DAVID B. JENNINGS v. DEBBIE KAYS, DEPARTMENT OF CORRECTIONS, COMMONWEALTH OF KENTUCKY
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RENDERED: July 15, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001982-MR
DAVID B. JENNINGS
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 04-CI-01143
v.
DEBBIE KAYS, DEPARTMENT OF CORRECTIONS,
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND JOHNSON, JUDGES; HUDDLESTON, SENIOR JUDGE.1
JOHNSON, JUDGE:
David B. Jennings, pro se, has appealed from an
order entered by the Franklin Circuit Court on September 9,
2004, which denied his petition for declaratory judgment
concerning his claim for good-time credits.
1
Having concluded
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
that KRS 197.045(4)2 does not operate as an ex post facto law as
applied to Jennings, we affirm.
Jennings was convicted on May 6, 2002, of sodomy in
the second degree3 for a crime occurring on January 1, 1998.
He
is currently serving a ten-year sentence at the Northpoint
Training Center in Burgin, Kentucky.
On August 13, 2004,
Jennings filed a petition for declaratory judgment pursuant to
CR4 57 in the Franklin Circuit Court seeking a declaration that
KRS 197.045(4) is an unconstitutional ex post facto law.
2
KRS 197.045(4), which was enacted on July 15, 1998, provides:
Until successful completion of the sex offender
treatment program, a sex offender may earn good time.
However, the good time shall not be credited to the
sex offender’s sentence. Upon the successful
completion of the sex offender treatment program, as
determined by the program director, the offender
shall be eligible for all good time earned but not
otherwise forfeited under administrative regulations
promulgated by the Department of Corrections. After
successful completion of sex offender treatment
program, a sex offender may continue to earn good
time in the manner provided by administrative
regulations promulgated by the Department of
Corrections. Any sex offender, as defined by KRS
197.410, who has not successfully completed the sex
offender treatment program as determined by the
program director shall not be entitled to the benefit
of any credit on his sentence. A sex offender who
does not complete the sex offender treatment program
for any reason shall serve his entire sentence
without benefit of good time, parole, or other form
of early release. The provisions of this section
shall not apply to any sex offender convicted before
July 15, 1998, or to any mentally retarded sex
offender.
3
KRS 510.080.
4
Kentucky Rules of Civil Procedure.
-2-
On
September 9, 2004, the trial court entered an order dismissing
Jennings’s petition.
This appeal followed.
Jennings claims that KRS 197.045(4) as applied to him
operates as an unconstitutional ex post facto law because the
offense for which he stands convicted was committed prior to the
effective date of KRS 197.045(4).
We conclude that the case
before us is similar to Martin v. Chandler,5 where the defendant,
like Jennings, committed a sexual offense prior to the effective
date of KRS 197.045(4), and was convicted of the offense after
the effective date.
Martin also argued that applying KRS
197.045(4) to him violated the ex post facto law, but our
Supreme Court disagreed and stated as follows:
The United States Constitution
prohibits the states from “pass[ing] . . .
any ex post facto law,” and the Kentucky
Constitution similarly states that “[n]o ex
post facto law . . . shall be enacted[ ]”
[footnotes omitted].
Although the Latin phrase [“]ex post
facto[”] literally encompasses any law
passed [“]after the fact[”] . . . [“][i]t is
settled . . . that any statute which
punishes as a crime an act previously
committed, which was innocent when done;
which makes more burdensome the punishment
for a crime, after its commission, or which
deprives one charged with crime of any
defense available according to law at the
time when the act was committed, is
prohibited as ex post facto” [footnote
omitted].
5
122 S.W.3d 540 (Ky. 2003).
-3-
In Weaver v. Graham, [450 U.S. 24, 101
S.Ct. 960, 67 L.Ed.2d 17 (1981)] the United
States Supreme Court held that a
retrospective change in the number of
automatic “gain-time” credits provided for
Florida inmates violated the Ex Post Facto
Clause. The Court explained that the United
States Constitution’s ex post facto
prohibition was designed “to assure that
legislative Acts give fair warning of their
effect and permit individuals to rely on
their meaning until explicitly changed.”
Thus, “[c]ritical to relief under the Ex
Post Facto Clause is . . . the lack of fair
notice . . . when the legislature increases
punishment beyond what was prescribed when
the crime was consummated.” In reliance
upon dicta found in Weaver v. Graham, this
inquiry has, at times, been articulated in
terms of whether an offender has been
somehow “disadvantaged” by a change in the
law after the crime was consummated. The
United States Supreme Court, however, has
subsequently identified the “disadvantaged”
language as dicta and has framed the
appropriate inquiry as whether a
retrospective change results in increased
punishment:
Our opinion[] in . . . Weaver
. . . suggested that enhancements
to the measure of criminal
punishment fall within the ex post
facto prohibition because they
operate to the “disadvantage” of
covered offenders. See . . .
