 ofthe registration requirementby either the circuit court or his counsel. Ultimately,

I 9 Ourholding 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 andwas informed by counsel thathe would be a "sex offender"**subje~t** to several statutoryrequirements including a sex offender treatmentprogram. Id. at 881. As such, Cox had the benefit ofadvice concerninghis pleathatThompson never received. Later, Cox alleged ineffective assistance ofcounsel, contendingthathis counsel failed to advise him howhis mandatory sex offender treatmentintersected with his parole eligibility. Id. Indenyinghis claim, this Court, in a unanimous opinion, explainedthat sex offender treatmentis not a punishment, butrather a rehabilitative measure. Id. at882
.. Additionally, the Courtnoted that a briefdeferral in parole eligibility due to the necessity ofcompleting sex offendertreatment was not severe and its impactvaried depending on a number offactors which could not be ascertained at the time ofsentencing. Id. We**·disagr~e** with the Commonwealth that ourtreatment ofCox's claims shouldresult in a similar outcome in the case at bar.· Sex offenderregistration differs from sex offender treatment, in that the latteris principally a rehabilitative measure, whereas the former is more concernedWith public safety. Further, while factors concerning sex offender treatment maybe unknown at the time ofsentencing; sex offender registration requirements are readily identifiable given thatregistration is governed strictlyby statute. 19/ the Embry Court concluded thatbecause lifetime sex offender registration is nonpunitive "failure to advise a criminal defendant he is subject to itis not an appropriate basis for reliefunder Padilla or RCr 11.42. Stated**otherwise~** failure to fully advise a defendant about lifetime registration does not rise to .the level ofdeficientilegal performance." Embry, 476 S.W.3d at 270. Based on Padilla and Pridham, wedisagree with tQ.e Embrycourt's bar on

, claims ofineffective assistance ofcounsel concerning sex offender registration.

This**~erious** and automatic consequence ofa plea to certain charges can "easily be determined by**r~ading** ... the statute," Pridham, 394 S.W.3d at 878

. . (quoting Padilla, 559 U.S. at 537),**~dis** 

### 8: matter that competent counsel would and should discuss with his client. Accordingly, .we .overrule Embryto 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 ofour sister state courts that have considered this issue)O See

10 However, we do ·note thatthisview is notuniform as some· states have concluded that counsel's failure to.inform the client ofsex offender registration cannot beineffective assistance. See, e.g., State v. Trotter, 330 P.3d 1267, 1269 (Utah 2014) (As sex offender registration is

## acollateral consequence ofa guiltyplea, "neither defense counselnor the trial courtis constitutionally compelled to inform a defendant· ofthe**~egistration** requirementbefore a guilfypleamaybe 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 aboutpredatory-offender-registrati<?n 20

### State v. Trammell, 387 P.3d 220, 227 (N.M. 2016) (holding that "[a] defense attorney's failure to advise a defendant entering into a plea which requires [sex offender] registration ofthat consequence is per se deficient performance under 

### Strickland's first prong"); 

### Taylor 

### v. State, 698 S.E.2d 384, 388 (Ga. 2010) (explaining that "even ifregistration as a sex offender is a collateral ( consequence ofa guilty plea, the failure to advise a client that his guilty plea will require registration is constitutionally deficient performance"); 

### People v. 

### Fonville, 804 N.W.2d 878, 894-95 (Mich. App. 2011) (concluding that**~defense** counsel must advise a defendant that registration as a sexual offender is a· consequence ofthe defendant's guilty plea"). Having considered the prior decisions ofthis Court and the views ofother

'- state courts, we conclude that the failure to adviseThompson ofhis statutory obligation to register as a sex offender falls short ofwhat the SixthAmendment requires ofcounsel. When we consider the effectiveness ofcounsel pursuant

## tq the Sixth Amendment, we assess whether counsel's performance was objectively reasonable as measured by the prevailing professional norms. While it is obvious that no attorney could anticipate all ofthe myriad consequences ofa guilty plea, where, as here, a particular consequence is sufficiently serious, definite, and automatic (it can. readily be determined by

requirements before the defendant enters a guiltyplea does notviolate a defendant's right[] to [] effective assistance ofcounsel").
21reviewing

# acontrolling**sta~e** statllte), effective assistance entails informing the client ofthat·consequence. 

### VI. The Circuit Court Must Evaluate Whether Thompson's Counsel's Deficient Performance Ca.used Him Prejudice.. While it is uncontradicted thatThompson's counsel failed t.o inform his

. . . client about the sex offender registration requirement, this alone is insufficient to establish ineffective assistance ofcounsel warranting rescission ofhis guilty plea. Rather, Thompson is required to establish that a reasonable probability exists, that had he been aware ofthe requirement to register as .a sex offender, that he would have rejected the Commonwealth's offer and insisted on. going to trial, 

### i.e., that he suffered actual prejudice as a result ofcounsel's failure to inform him ofthe registration obligation. 

### Rank, 494 S.W.3d at 481. To demonstrate that he was prejudiced, conclusory allegations are insufficient
.. Instead, Thompson "must allege facts that, ifproven, would support a. conclusion that the decision to reject the plea bargain and go to trial would

. . have been rational, 

### e.g., validdefenses, a pending suppression motion that could undermine the prosecution's case, or the realistic potential for a lower sentence." 

