author: JOHNSON, Judge.

text:
    Raymond WILFONG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2002-CA-000535-MR.
    Court of Appeals of Kentucky.
    Dec. 10, 2004.
    Discretionary Review Denied by Supreme Court Nov. 16, 2005.

      Dennis Stutsman, Frankfort, KY, for appellant.
    Albert B. Chandler III, Attorney General, Brian T. Judy, Assistant Attorney General, Frankfort, KY, for appellee.
    Before JOHNSON, MINTON, and TACKETT, Judges.
   OPINION

JOHNSON, Judge.

Raymond Wilfong has appealed from the judgment and sentence of the Meade Circuit Court entered on March 12, 2002, which sentenced him to one-year imprisonment on his conviction for rape in the third degree and a subsequent three year period of conditional discharge as required by KRS 532.043. Having concluded that KRS 532.043 does not violate the separation of powers doctrine and that the conditions of Wilfong’s conditional discharge as of this time have not deprived him of his right to due process, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 7, 2001, a Meade County grand jury indicted Wilfong on one felony count of incest and one felony count of rape in the third degree for having sexual intercourse with his mentally retarded, 20-year-old stepdaughter. On February 20, 2002, before he actually pled guilty to any charge, Wilfong filed a motion requesting the trial court to enter an order prohibiting the Department of Corrections from imposing the post-incarceration, three-year conditional discharge term required under KRS 532.043. Wilfong maintained the statute violated the separation of powers doctrine, the right to jury sentencing, and the right to access to the courts.

On February 21, 2002, pursuant to a plea agreement with the Commonwealth which recommended a prison sentence of one year, Wilfong entered a plea of guilty under North Carolina v. Alford, to one count of rape in the third degree. The incest charge was dismissed. During the guilty plea hearing, the parties discussed Wilfong’s motion challenging KRS 532.043, and the Commonwealth was allowed additional time to submit a written response to the motion pending final sentencing.

At the final sentencing hearing conducted on March 7, 2002, the trial court denied Wilfong’s motion, although the judge expressed reservations about the statute. The trial court sentenced Wilfong to prison for one year, plus a three-year period of conditional discharge following his release from incarceration upon expiration of his sentence or completion of parole. This appeal followed.

We begin our analysis by noting that acts of the General Assembly carry a presumption of constitutionality. A statute will not be invalidated as unconstitutional unless it clearly, unequivocally, and completely violates provisions of the constitution. “Moreover, the Commonwealth does not bear the burden of establishing the constitutionality of a statute, rather ‘[t]he one who questions the validity of an act bears the burden to sustain such a contention.’ ” The issue of whether a statute is unconstitutional is a question of law subject to de novo review.

II. SEPARATION OF POWERS DOCTRINE

A. Infringement on Judicial discretion

First, Wilfong alleges that KRS 532.043 violates the separation of powers doctrine by infringing upon the judiciary’s duty to administer justice because it places unreasonable restrictions on the court’s exercise of discretion. He notes that unlike most sentencing statutes, which provide minimum and maximum terms and permit the exercise of discretion within a range of punishment, KRS 532.043 removes all discretion from the trial court by imposing a three-year mandatory conditional discharge.

The separation of powers doctrine precludes each of the three branches of government from encroaching upon the domain of the other two branches. Section 27 of the Kentucky Constitution creates three distinct branches of government and Section 28 precludes one branch from exercising any power properly belonging to either of the other two branches. Section 116 reserves to the Supreme Court the power to prescribe rules of practice and procedure for the Court of Justice.

The legislature, rather than the judiciary, designates the elements of criminal conduct and the penalty for crimes. The legislature is vested with the power to prescribe punishment for crimes and the judiciary’s role is to impose sentences within the statutory limits prescribed by the legislature. The legislature has the exclusive authority to establish the punishment for crimes subject only to substantive constitutional restrictions such as due process, equal protection, ex post facto or cruel and unusual punishment. Consequently, we reject Wilfong’s assertion that the General Assembly’s enactment in KRS 532.043 of the specific penalty of a mandatory three-year conditional discharge violated the separation of powers doctrine by infringing upon the judiciary’s duty to administer justice.

Similarly, we reject Wilfong’s contention that the legislature unconstitutionally usurped judicial functions by eliminating the exercise of discretion by the trial court in fixing a sentence. While conceding that the legislature may restrict judicial discretion within a sentencing term range, Wilfong argues that eliminating such discretion entirely is forbidden. However, this argument is contrary to the plenary power of the legislature to set criminal penalties. “The legislature’s discretion necessarily includes the power to prescribe mandatory sentences, even if these mandatory sentences restrict the judiciary’s discretion for imposing sentences.” The courts have no authority to impose a sentence contrary to that authorized by the legislature.

Furthermore, there is no constitutional right to individual sentencing based on the exercise of judicial discretion. In Chapman v. United States, the Supreme Court of the United States rejected the argument that the legislature could not eliminate discretionary sentencing.

Such a sentencing scheme — not considering individual degrees of culpability— would clearly be constitutional. Congress has the power to define criminal punishments without giving the courts any sentencing discretion. Determinate sentences were found in this country’s penal codes from its inception and some have remained until the present. A sentencing scheme providing for “individualized sentences rests not on constitutional commands, but on public policy enacted into statutes ” [emphases added] [citations omitted].

Thus, any judicial discretion in setting criminal penalties is derived from and subject to the legislature’s power to establish criminal punishment. In turn, the courts are required to impose an otherwise valid sentence prescribed by the legislature and the fact that the sentence is a single mandatory term does not violate the separation of powers. Accordingly, KRS 532.043 does not violate the separation of powers doctrine by usurping judicial authority or by infringing upon judicial functions.

Wilfong further suggests that “public policy” cautions against allowing the legislature to create mandatory punishment for sexual offenders because it could lead to abuse in sentencing for other crimes. This argument raises the same issues presented in Wilfong’s separation of powers argument. It is well-established that the enunciation of public policy is the domain of the legislature; the courts interpret the law and do not enact legislation. “The propriety, wisdom and expediency of statutory enactments are exclusively legislative matters.” The court cannot invalidate a statute merely because it disagrees with the public policy embodied in the statute.

As indicated earlier, the determination of penalties for criminal conduct necessarily concerns the consideration of various public policy interests that are peculiarly within the role of the legislature. In Harmelin v. Michigan, Justice Kennedy stated:

Determinations about the nature and purposes of punishment for criminal acts implicate difficult and enduring questions respecting the sanctity of the individual, the nature of law, and the relation between law and the social order .... The efficacy of any sentencing system cannot be assessed absent agreement on the purposes and objectives of the penal system. And the responsibility for making these fundamental choices and implementing them lies with the legislature [citations omitted].

Absent challenges involving specific constitutional or statutory prohibitions, this Court has no authority to invalidate KRS 532.043 on public policy grounds.

B. Jury Sentencing

Wilfong also contends that KRS 532.043 is invalid because it infringes upon the duties of the jury. He correctly concedes that he has no federal or state constitutional right to have a jury fix the sentence or penalty. Further, Wilfong does not challenge the legislature’s authority to eliminate jury consideration of that portion of the sentence mandating post-incarceration conditional discharge. However, he notes that KRS 532.055, the Truth in Sentencing Statute, provides generally for jury sentencing. Wilfong asserts that in order to fulfill its role in sentencing, the jury should be provided information regarding the statutorily required post-incarceration, three-year term of conditional discharge for sex offenders. He argues that KRS 532.043 should not be construed to prohibit informing the jury of the mandatory post-incarceration, conditional discharge term. He contends that such a procedure would illegally infringe upon the jury’s duty in considering the indeterminate term of the sentence. However, since Wilfong pled guilty and was not sentenced by a jury, his request that this Court declare KRS 532.043 to be in violation of KRS 532.055 and the constitutional guarantee of due process is wholly without merit.