Weaver, 450 U.S., at 29, 101 S.Ct.
960. . . . But that language was
unnecessary to the result in [that
case] and is inconsistent with the
framework developed in Collins v.
Youngblood, 497 U.S. 37, 41, 110
S.Ct. 2715, 111 L.Ed.2d 30 (1990).
After Collins, the focus of the ex
post facto inquiry is not on
whether a legislative change
produces some ambiguous sort of
-4-
“disadvantage,” . . . but on
whether any such change alters the
definition of criminal conduct or
increases the penalty by which a
crime is punishable [footnote
omitted].
. . .
The authority most germane to the issue
now before the Court, however, is Lozier v.
Commonwealth, [32 S.W.3d 511 ([Ky.App.]
2000)] in which the Court of Appeals
addressed the constitutionality of KRS
197.045(4), the same enactment at issue
here. Lozier referenced the Weaver v.
Graham dicta, but recognized the proper
context of the “disadvantage” language by
quoting Weaver v. Graham for the proposition
that “the ex post fact prohibition . . .
forbids the imposition of punishment more
severe than the punishment assigned by law
when the act to be punished occurred.” The
Lozier Court correctly held that KRS
197.045(4) did “not operate as an ex post
facto law as applied to the appellant”
because it did not increase Lozier’s
sentence [footnotes omitted] [emphasis
added].
. . .
[A]t the time that Appellant committed his
crimes, there was no promise from the
Commonwealth of Kentucky that, if convicted
and sentenced to prison, Appellant could
satisfy his sentence prior to its maximum
expiration date simply by maintaining good
conduct during his confinement. Other
jurisdictions addressing ex post facto
challenges to retrospective changes to
discretionary good time schemes have
concluded that the risk that an inmate might
be deprived of good time credits that he or
she might otherwise had received is “too
attenuated and speculative to constitute and
ex post facto violation” [emphases
original].
-5-
. . .
The discretionary nature of Kentucky’s
good time statutes dictates a similar result
here. Stated in the plainest terms,
although KRS 197.045(4) has been applied
retrospectively in Appellant’s case, the
statute’s additional requirement for
Appellant’s eligibility to earn
discretionary good time credits towards his
sentence is not an “increase in punishment”
prohibited by the Ex Post Facto Clause
[emphasis original]. . . .
In support of his position, Jennings relies on the
United States Supreme Court cases of Weaver, supra, and Miller
v. Florida.6
However, we conclude the case before us is
distinguishable from both Weaver and Miller.
In Weaver, the
defendant was charged with and convicted of murder in the second
degree in 1976.
In 1978 the Florida Legislature repealed the
previous formula for deducting gain-time credits from the
sentences of prisoners and replaced it with a more stringent
formula.
Thus, Weaver had two years’ worth of accumulated gain-
time credits reduced retroactively.
In the case at bar,
Jennings was not sentenced until after the effective date of KRS
197.045(4), therefore he did not lose any credits he had
previously earned through the retroactive application of the
statute.
6
482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).
-6-
Further, in Miller, the defendant was convicted in
August 1984 of sexual battery with slight force, burglary with
an assault, and petit theft.
On April 25, 1984, when the
offenses were committed, the sentencing guidelines adopted in
October 1983, were still in effect.
However, the Florida
Supreme Court proposed several revisions to the sentencing
guidelines, and on July 1, 1984, new guidelines became
effective.
Therefore, Miller was sentenced pursuant to the
newly-enacted guidelines, and pursuant to the new guidelines,
his sentence was increased from five and one-half years to seven
years.
The United States Supreme Court determined that
applying the newly-enacted guidelines to Miller was
unconstitutional as a violation of the ex post facto provision
because the new guidelines imposed a punishment for the crimes
that was greater than the punishment at the time the crimes were
committed.
Contrastly, Jennings’s sentence would not be
lengthened if he did not earn any good-time credits.
Further,
upon completion of the sex offender treatment program, Jennings
will receive credit for any good time he has earned.
Thus, if
Jennings completes the sex offender program, his sentence will
not be adversely affected by the withholding of good-time
credits he has previously earned.
-7-
While KRS 197.045(4) is being applied retroactively in
this case, unlike Weaver, Jennings is not receiving a greater
punishment.
Unlike the Florida statute in Miller, the statute
in the case before us merely required Jennings to successfully
complete a sex offender treatment program in order to receive
good-time credits.
This statutory requirement does not
unconstitutionally impose a harsher punishment on Jennings.
Having concluded that the case before us is not
distinguishable from Martin, we hold that KRS 197.045(4) does
not operate as an ex post facto law as applied to Jennings.
Accordingly, the order of the Franklin Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David B. Jennings, Pro Se
Burgin, Kentucky
Brenn O. Combs
Frankfort, Kentucky
-8-
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