### Stiger, 381.S.W..3d at 237.

· · Despite having concluded thatThompson failed to show ineffective a§sistance from his counsel, the circuit court opined that assuming · 

### arguendo the failure to advise ofthe registration requirement had·been ineffective assistance there was :ho resultingprejudice in this case. ·This particularportion ofthe order denying RCr 11.24 reliefwas not addressed by


### 22the Court ofAppeals. Given that court's conclusion thatThompson**r~ceived** ineffective assistance, the second prong ofthe Strickl(lndanalysis

- wh.ether there was resulting prejudice

- was relevant. Perhaps consideration.of.that issue was whatprompted the remand. to.the circuit court. In any event, under these circumstances, we believe the better approach-is to remand the case to ) the circuit court for consideration ofthe prejudice prong ofthe Strickland/ Hilt · v. Lockhartanalysis now that it is essential to the disposition-ofthis case. In· remanding, we do not express any opinion on the circuit court's initial "assuming arguendo" prejudice analysis buttrust thatthe experienced trial judge will proceed in accordance with our precedent. Finally, the Commonwealth has emphasized that shortly afterThompson filed his RCr 11.42 motlon and before the circuit court ruled, Thompson was arrested on charges ofmurder and first-degree assault. In Thompson v. Commonwealth, 2015-SC-000245-MR, WL 5239680 (Ky. Sept. 22, 2016), this Court affirmed his conviction· following a jurytrial offirst.:.degree murder, firstdegree assault (three counts), first-degree fleeing or evading, terroristic

. . threatening and ofbeing a second-degree persistent felony offender. Thompson received a life ·sentence. We deem it appropriate to note that this subsequent conviction is ofno consequence in the prejudice analysis that the circuit court is charged with·on remand. In Hill v.**L~ckhart,** 474 U.S. at 59, the United States Supreme Court emphasized that the second prong ofthe analysis is whether there is "areasonable probability that, but for counsel's errors, [defendant] would not have pleaded guilty and would have insisted on going to 23trial." This analysis necessarily assesses the facts known and·the decision made at the time ofthe plea, not later even'ts including later convictions of different crimes. CONCLUSION For the foregoing reasons, the opinion ofthe Court ofAppeals is affirmed and this case is remanded to the circuit court for proceedingsconsistent with this Opinion. Minton, C.J.; Cunningham, Keller, and Venters, JJ., concur. VanMeter, J., concurs in part and dissents in partby separate opinion i:1;1 which Wright, J.,joins. VANMETER, J., CONCURRING IN PART AND DISSENTING IN PART: I respectfully concur in part and dissent in part. I concurwith so much ofthe majority opinibn as holds that trial counsel's failure to advise Thompson ofthe
sex offender registration was deficient performance. I dissent, however, with so much ofthe opinion as remands to the Hardin Circuit Court for another determination as to whether this deficiency causedThompson prejudice. My reading ofthe trial court's order denyingThompson's RCr 11.42 motion is that the trial court clearly and unequivocally found that "even ifthe failure to advise
was ineffective representation, Thompson has not and cannot show actual \ prejudice from counsel's actions." On this point, in its order denying, the trial court stated: Assuming, arguendo, that counsel was ineffective under an improperly broad. application of Padilla, Thompson cannot prove any resulting prejudice. Avalid guilty pleamust represent a meaningful choice between the probable outcome at trial and the 

### 24more certain outcome offered bythe plea agreement. Vaughn v. 

### Commonwealth, 258 S.W.3d 435, 439 (Ky. App. 2008). Even when Padilla applies, a defendant must show that a decision to proceed to trial in spite ofthe risk
. . . must be rational. In this case, an evidentiary hearingwas conducted on 

### a suppression motion. The file contains a considerable amount of evidence aboutthe charges. The evidence ofguilt 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 acquittal was likely.Thompson was accused ofrepeatedly making written threats to a minor and members ofher family, indicating that he would kill them. Thompson's own stepfathercalled the police and the minor's mother to ensure the safety ofthe minor. Thompson was then located in the parking lot ofa local high school with a loaded firearm, waiting for the minor. Thompson faced a considerably longer sentence ofdecades had a j1uy convicted him ofthe original attempted murder charge. Even without that charge, he could have received a sentence offifteen years to serve.

I

. The 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 ofhis counsel. A decision byThompson to proceed to trial because ofthe registration issue would not have been
. rational. Thompson is not entitled to reliefpursuant to RCr 11.42. In my view, the trial court comprehensively and accurately addressed the prejudice issue, notwithstanding its use ofthe word "arguendo," that a decision byThompson to go to trial under the circumstances would not have been rational. Padilla, 559 U.S. at 372, 130 S. Ct. at 1485; Stiger, 381 S.W.3d at 237. I would affirm the Hardin Circuit Court's order denyingThompson's RCr

1 11.42 motion; Wright, J.,joins.

_/ 25COUNSEL FORAPPELLANT: Andy Beshear Attorney General ofKentucky Kenneth Wayne Riggs Mark Daniel Barry

. AssistantAttorney General

Office·ofCriminal Appeals
COUNSEL FORAPPELLEE: Robert C. Bishop

/ . )

'·

262016-SC-000365-DG
COMMONWEALTH OF KENTUCKY

V.· ON REVIEW FROM COURT OFAPPEALS CASE NO. 2014-CA-001318-MR. HARDIN CIRCUIT COURT NO. 10-CR-00433
KYLE D. THOMPSON

ORDER OF CORRECTION APPELLANT

APPELLEE

The Opinion of'the Court byJustice Hughes, rendered June 14, 2018, is CORRECTED to reflect the vote ofthe Coutt as: "Minton, C.J.; Cunningham, Keller, and Venters, JJ., concur. VanMeter, J., concurs in part and dissents in part by separate opinion in which Wright, J.,joins. The original Opinion is replaced in its entirety by the attached corrected Opinion. The correction does not affect the holding ofthe original Opinion rendered by the Court. ENTERED: June 14, 2018.