III. CONDITIONS OF CONDITIONAL DISCHARGE

In addition to challenging the imposition of post-incarceration conditional discharge, Wilfong contests the actual conditions of his conditional discharge as violating his right to due process. During the term of post-incarceration conditional discharge, defendants are subject to the orders of the Department of Corrections. Department of Corrections’ policies impose several special conditions on conditional dischargees which mirror those imposed upon defendants convicted of sex offenses who are granted probation or parole. Wilfong objects to the following conditions of his conditional discharge: (1) that he not establish a romantic relationship with an adult without prior approval from his probation officer; (2) that he not possess any sexually arousing materials; (3) that he not reside near, visit, or be in or about various places where children congregate without advance approval of his probation officer; and (4) that he not possess items on his person or property that attract children.

Wilfong alleges that these conditions provide insufficient notice of prohibited conduct and that they are overly broad, thereby unfairly exposing him to reincarceration. While the revocation of supervised release is not part of a criminal prosecution requiring the full panoply of due process protections, the conditional loss of freedom embodied in the revocation of supervised release constitutes a deprivation of a defendant’s liberty which invokes certain limited procedural due process rights. Among those rights is the right of fair notice or warning of the conduct that may result in the revocation of supervised release. Whether a condition of conditional discharge violates a defendant’s constitutional rights is a legal question that is reviewed de novo.

While not stated in these express terms, Wilfong’s objections to the conditions of his conditional discharge evoke considerations embodied in the void-for-vagueness and overbreadth doctrines. The void-for-vagueness doctrine is based upon the due process requirements of the Fifth and Fourteenth Amendments to the United States Constitution; whereas, the overbreadth doctrine is limited generally to protecting against the infringement of other fundamental rights, especially First Amendment rights. The vagueness and overbreadth doctrines are related in that they both prohibit the use of overly ambiguous language in penal provisions, which sometimes has the effect of limiting constitutionally-protected activity.

Although the vagueness and over-breadth doctrines are related, they are distinct and have significant differences. The vagueness doctrine is rooted in due process principles and is directed toward ensuring fair notice in the clarity and precision of penal provisions; whereas, the overbreadth doctrine focuses on a statute’s potential impact on the exercise of a fundamental right. For instance, a provision is too vague if it fails to give fair notice of what it prohibits; and a perfectly clear statute may be unconstitutionally over-broad if it unduly infringes upon a fundamental First Amendment right

A. Void-for-Vagueness Doctrine

The void-for-vagueness doctrine requires a statute to provide fair notice by containing sufficient definiteness so that ordinary people can understand what conduct is prohibited. In addition, the doctrine mandates that the statute be worded in such a manner so as not to encourage arbitrary or discriminatory enforcement. The degree of specificity necessary to avoid unconstitutional vagueness varies depending on the type of provision. Nevertheless, the legislature need not de-fíne every term or factual situation in a statute, and terms left undefined are to be accorded their common, everyday meaning. Absolute or exact precision is not required since “flexibility and reasonable breadth” in the language chosen is constitutionally acceptable. In reviewing a vagueness challenge, the essential inquiry is whether the statute describes the forbidden conduct sufficiently so that persons of common intelligence disposed to obey the law can understand its meaning and application. The Supreme Court of the United States has indicated that the arbitrary enforcement prong is more important than the actual notice element and requires “minimal guidelines” sufficient to limit the discretion of government officials. The statute should contain objective, normative standards to prevent purely subjective decisions by government officers in enforcing the statute.

B. Overbreadth Doctrine

The overbreadth doctrine generally involves a claim that in an effort to control proscribable conduct, a statute im-permissibly reaches constitutionally permissible conduct. However, when First Amendment rights involving conduct rather than speech is at issue, an overbreadth challenge only exists where the impact of the statute upon these rights is both real and substantial when considered in relation to the statute’s plainly legitimate sweep. A law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications. The overbreadth claimant bears the burden of demonstrating from the text of the law that substantial overbreadth exists. In order to withstand a facial overbreadth challenge, a content-neutral statute regulating expression must be narrowly tailored to further a significant gov-eminent interest. However, a court facing an overbreadth challenge may and should narrowly construe a statute to avoid constitutional problems if possible.

Supervised-release conditions are subject to the constitutional doctrines of vagueness and overbreadth. However, the principles embodied in those doctrines must be applied consistently with the unique characteristics of supervised release. Inherent in the very nature of supervised release is the fact that persons on supervised release do not enjoy the absolute liberty accorded ordinary citizens. With respect to vagueness, a supervisory-release condition is not unconstitutionally vague (1) if a reasonably intelligent releas-ee could understand what conduct is required of him; and (2) the condition is sufficiently precise to prevent arbitrary enforcement.

Supervisory-release conditions need not describe every possible permutation and “can be written — and must be read — in a commonsense way.” Supervisory-release conditions may interfere with a releasee’s fundamental constitutional rights. As a general matter, supervisory-release conditions must be rationally related to the purposes of supervisory release, which are rehabilitation of the re-leasee, deterrence of future criminal activity, and protection of the public from the releasee’s being at large. Some courts have held that a supervisory-release condition which impinges on a releasee’s fundamental constitutional rights must be narrowly tailored and reasonably related to the state’s significant interest in the purpose of supervisory release, i.e., rehabilitation, deterrence, and protection of the public.

Wilfong asks this Court to apply the more relaxed standing requirements associated with facial constitutional challenges to the supervisory-release conditions by analyzing them on behalf of all persons who will be subject to post-incarceration conditional discharge. We decline to do so for several reasons. First, unlike statutes, supervisory-release conditions are directed at individual defendants rather than the expansive general public. Therefore, application of vagueness and overbreadth principles to challenges to supervisory-release conditions, even those involving First Amendment rights, typically concern the circumstances of the releasee rather than hypothetical situations involving all potentially affected releasees. The broader standing practices of the facial overbreadth doctrine, which represent an exception to the normal “as-applied” approach, were developed because of the judicial assumption that “the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.” Supervisory-release conditions have a much narrower application and individual releasees have a greater incentive to challenge them. Supervisory releasees also have diminished constitutional rights. In other words, Wilfong has not shown that the restriction on protected-constitu-tionai activity is sufficiently real and substantial in relation to the legitimate scope of government regulation of persons on supervisory release to justify a facial challenge with the relaxed standing approach. While we will consider Wilfong’s pre-enforcement challenges to the conditions, we will only review them on an as-applied basis with reference to his situation and not all hypothetical third-parties. With these principles in mind, we turn to each of the conditions challenged by Wil-fong.

C. The Individual Conditions of Conditional Discharge

1. Dating, intimate, or sexual relations with an adult

The first condition prohibits Wilfong from establishing a “dating, intimate, sexual relationship with an adult without prior approval of a Probation and Parole Officer and treatment clinician.” Wilfong fails to explain how the condition is unconstitutional except to question the fact that it applies to relationships with adults. Wil-fong apparently implies that it is over-broad because he was convicted of sexual abuse of a minor.

In Krebs v. Schwarz, the Court upheld as pot overbroad a probation condition prohibiting Krebs, who had been convicted for sexual assault of his daughter, from entering into any dating, intimate, or sexual relationship with any person without first notifying and obtaining approval from his probation officer. The Court noted that the condition only minimally interfered with Krebs’s constitutional right to privacy since it did not prohibit intimate relationships, but only required that he obtain approval for them. Second, the Court found that the condition furthered the goals of probation. The Court stated that the condition served to protect the public by allowing the probation officer to inform Krebs’s potential partners of his sexual criminal background for both their own protection, and for the protection of any children to whom they might be connected. The condition also allowed the probation officer to verify the mental capacity of potential partners who might be vulnerable to manipulation by Krebs. The Court deemed the condition rationally related to Krebs’s rehabilitation by forcing him to confront and to admit to his sexually deviate behavior. It concluded that the condition was narrowly drawn and reasonably related to his rehabilitation. Similarly, we conclude that the condition requiring Wilfong to obtain approval from his probation officer and treatment clinician before establishing a dating, intimate, or sexual relationship with an adult is not unconstitutionally overbroad since it is sufficiently tailored and reasonably related to the purpose of supervisory release.

2. Sexually arousing materials

The second condition challenged by Wilfong prohibits him from possessing “any sexually arousing materials, to include videos, magazines, books, games, sexual devices or aids, or any material which depicts partial or complete nudity or sexually explicit language.” The condition also prohibits Wilfong from “visit[ing] strip joints, adult bookstores, motels which supply adult movies, or businesses which sell sexual devices or aids_” While this condition affects the exercise of Wilfong’s First Amendment rights, a supervisory re-leasee does not have an unqualified First Amendment right to sexually-stimulating or sexually-oriented materials. While the term “sexually arousing materials” is arguably ambiguous, it should be construed in relationship to the remainder of the provision, which mentions nudity and establishments catering to purely sexually-stimulating interests. We conclude that a commonsense reading of this condition provides sufficient precision to defeat a vagueness challenge.

With respect to overbreadth, it is a legitimate concern that exposure to sexually-arousing or sexually-orientated materials may contribute to sexual deviancy or the possibility of future sexually-abusive behavior. Accordingly, reducing access to sexually-arousing or sexually-oriented materials furthers the goals of rehabilitation, deterrence, and public safety in connection with sexual offenders. In addition, the condition is narrowly tailored by providing specific examples of the types of materials and locations covered by the provision. As a result, it is neither unconstitutionally vague nor overbroad.

3. Presence at locations where children congregate

The third condition states that Wilfong will not “reside near, visit, or be in or about parks, schools, day care centers, swimming pools, beaches, theaters, or other places where children congregate without advance approval of [his probation officer].” This condition affects Wilfong’s First Amendment right of association and his protected liberty interest in freedom of movement.

In Carswell v. State, Carswell was prohibited from residing near “any area where children congregate.” The Court held that this phrase was void-for-vagueness for failing to state any predictable standard for identifying in advance the places near which Carswell was forbidden to reside. It stated that children congregate in numerous varying locations and Carswell’s place of residence should not be subject to the whim of local children and where they might choose to gather. However, the Court implied that any vagueness problem could be cured if the condition were more precise by identifying “specific places such as schoolyards, playgrounds and the like where children can be expected to congregate as a usual thing.”

Similarly, in State v. Simonetto, the Court upheld a probation condition that prohibited Simonetto from going to places where children might congregate, including, but not limited to schools, day care centers, playgrounds, parks, beaches, pools, shopping malls, theaters, or festivals, without approval from his probation officer. The Court noted that Simonetto was not absolutely prohibited from going to places where a child might be.

Rather, he may not go at will to those areas where commonsense tells us that children are likely to gather. The court’s list — schools, day care centers, playgrounds, parks, beaches, pools, shopping malls, theaters and festivals— while not exhaustive, was certainly extensive enough to give Simonetto a clear idea of where he could not go. And should he wish to go to one of the listed locations, he can — he just has to get prior approval from his agent.

In United States v. Paul, the Court held that a supervised-release condition instructing Paul to “avoid places, establishments, and areas frequented by minors” was not unconstitutionally vague:

Certainly, it would be impossible to list within the text of Paul’s condition every specific location that he is prohibited from frequenting during the term of his release. Sentencing courts must inevitably use categorical terms to frame the contours of supervised release conditions. Such categorical terms can provide adequate notice of prohibited conduct when there is a commonsense understanding of what activities the categories encompass. Indeed, it is well established that the requirement of reasonable certainty “does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.”

In addition, the courts have recognized that supervisory-release conditions which prohibit releasees convicted of child-sexual abuse from going to places where children congregate are reasonably designed to further the goals of supervisory release by reducing their access to children. This type of condition protects children from possible future abuse and assists in the offender’s rehabilitation by removing the temptation presented to sexual offenders and reducing the opportunity for additional offenses.

In the case before us, we hold that the condition prohibiting Wilfong from residing near, visiting or being in or about parks, schools, day care centers, swimming pools, beaches, theaters, or other places where children congregate without advance approval of his probation officer is not unconstitutionally vague or overbroad. A commonsense reading of the provision suggests an interplay between the several places listed and the reference to locations where children congregate. Thus, it is sufficiently precise to satisfy the vagueness requirement. Wilfong was convicted of sexual abuse of a minor; thus, the restriction prohibiting him from going to places where he would likely have access to often unsupervised groups of children is reasonably related to the state’s interest in protection of the public and the rehabilitation of Wilfong. Further, the condition is narrowly drawn by being limited to certain locations where children can be expected to congregate.

4. Possession of items that attract children

The fourth condition provides that Wil-fong is “not allowed to possess items on [his] person or property that attract[ ] children.” This condition impinges on First Amendment rights of association and expression, and the due process interest in property under the Fourteenth Amendment.

Wilfong attacks this provision as unconstitutionally vague for failing to provide him fair notice of what behavior would constitute a violation of the condition. We hold that the condition is sufficiently precise to allow either him, or enforcement personnel, to distinguish between prohibited and innocent conduct. A supervisory-release condition may use general categories. It is reasonable to assume certain items may be attractive to most children— e.g., toys.

This condition is not overbroad by not being narrowly tailored to serve the purposes of supervisory release. While this condition potentially prohibits the possession of a large number of common items useful or attractive to adults, e.g., video games, sports equipment, computers, televisions, or even certain foods, the government interests in rehabilitation and protection of children is served by reducing the possibility of Wilfong’s access to children who may be attracted to these items. A commonsense reading of the provision requires that the item attract children. This would obviously include items visible in Wilfong’s yard such as a basketball goal or a trampoline, but not items in his home such as a television or food.

5. Participation in Sexual Treatment Program

Finally, Wilfong contends that the supervisory-release condition requiring him to “attend, participate, and successfully complete a Sex Offender Treatment Program” violates due process rights. Since admission or acknowledgement of having committed a sexually-offensive act is required in order to obtain certification as having successfully completed the Sexual Offender Program, Wilfong asserts that this condition is inconsistent with his Alford plea, which allows a defendant to plead guilty to an offense while maintaining his innocence and not admitting guilt. The courts have rejected a similar argument involving the ability of the court to revoke probation for an offender’s refusal to acknowledge the commission of the offense as part of his sexual-offender treatment program.

For example, in Faraday, supra, the Court held that the imposition of a requirement that the defendant admit guilt in order to successfully complete a sexual-offender treatment program was not inconsistent with the entry of an Alford plea. “The entry of a guilty plea under the Alford doctrine carries the same consequences as a standard plea of guilty. By entering such a plea, a defendant may be able to avoid formally admitting guilt at the time of sentencing, but he nonetheless consents to being treated as if he were guilty with no assurances to the contrary.” Since the trial court’s acceptance of Faraday’s Alford plea did not imply that he could unconditionally maintain his innocence for any and all purposes, the Court stated that his probation could be revoked for his refusing to admit guilt in conjunction with his treatment.

In State ex rel. Warren v. Schwarz, the trial court ordered Warren to complete counseling as a condition of probation following his Alford plea to first-degree sexual assault of a minor. Warren challenged the revocation of his probation for violating the counseling condition after he refused to admit guilt and was therefore discharged from the treatment program. The appellate court rejected Warren’s contention that revoking his probation based upon his denial of guilt in the treatment program was a violation of his due process rights when his conviction was pursuant to an Alford plea. The Court noted that the Department of Corrections was authorized to require sexual offenders to admit responsibility for their offenses as part of their treatment and the requirement was an appropriate condition of probation in order to serve the goals of rehabilitating the probationers and protecting the public. It held that the trial court’s acceptance of Warren’s Alford plea did not limit the requirements that the Department of Corrections could lawfully impose on Warren, and that his right to due process was not violated by requiring him to admit responsibility for the sexual assault as a condition of probation. The Court stated, “An Alford plea does not imply a promise or assurance of anything. More accurately stated, an Alford plea, if accepted by the trial court, permits a conviction without requiring an admission of guilt and while permitting a protestation of innocence. There is nothing inherent in the nature of an Alford plea that gives a defendant any rights, or promises any limitations, with respect to the punishment imposed after the conviction.” We agree with the reasoning of these courts and likewise reject Wilfong’s assertion that due process prohibits the imposition of a condition of conditional discharge that he successfully complete the Sexual Offender Treatment Program, or that as a part of that program, he admit guilt or commission of the offenses for which he was convicted pursuant to his Alford plea.

In conclusion, we hold that the sentence of a mandatory post-incarceration, three-year period of conditional discharge for sexual offenders as required by KRS 532.04B is not unconstitutional as a violation of the separation of powers doctrine. In addition, the conditions of conditional discharge challenged by Wilfong do not violate his constitutional due process rights. Finally, the condition that he successfully complete the Sexual Offender Treatment Program is not inconsistent with his Alford plea and does not violate his due process rights.

For the foregoing reasons, the judgment of the Meade Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Revised Statutes (KIRS) 510.060.

      . KRS 532.043 provides as follows:
      (1) In addition to the penalties authorized by law, any person convicted of, pleading guilly to, or entering an Alford plea to a felony offense under KRS Chapter 510, KRS 529.030, 530.020, 530.064, 531.310 or 531.320 shall be subject to a period of conditional discharge following release from:
      (a) Incarceration upon expiration of sentence; or
      (b) Completion of parole.
      (2) The period of conditional discharge shall be three (3) years.
      (3) During the period of conditional discharge, the defendant shall:
      (a) Be subject to all orders specified by the Department of Corrections; and
      (b) Comply with all education, treatment, testing, or combination thereof required by the Department of Corrections.
      (4) Persons under conditional discharge pursuant to this section shall be subject to the supervision of the Division of Probation and Parole.
      (5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing to the Commonwealth’s attorney in the county of conviction. The Commonwealth's attorney may petition the court to revoke the defendant’s conditional discharge and reincar-cerate the defendant as set forth in KRS 532.060.
      (6)The provisions of this section shall apply only to persons convicted, pleading guilty, or entering an Alford plea after July 15, 1998.
      Further, KRS 532.060(3) provides as follows: For any felony specified in KRS Chapter 510, KRS 530.020, 530.064, or 531.310, the sentence shall include an additional three (3) year period of conditional discharge which shall be added to the maximum sentence rendered for the offense. During this period of conditional discharge, if a defendant violates the provisions of conditional discharge, the defendant may be reincarcer-ated for:
      (a) The remaining period of his initial sentence, if any is remaining; and
      (b) The entire period of conditional discharge, or if the initial sentence has been served, for the remaining period of conditional discharge.

      . KRS 530.020.

      . 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . Wilfong notified the Attorney General of the constitutional challenge pursuant to Kentucky Rules of Civil Procedure (CR) 24.03 and KRS 418.075(1), but the Attorney General declined to respond.

      . Martinez v. Commonwealth, Ky., 72 S.W.3d 581, 584 (2002).

      . Cornelison v. Commonwealth, Ky., 52 S.W.3d 570, 572 (2001).

      . Cornelison, 52 S.W.3d at 572-73 (quoting Stephens v. State Farm Mutual Auto Insurance Co., Ky., 894 S.W.2d 624, 626 (1995)).

      . United States v. Layne, 324 F.3d 464, 471 (6th Cir.2003)(stating that constitutional challenges to sentencing are legal issues to be reviewed de novo); Moore v. Ward, Ky., 377 S.W.2d 881, 883 (1964).

      . See, e.g., Loving v. United States, 517 U.S. 748, 757, 116 S.Ct. 1737, 1743, 135 L.Ed.2d 36 (1996); and Manns v. Commonwealth, Ky., 80 S.W.3d 439 (2002).

      . “The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”

      . "No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”

      . "The Supreme Court shall have the power to prescribe rules governing its appellate jurisdiction, rules for the appointment of commissioners and other court personnel, and rules of practice and procedure for the Court of Justice. The Supreme Court shall, by rule, govern admission to the bar and the discipline of members of the bar.”

      . See generally Legislative Research Commission By and Through Prather v. Brown, Ky., 664 S.W.2d 907, 911 (1984).

      . See Arroyo v. United States, 359 U.S. 419, 424, 79 S.Ct. 864, 867, 3 L.Ed.2d 915 (1959)(stating that " '[i]t is the legislature, not the Court, which is to define a crime, and ordain its punishment’ ” (quoting United States v. Wiltberger, 5 Wheat. 76, 18 U.S. 76, 95, 5 L.Ed. 37 (1820))); Cornelison, 52 S.W.3d at 573 (stating that "[t]he discretion to define the level of harm and the appropriate punishment is within the purview of the Legislature, not this Court”); and Mullins v. Commonwealth, Ky.App., 956 S.W.2d 222, 223 (1997)(stating that ''the legislature has the power to designate what is a crime and the sentences for violations thereof”).

      . State v. Schwartz, 628 N.W.2d 134, 139 (Minn.2001); State v. Horn, 226 Wis.2d 637, 594 N.W.2d 772, 111 (1999).

      . Workman v. Commonwealth, Ky., 429 S.W.2d 374, 377 (1968)(stating what constitutes adequate punishment is reserved to the legislature as long as it is not violative of the cruel and unusual punishment provision of the Constitution).

      . People v. Miller, 202 Ill.2d 328, 269 Ill.Dec. 503, 781 N.E.2d 300, 306 (2002).

      . Bartrug v. Commonwealth, Ky.App., 582 S.W.2d 61, 63 (1979)(stating that the trial court's discretion in sentencing is controlled by the mandatory term in sentencing statute).

      . 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).

      . Id. 500 U.S. at 467, 111 S.Ct. 1919 (quoting Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978)).

      . See, e.g., United States v. Van Horn, 798 F.2d 1166, 1168 (8th Cir.l986)(stating that Congress need not provide range of options for the court and can establish a mandatory set sentence); People v. Hill, 199 Ill.2d 440, 264 Ill.Dec. 670, 771 N.E.2d 374 (2002)(stat-ing that mandatory additional 15-year sentence for armed burglary did not violate separation of powers); State v. Johnson, 350 S.C. 543, 567 S.E.2d 486 (App.2002)(upholding mandatory life imprisonment without parole under state two-strikes law against separation of powers challenge); People v. Boyd, 23 P.3d 1242 (Colo.App.2001)(stating that sentencing court was required to impose mandatory five-year parole term); State v. De La Cruz, 302 S.C. 13, 393 S.E.2d 184 (1990)(rejecting argument that mandatory sentence for trafficking in cocaine of 25 years without suspension of sentence or possibility of probation violated separation of powers by depriving sentencing court of discretion); and Commonwealth v. Waters, 334 Pa.Super. 513, 483 A.2d 855 (1984)(stating that mandatory life sentence for first-degree murder did not violate separation of powers).

      . Wilson v. Kentucky Transportation Cabinet, Ky., 884 S.W.2d 641, 646 (1994).

      . Owens v. Clemons, Ky., 408 S.W.2d 642, 645 (1966).

      . Commonwealth, ex rel. Cowan v. Wilkinson, Ky., 828 S.W.2d 610, 614 (1992).

      . 501 U.S. 957, 998, 111 S.Ct. 2680, 2703, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring).

      . See Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984)(recognizing that there was no federal constitutional right to jury sentencing even for capital offenses); and Perry v. Commonwealth, Ky., 407 S.W.2d 714, 715 (1966)(hold-ing that there was no right to jury sentencing under Kentucky Constitution § 7).

      . See also Kentucky Rules of Criminal Procedure (RCr) 9.84(1).

      . See generally Boone v. Commonwealth, Ky., 780 S.W.2d 615 (1989)(holding that defendant has due process right to introduce evidence on minimum parole eligibility in sentencing phase).

      . Kohler v. Benckart, Ky., 252 S.W.2d 854, 858 (1952)(stating that "[o]nly those [persons] who are prejudiced by an unconstitutional law can complain of it”).

      . KRS 532.043(3).

      . See Kentucky Corrections Policies and Procedures (CPP) 27-30-02.

      . See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)(recogniz-ing that due process rights attach to probation revocation proceedings).

      . United States v. Twitty, 44 F.3d 410, 412 (6th Cir.1995).

      . United States v. Gallo, 20 F.3d 7, 11 (1st Cir.1994).

      . See Belle Maer Harbor v. Charter Township of Harrison, 170 F.3d 553, 556 (6th Cir.1999); and State v. Gaffney, 147 N.H. 550, 795 A.2d 243, 246 (2002).

      . Coleman v. DeWitt, 282 F.3d 908, 914 (6th Cir.2002); Commonwealth v. Kash, Ky.App., 967 S.W.2d 37, 42 (1997).

      . See Grayned v. City of Rockford, 408 U.S. 104, 108, 108-15, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972); and Humanitarian Law Project v. United States Department of Justice, 352 F.3d 382 (9th Cir.2003).

      . See generally Martin v. Commonwealth, Ky., 96 S.W.3d 38 (2003).

      . See United States v. Morison, 844 F.2d 1057, 1070 (4th Cir.1988).

      . See Grayned, 408 U.S. at 114, 92 S.Ct. 2294.

      . Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

      . Kolender, 461 U.S. at 357, 103 S.Ct. 1855.

      . Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974)(hold-ing that statute reaching expression sheltered by the First Amendment must have greater degree of specificity than in other contexts).

      . United States v. Haun, 90 F.3d 1096, 1101 (6th Cir.1996); O’Leary v. Commonwealth, Ky., 441 S.W.2d 150, 155 (1969)(stating that a penal statute need not include every exculpatory circumstance).

      . See Grayned, 408 U.S. at 110, 92 S.Ct. 2294; and Kash, 967 S.W.2d at 43 (stating that "simply because a criminal statute could have been written more precisely does not mean the statute as written is unconstitutionally vague”).

      . See, e.g., Commonwealth v. Foley, Ky., 798 S.W.2d 947, 951 (1990)(stating that analysis of constitutional vagueness includes inquiry as to "whether a person disposed to obey the law could determine with reasonable certainty from the language used whether contemplated conduct would amount to a violation”) overruled on other grounds hy Martin, 96 S.W.3d at 38; Hardin v. Commonwealth, Ky., 573 S.W.2d 657, 660 (1978)(applying a "man on the street approach”); and Sasaki v. Commonwealth, Ky., 485 S.W.2d 897, 901 (1972)(stating that " '[t]he accepted test in determining the required precision of statutory language imposing criminal liability is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices’ ” (quoting Anderson v. United States, 215 P.2d 84 (6th Cir.1954))).

      . See Kolender, 461 U.S. at 358, 103 S.Ct. 1855.

      . See, e.g., City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999).

      . See House v. Commonwealth, Ky.App., 83 S.W.3d 1, 5 (2001); and State Board for Elementary & Secondary Education v. Howard, Ky., 834 S.W.2d 657, 662 (1992).

      . See Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973).

      . New York v. Ferber, 458 U.S. 747, 771, 102 S.Ct. 3348, 3362, 73 L.Ed.2d 1113 (1982); Martin, 96 S.W.3d at 57 n. 14.

      . Virginia v. Hicks, 539 U.S. 113, 123 S.Ct. 2191, 2198, 156 L.Ed.2d 148 (2003).

      . See, e.g., Grayned, 408 U.S. at 110, 92 S.Ct. 2294 (noting that statute infringing on First Amendment rights challenged as overbroad must be narrowly tailored to further significant government interest).

      . See Ferber, 458 U.S. at 769 n. 24, 102 S.Ct. 3348; Broadrick, 413 U.S. at 613, 93 S.Ct. 2908; and Martin, 96 S.W.3d at 56.

      . See, e.g., United States v. Loy, 237 F.3d 251, 269 (3rd Cir.2001); Oyoghok v. Municipality of Anchorage, 641 P.2d 1267 (Alaska Ct.App.1982); People v. Lopez, 66 Cal.App.4th 615, 78 Cal.Rptr.2d 66 (1998); State v. Kessler, 199 Ariz. 83, 13 P.3d 1200 (App.2000); and Neil P. Cohen, The Law of Probation and Parole (2nd ed. 1999).

      . See United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 591, 151 L.Ed.2d 497 (2001); Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)(stating that probationer’s privacy interests are less than that of public at large); United States v. Vincent, 167 F.3d 428, 430 (8th Cir.1999); United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir.1975); and State v. Faraday, 268 Conn. 174, 842 A.2d 567, 574 (2004).

      . See, e.g., United States v. Lee, 315 F.3d 206, 214 (3d Cir.2003); Loy, 237 F.3d at 264-65; State v. Lo, 228 Wis.2d 531, 599 N.W.2d 659, 661 (1999); People v. Lopez, 66 Cal.App.4th 615, 78 Cal.Rptr.2d 66, 75 (Cal.App.1998); People v. Reinertson, 178 Cal.App.3d 320, 223 Cal.Rptr. 670, 672 (1986).

      . United States v. Gallo, 20 F.3d 7, 12 (1st Cir.1994).

      . See United States v. Myers, 864 F.Supp. 794, 800 (N.D.Ill.1994); Saidi v. State, 845 So.2d 1022, 1028 (Fla.App.2003); and Commonwealth v. Pike, 428 Mass. 393, 701 N.E.2d 951, 959 (1998).

      . See, e.g., Griffin, 483 U.S. at 875, 107 S.Ct. 3164; United States v. York, 357 F.3d 14 (1st Cir.2004); United States v. Peete, 919 F.2d 1168, 1181 (6th Cir.1990); Commonwealth v. Williams, 60 Mass.App.Ct. 331, 801 N.E.2d 804, 805 (2004); and Woodson v. State, 864 So.2d 512 (Fla.App.2004).

      . See, e.g., Loy, 237 F.3d at 264 — 65 (stating that supervisory-release conditions affecting First Amendment rights must be narrowly tailored and directly related to rehabilitation and protecting public); United States v. Crandon, 173 F.3d 122, 128 (3d Cir.1999)(same); People v. Garcia, 19 Cal.App.4th 97, 23 Cal.Rptr.2d 340, 342 (1993); and People v. Bauer, 211 Cal.App.3d 937, 260 Cal.Rptr. 62, 65 (1989).

      . Broadrick, 413 U.S. at 612, 93 S.Ct. 2908.

      . See, e.g., Kessler, 13 P.3d at 1205.

      . See Loy, 237 F.3d at 264-65; State v. Wright, 137 Ohio App.3d 737, 739 N.E.2d 1172, 1174 (2000)(rejecting argument that probationer could not challenge vagueness and .overbreadth of condition prior to being charged with violation); Cf. Mangarella v. State, 117 Nev. 130, 17 P.3d 989 (2001)(in-volving direct appeal from judgment on guilty ■plea challenging mandatory condition of probation as unconstitutionally vague and over-broad).

      . See Oyoghok, 641 P.2d at 1267.

      . 212 Wis.2d 127, 568 N.W.2d 26 (1997).

      . Krebs, 568 N.W.2d at 28.

      . Id. at 29.

      . Id. at 28.

      . Id. at 29. See also Smith v. State, 779 N.E.2d 111 (Ind.App.2002)(upholding condition requiring sexual offender to notify probation officer of any dating, intimate or sexual relationship was reasonable to protect children who Smith might gain access to through adult relationships).

      . See United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir.2002).

        .See, e.g., United States v. Phipps, 319 F.3d 177 (5th Cir.2003)(finding condition prohibiting possession of "sexually oriented or sexually stimulating materials” not constitutionally vague); United States v. Bee, 162 F.3d 1232, 1234-35 (9th Cir.1998) (finding condition prohibiting possession of "sexually stimulating or sexually oriented materials” not a violation of First Amendment). But see Fitzgerald v. State, 805 N.E.2d 857 (Ind.App.2004)(finding condition prohibiting possession of pornographic or sexually-explicit materials or any material which depicts partial or complete nudity or sexually-explicit language unconstitutionally vague).

        .See, e.g., Smith, 779 N.E.2d at 118 (restricting sexual offender’s exposure to sexually-explicit material while on supervisory release protects children from possible endangerment and would likely aid supervisory releasee's rehabilitation). See also United States v. Rearden, 349 F.3d 608 (9th Cir.2003)(finding supervisory-release condition prohibiting possession of "materials depicting sexually explicit conduct" not unconstitutionally vague or overbroad); and Amatel v. Reno, 156 F.3d 192 (D.C.Cir.1998)(discussing evidence on negative effect of exposure of prison inmates to sexually-explicit materials on their rehabilitation).

      . See, e.g., Morales, 527 U.S. at 53, 119 S.Ct. 1849 (discussing liberty interest in freedom of movement).

      . 721 N.E.2d 1255 (Ind.App.1999).

      . Carswell, 721 N.E.2d at 1260.

      . Id.

      . Id.

      . 232 Wis.2d 315, 606 N.W.2d 275 (1999).

      . Simonetto, 606 N.W.2d at 277-78. See also Britt v. State, 775 So.2d 415 (FIa.App.2001)(hoIding condition that prohibited probationer from living near or working at a "school, daycare center, park, playground, or other place where children regularly congregate” was not unconstitutionally vague).

      . 274 F.3d 155 (5th Cir.2001).

      . Id. at 167 (quoting Birzon v. King, 469 F.2d 1241, 1243 (2nd Cir.1972)).

      . See, e.g., Carswell, 721 N.E.2d at 1260; Simonetto, 606 N.W.2d at 277-78; United States v. Ristine, 335 F.3d 692, 696-97 (8th Cir.2003); and State v. Riles, 135 Wash.2d 326, 957 P.2d 655, 665 (1998).

      .For instance, the condition could cover items such as a television, books, newspapers and literature. See also People v. Beach, 147 Cal.App.3d 612, 195 Cal.Rptr. 381, 387 (1983)(discussing impact of probation condition on right to acquire, own, enjoy, and dispose of property guaranteed by the Fourteenth Amendment).

      . 842 A.2d at 567.

      . Id. at 588.

      .211 Wis.2d 710, 566 N.W.2d 173 (App. 1997).

      . Sckwarz, 566 N.W.2d at 178.

      . Schwarz, 566 N.W.2d at 177. See also People v. Birdsong, 958 P.2d 1124, 1130 (Colo.1998); and State v. Jones, 129 Idaho 471, 926 P.2d 1318 (App.1996).


source: Caselaw Access Project

author: VANMETER, Judge.

license: Public Domain

text:
    Christopher DONATELLI, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-CA-000984-MR.
    Court of Appeals of Kentucky.
    Feb. 25, 2005.
    Discretionary Review Denied by Supreme Court Nov. 16, 2005.

      Darrell A. Cox, Covington, KY, for appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Courtney J. Hightower, Assistant Attorney General, Frankfort, KY, for Appellee.
    Before SCHRODER, TAYLOR, and VANMETER, Judges.
   OPINION

VANMETER, Judge.

If a criminal defendant is represented by a lawyer who also represents a codefen-dant, that criminal defendant must be informed of the possible conflict of interest by the trial judge and must sign a waiver of the possible conflict. The failure to do so, however, does not necessitate reversal, but requires a defendant to demonstrate an actual conflict of interests. In this case, we hold that the defendant, Christopher Donatelli, has failed to do so, and we therefore affirm.

The facts of this case are relatively straightforward. On November 6, 2003, Donatelli and three other individuals, Gerding, Knox, and Howard, were arrested after hours on the premises of a junkyard. All four were charged with theft by unlawful taking over $300 and possession of burglar’s tools. In addition, Do-natelli was charged with persistent felony offender (PFO) first degree. One public defender was appointed to represent Do-natelli, Gerding and Knox. The fourth co-defendant, Howard, retained separate counsel. Prior to Donatelli’s and Gerd-ing’s March 29, 2004 trial, Knox pled guilty to felony theft, and Howard pled guilty to misdemeanor theft. At trial, all four testified consistently that Knox and Howard had removed all the stolen parts from the cars at the junkyard, and that Donatelli and Gerding were just tagging along and did not participate in the theft. The jury convicted Donatelli of both felony theft and possession of burglar’s tools, and he entered a guilty plea to PFO first degree. On May 5, 2004, Donatelli was sentenced to five years for theft by unlawful taking over $300, enhanced to ten years by PFO first degree, and one year for possession of burglar’s tools, with the sentence running concurrent. This appeal follows.

The sole issue advanced by Donatelli on this appeal is that the failure of the trial court to comply with the requirements of RCr 8.30(1) necessitates reversal of his conviction. This rule provides:

If the crime of which the defendant is charged is punishable by a fine of more than $500, or by confinement, no attorney shall be permitted at any stage of the proceedings to act as counsel for the defendant while at the same time engaged as counsel for another person or persons accused of the same offense or of offenses arising out of the same incident or series of related incidents unless (a) the judge of the court in which the proceeding is being held explains to the defendant or defendants the possibility of a conflict of interests on the part of the attorney in that what may be or seem to be in the best interests of one client may not be in the best interests of another, and (b) each defendant in the proceeding executes and causes to be entered in the record a statement that the possibility of a conflict of interests on the part of the attorney has been explained to the defendant by the court and that the defendant nevertheless desires to be represented by the same attorney.

In this case, the record contains no indication that the requirements of this rule were followed. However, in Kirkland v. Commonwealth, the Kentucky Supreme Court held that the failure of a circuit court to comply with the requirements of RCr 8.30(1) is “not presumptively prejudicial and does not warrant automatic reversal. A defendant must show a real conflict of interest in order to obtain reversal.”

Donatelli argues that the holding of Kirkland should be limited to its facts, in that Kirkland involved codefendants who were represented by two separate public defenders who worked out of the same office. His argument is that factually this case is similar to Peyton v. Commonwealth, in which the Kentucky Supreme Court adopted a “bright-line” rule by which the failure to comply with RCr 8.30(1) was “presumptively prejudicial.” The problem with Donatelli’s otherwise persuasive argument is that while the Kentucky Supreme Court in Kirkland initially seemed to make a factual distinction between Peyton and Kirkland, it ultimately and unequivocally held that Peyton v. Commonwealth and Trulock v. Commonwealth are overruled. Further, it reinstated the decisions of Smith v. Commonwealth and Conn v. Commonwealth. Since these latter two cases involved code-fendants who, similar to Donatelli, were represented by one lawyer, we conclude that the court in Kirkland did not intend its holding to be limited factually, but instead intended to reinstate a case-by-case analysis, such that a violation of RCr 8.30 “which does not result in any prejudice to the defendant, should not mandate automatic reversal.”

Here, the record discloses that two of Donatelli’s codefendants, Knox and Harding, accepted responsibility for the crime, pled guilty, and testified that Donatelli and the remaining codefendant, Gerding, did not participate. Donatelli’s trial counsel at no point advised the circuit court that he had a conflict. Donatelli advances no argument as to any manner in which he was prejudiced. The jury simply did not believe the testimony of the defendants. Although Donatelli speculates that a subsequently — sentenced codefendant might implicate him as a full participant in the crime, there is nothing in the record to show that such did or will occur. Instead, the record indicates that all of the code-fendants testified consistently. As Dona-telli has demonstrated no real conflict of interest, it follows that the failure of the trial court to comply with the requirements of RCr 8.30(1) was harmless error.

Commonwealth v. Holder does not require a different result. In Holder, one of the three codefendants made out-of-court statements admitting guilt and implicating the other two, who maintained their innocence. The court found a “built-in conflict of interest” in such a situation. That situation does not exist in the instant case however, as all four codefendants consistently maintained the same version of events, including that Donatelli and Gerd-ing were not gufity.

The judgment of the Campbell Circuit Court is affirmed.

ALL CONCUR.

      . RCr 8.30(1).

      . KRS 514.030.

      . KRS 511.050.

      . KRS 532.080.

      .By Order entered May 17, 2004, the Campbell Circuit Court dismissed with prejudice the misdemeanor charge of Possession of Burglar’s Tools.

      . The Commonwealth argues that Donatelli failed to preserve this issue for review. Authority exists, however, that a defendant may raise the issue on appeal for the first time. See Commonwealth v. Holder, 705 S.W.2d 907, 909 (Ky.1986).

      . 53 S.W.3d 71 (Ky.2001).

      . Id. at 75.

      . 931 S.W.2d 451 (Ky.1996).

      . Id. at 453.

      . 620 S.W.2d 329 (Ky.App.1981).

      . 53 S.W.3d at 75.

      . 669 S.W.2d 527 (Ky.1984).

      . 791 S.W.2d 723 (Ky.1990).

      . 53 S.W.3d at 75.

      . 705 S.W.2d 907 (Ky.1986).

      . Id. at 908.


author: RONNIE L. WHITE, Judge.

text:
    STATE of Missouri, Respondent, v. John W. VANDEVERE, Appellant.
    No. SC 86802.
    Supreme Court of Missouri, En Banc.
    Oct. 18, 2005.
    Rehearing Denied Nov. 22, 2005.

      Randy S. Anglen, Branson, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Asst. Atty. Gen., Jefferson City, for Respondent.
   RONNIE L. WHITE, Judge.

I.

John W. Vandevere (Appellant) challenges his conviction for sexual abuse alleging the trial court erred when finding sufficient evidence that he had sexual contact with the victim by use of forcible compulsion. This Court has jurisdiction, Mo. Const, art. V, sec. 10. The judgment is affirmed.

II.

In reviewing the sufficiency of the evidence in a court-tried criminal case, the appellate court’s role is limited to a determination of whether the state presented sufficient evidence from which a trier of fact could have reasonably found the defendant guilty. “The Court examines the evidence and inferences in the light most favorable to the verdict, ignoring all contrary evidence and inferences.”

“A person commits the crime of sexual abuse if he subjects another person to sexual contact by the use of forcible compulsion.” “Sexual contact means any touching of the genitals or anus of any person, or the breast of any female person, or any such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person.” Forcible compulsion is defined as: “physical force that overcomes reasonable resistance,” or “a threat, express or implied, that places a person in reasonable fear of death, serious physical injury or kidnapping of himself or another person.” “Physical force is simply force applied to the body.” “The force involved need not come after the victim has physically resisted.” “Rather, the force used must be calculated to overcome the victim’s resistance.”

“Reasonable resistance is that which is suitable under the circumstances.” “Certainly, the law does not require or expect utmost resistance to a sexual assault when it appears that such resistance would be futile or would provoke a more serious injury.” “In determining if the force used is sufficient to overcome reasonable resistance, the court does not look to any single fact but to the totality of the circumstances.” “Among the factors taken into account in considering the totality of the circumstances are whether violence or threats precede the sexual act; the relative ages of the victim and accused; the atmosphere and setting of the incident; the extent to which the accused was in a position of authority, domination, and control over the victim; and whether the victim was under duress.” “Each case necessarily turns on its own facts.”

III.

The evidence adduced at trial, when reviewed in the light most favorable to the verdict, revealed the following: Appellant met the victim at a national competition sponsored by the organization “American Kids” that was held in Branson, Missouri. Appellant was operating a souvenir booth located in close proximity to where the victim and her mother were selling flowers. After initiating several conversations with the victim and her mother, Appellant obtained the mother’s consent to have the victim model clothing for a dance group his wife directed.

To the victim’s surprise, Appellant took her to his hotel room for the modeling, rather than a clothing store or other public place as she had anticipated. At the hotel, Appellant took the victim’s hand and led her to his room, and once inside, he chained and deadbolted the door. He then produced some clothing from his suitcase for the victim to model and instructed her to change clothing in the bathroom. Each time she emerged from the bathroom in a different outfit, Appellant grasped her hand and jerked her arm to pull her toward him and either sat her on his knee or else stood her between his legs. Once Appellant positioned her, he rubbed his hand from her neck all the way down her back and over her buttocks. He also rubbed her thighs and nibbed her vagina through her clothing. He exposed her breasts and fondled and kissed them.

The victim testified that when they arrived at the hotel, she “was kind of shocked,” and that she was “trying to figure out what we were doing and that’s when he grabbed my hand and we started walking.” She further testified that she was “nervous” and “didn’t know what was going on” when Appellant grabbed and touched her in the locked room. She stated that she cried when he touched her and kissed her breasts, but she didn’t say anything because she was “really scared” and “didn’t know what was going on.”

Additional testimony revealed that, before leaving the hotel, the Appellant gave the victim some of the clothing she tried on, kissed her on her mouth and instructed her not to tell anyone what had happened. On the way back to the competition, Appellant reportedly invited the victim back to his hotel room so he could help her with her “self-esteem,” and once back at their vending booths Appellant kissed the victim on the back of her neck, again without her consent. Soon after, the victim reported Appellant’s actions to the local authorities.

IV.

Appellant does not contest that the sexual contact element of the crime was established beyond a reasonable doubt. His sole argument is that the evidence is insufficient to prove that this contact was the result of “forced compulsion.”

At the time of the alleged abuse, Appellant was fifty-eight years old while the victim was sixteen years old. He was approximately six feet tall and weighed 220 pounds, while the victim was five feet three inches tall and weighed 103 pounds. Appellant used his age and position as a participant in a national child’s competition to cast the image of being that of a responsible adult, an authority figure to children, an authority worthy of a mother’s consent to allow interaction with her child.

Appellant, to the victim’s surprise, took the victim to a private hotel room and locked her inside with both a deadbolt and chain lock eliminating her path of retreat. Appellant physically pulled the victim to his lap multiple times and engaged in the sexual contact without her consent. The victim cried during the sexual contact, indicating that she was under duress. Appellant, because of his size and the isolated location of the crime, dominated and controlled the victim. This victim was too young, too frightened and too small to mount a greater level of resistance, and more resistance may have proved futile or could have provoked a more serious injury. Under the totality of the circumstances of this case, there is sufficient evidence that the physical force exerted by Appellant was sufficient to overcome the victim’s reasonable resistance.

V.

The judgment is affirmed.

All concur.

      . All statutory references are to RSMo 2000 unless otherwise noted.

      . State v. Niederstadt, 66 S.W.3d 12, 13-14 (Mo. banc 2002).

      . Id.

      . Section 566.100.1.

      . Section 556.061(30).

      . Section 556.061(12).

      . Niederstadt, 66 S.W.3d at 15.

      . Id.

      . Id

      . State v. Spencer, 50 S.W.3d 869, 874 (Mo.App.2001).

      . Niederstadt, 66 S.W.3d at 15.

      . Id.

      . Id.

      . Id.


author: MARY R. RUSSELL, Judge.

text:
    Ecclesiastes MATTHEWS, Appellant, v. STATE of Missouri, Respondent.
    No. SC 86784.
    Supreme Court of Missouri, En Banc.
    Oct. 18, 2005.
    Rehearing Denied Nov. 22, 2005.

      Mark A. Grothoff, Office of Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, for Respondent.
   MARY R. RUSSELL, Judge.

Ecclesiastes Matthews (“Movant”) appeals the overruling of his motion for post-conviction relief, filed under Rule 29.15, without an evidentiary hearing. He asserts that, although he requested a Rule 32.03 change of venue at trial, his attorney did not object when the trial court failed to change venue to another county as required by the rule. After an opinion by the Court of Appeals, Eastern District, this Court granted transfer. Mo. Const, art. V, sec. 10. This Court finds that although Movant was entitled to a change of venue to another county, he did not suffer Strickland prejudice from the trial court’s denial of a proper venue change. The judgment of the motion court is affirmed.

I. Facts and Procedural History

Movant was charged with two felony drug offenses in the Marion County Circuit Court, District 2 at Hannibal. Prior to trial, Movant sought a change of venue pursuant to Rule 32.03. Rule 32.03 provides that, upon the filing of a timely application, a movant is entitled to one change of venue as a matter of right if the charges are brought in a county of fewer than 75,000 inhabitants. Marion County has fewer than 75,000 people, but the circuit court is divided into two districts pursuant to section 478.720, RSMo 2000 — District 1 at Palmyra and District 2 at Hannibal. The court sustained Movant’s request for a Rule 32.03 change of venue, but instead of transferring the case to a different county, the court transferred the case from District 2 at Hannibal to District 1 at Palmyra. Movant’s attorney did not object to this venue change and proceeded to trial at the District 1 court in Palmyra.

Movant was convicted at trial and was sentenced as a prior offender to two consecutive 25-year prison terms. Movant filed a Rule 29.15 motion alleging ineffective assistance of counsel and requesting an evidentiary hearing. The motion court overruled Movant’s motion and his request for an evidentiary hearing. Movant appeals.

II. Standard of Review

In reviewing the denial of relief under Rule 29.15, this Court is limited to determining whether the motion court’s findings and conclusions are clearly erroneous. Smulls v. State, 71 S.W.3d 138, 147 (Mo. banc 2002). The motion court’s disposition will only be disturbed if, after a review of the entire record, the appellate court is left with the definite impression that a mistake has been made. Id. A movant is not entitled to an evidentiary hearing unless: (1) the movant pleaded facts, not conclusions, warranting relief; (2) the facts alleged raised matters not refuted by the record; and (3) the matters complained of resulted in prejudice to the movant. Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997). Specifically, when the requested evidentiary hearing involves a claim of ineffective assistance of counsel, the movant must allege unrefuted facts establishing that (1) counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and (2) he was thereby prejudiced. Id.

III. Was Movant entitled to a change of venue to another county?

Movant first asserts that the trial court’s failure to change venue out of Marion County violated Rule 32.03. Rule 32.03 states, in relevant part:

(a) A change of venue shall be ordered in any criminal proceeding triable by a jury pending in a county having seventy-five thousand or fewer inhabitants upon the filing of a written application therefor by the defendant....
(c) If a timely application is filed, the court immediately shall order the case transferred to some other county convenient to the parties....

Rule 32.03 (emphasis added).

The plain language of Rule 32.03(a) provides that a defendant is entitled to a venue change without any showing of cause. Nonetheless, the State argues that sections 508.320 and 508.330 indicate the legislature’s intent that a change from one district to another within Marion County be considered a change of venue. These statutes involve changes of venue for cause. The present case does not involve a change of venue for cause, but, rather, a change of venue as a matter of right under Rule 82.03. Sections 508.320 and 508.330 are, therefore, inapplicable.

Rule 32.03(c) clearly states that the transfer is to be to “some other county.” As such, a transfer to a different district within the same county does not satisfy Rule 32.03.

The trial court’s failure to grant Movant a proper change of venue, however, is not dispositive of the case. The present appeal relates to Movant’s claim of ineffective assistance of counsel under Rule 29.15. In Strickland, the United States Supreme Court outlined a two-step approach for establishing a claim of ineffective assistance:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S.Ct. 2052 (emphasis added). Moreover, the prejudice prong requires a defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

Movant did not plead that the failure to transfer the case to another county, rather than another district within the same county, resulted in any actual prejudice. He did not plead that anyone on the jury knew him, that any juror had heard anything about the case prior to trial, or that any juror was biased against him based on his race, gender, ethnicity, or any other trait. Indeed, Movant asserts that he need not show any actual prejudice. He maintains that prejudice is presumed simply from the fact that he was denied the change of venue provided for by Rule 32.03. Mov-ant’s contentions are incorrect.

In Moss v. State, this Court held that “Rule 32.03 does not create any presumption that a defendant cannot receive a fair trial in counties having seventy-five thousand or fewer inhabitants.” 10 S.W.3d 508, 513 (Mo. banc 2000). The rule “merely recognizes [that] a defendant’s ability to secure a fair trial in small counties is often contested and affords a defendant the right to change venue as a matter of convenience.” Id. In fact, Strickland and its progeny only recognize three types of cases in which prejudice normally may be presumed: (1) where there has been an actual or constructive denial of the right to counsel altogether; (2) where the state has affirmatively interfered with counsel’s representation; and (3) where counsel’s representation is impeded by an actual conflict of interest. 466 U.S. at 692, 104 S.Ct. 2052; see also Smith v. Robbins, 528 U.S. 259, 287, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (discussing Strickland’s three limited categories where prejudice is presumed). Movant’s claims do not fall into any of these categories. Because Movant did not plead any indication of actual prejudice stemming from his counsel’s failure to object to the improper change of venue, he is not entitled to an evidentiary hearing on this issue.

IV. Was counsel ineffective for deciding not to play the surveillance tape?

Movant also claims that his trial counsel was ineffective for failing to play a surveillance tape of the drug transactions. The State counters that this was trial strategy and that the motion court properly denied Movant an evidentiary hearing on the issue. The record reflects that Movant and his trial counsel had a long discussion about whether or not to play the tape. Despite strong encouragement from Movant and his family, trial counsel decided not to play the tape.

While Movant’s trial counsel did not state a reason for his decision not to play the surveillance tape, he did indicate that he made the decision only after discussing the matter at length with his client. Further, the motion court concluded that the tapes could have bolstered the prosecution witnesses’ testimony and emphasized matters that would have been detrimental to Movant.

Generally, choices regarding the introduction of evidence are considered trial strategy and are virtually unchallenga-ble. Taylor v. State, 126 S.W.3d 755, 762 (Mo. banc 2004). Representation is an art that is easily scrutinized with the convenience of hindsight. See Strickland, 466 U.S. at 681, 104 S.Ct. 2052. It is not within the province of the courts, however, to second-guess every decision of the trial counsel. Id. at 689,104 S.Ct. 2052. There is a strong presumption that the trial counsel’s strategy was reasonable. Id. In order to rebut this presumption, Movant was required to allege facts showing that his trial counsel’s performance was not reasonable and that he was thereby prejudiced. Coates, 939 S.W.2d at 914. Movant failed to meet this burden, and the motion court properly denied his request for an evidentiary hearing on this issue.

V. Other Claims of Ineffective Assistance

Movant also alleges that his trial counsel was ineffective for failing to challenge the jury selection process prior to trial. He asserts that he was prejudiced in that jurors were not selected at random from a fair cross-section of Marion County because they were not selected from both districts in Marion County. Movant further argues that the jury selection process denied him equal protection and due process of law.

Movant’s equal protection and due process claims involve an allegation of trial error. Allegations of trial error involving constitutional violations are not cognizable in a Rule 29.15 motion without a showing of exceptional circumstances for not raising the constitutional grounds on direct appeal. State v. Redman, 916 S.W.2d 787, 793 (Mo. banc 1996). Movant has not alleged the existence of any such circumstances. Accordingly, this Court will only address his ineffective assistance claim.

Under Strickland, Movant was required to show that his counsel’s acts or omissions prejudiced him. 466 U.S. at 687, 104 S.Ct. 2052. Movant failed to allege any facts indicating that he was prejudiced by the jury selection process. The motion court properly denied him an evidentiary hearing on this issue.

Lastly, Movant alleges that his trial counsel was ineffective for failing to introduce evidence of possible alternative sources of some of the drugs at issue in the case. Trial counsel has nearly unfettered discretion as to what evidence to admit in presenting a case, as well as which witnesses to call. Taylor, 126 S.W.3d at 762. In this case, counsel was free to decide that evidence of possible alternative sources would be unpersuasive and that the testimony of other witnesses would have provided no assistance to Mov-ant. Movant failed to allege facts in his Rule 29.15 motion indicating that witnesses were available to testify at trial that would have established an alternate source of the drugs at issue and refuted the overwhelming evidence against him. See Coates, 939 S.W.2d at 914. The motion court properly denied Movant an eviden-tiary hearing on this claim.

V. Conclusion

Movant failed to plead facts showing that his trial counsel was ineffective and that he suffered Strickland prejudice. The motion court did not err in finding that he was not entitled to an evidentiary hearing on his Rule 29.15 claims. The judgment of the motion court is affirmed.

All concur.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . All statutory references are to RSMo 2000 unless otherwise indicated.

      . The Court of Appeals affirmed Movant’s conviction and sentence on direct appeal. State v. Matthews, 99 S.W.3d 494 (Mo.App.2003).

      .These statutes provide for changes of venue for cause in certain circumstances and state that the venue change may be to another county or to the other district within Marion County.

      . Had this issue been raised in an application for an extraordinary writ at the time the case was transferred to District 1 at Palmyra, or had the issue been raised on direct appeal, the appellate court would have been compelled to enforce the nondiscretionary mandate of Rule 32.03 to have the case transferred to a different county.