WILLIAM LEON STOUT JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED: March 11, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001504-MR
WILLIAM LEON STOUT JR.
APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JOSEPH F. BAMBERGER, JUDGE
INDICTMENT NO. 00-CR-00105
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND VANMETER, JUDGES; HUDDLESTON, SENIOR JUDGE.1
HUDDLESTON, SENIOR JUDGE:
from
orders
of
the
Boone
William Leon Stout Jr. appeals pro se
Circuit
Court
denying
his
Kentucky
Rules of Criminal Procedure (RCr) 11.42 motion to vacate his
sentence. He also claims that the circuit court erred when it
denied his request for an evidentiary hearing.
1
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 KRS 21.580.
Stout entered a plea of guilty to first-degree sexual
abuse
on
April
25,
2000.
He
was
sentenced
to
five
years’
imprisonment probated for a like period in accordance with a
plea agreement.
The final judgment, entered on June 14, 2000,
provided that “[u]pon release from probation, pursuant to KRS
532.043, [Stout] . . .
will be conditionally discharged for a
period of three years.” (Emphasis supplied.)
At the time of Stout’s sentencing, Kentucky Revised
Statutes (KRS) 532.043 provided that:
(1) In addition to the penalties authorized by law, any
person convicted of, pleading guilty to, or entering an
Alford plea to a felony offense under KRS Chapter 510, KRS
530.020, 530.064, or 531.310 shall be sentenced 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
years. (Emphasis supplied.)
The statute made no mention, however, of whether the conditional
discharge period should be imposed if the sentence was probated.
Approximately one month later, an amended version of
the statute took effect.
The alteration in its wording that is
significant
of
for
purposes
this
-2-
appeal
is
that
the
phrase
“shall be subject to” was substituted for “shall be sentenced
to” in the opening passage, which now provides that:
In addition to the penalties authorized by law, any
person convicted of, pleading guilty to or entering an
Alford plea to a felony offense under KRS Chapter 510,
KRS 530.020, 530.064, or 531.310 shall be subject to a
period of conditional discharge.2
Several
submitted
months
affidavits
to
later,
the
Stout’s
court
probation
asserting
violated the terms of his probation.
that
officer
Stout
had
On November 14, 2000,
following a hearing, the circuit court entered an amended order
that revoked and set aside Stout’s probation and sentenced him
to serve five years in prison.
No mention was made in this
order of the period of conditional discharge.
Stout then moved to suspend or vacate his sentence
pursuant to RCr 11.42.
He claimed that his guilty plea had been
involuntary, and his counsel ineffective, because he was never
informed that he would be subject to the three-year conditional
discharge statute.
conditional
discharge
incarceration
therefore,
2
He further argued that, under KRS 532.043,
or
that
may
only
completion
the
of
initial
KRS 532.043(1)(emphasis supplied).
-3-
be
parole.
judgment
imposed
He
that
following
maintained,
imposed
the
conditional discharge to follow the completion of the probated
sentence was erroneous.
The court denied Stout’s motion on the ground that
“KRS 532.043 as amended effective July 14, 2000, provides that
the three (3) year conditional discharge is imposed as a matter
of law rather than as part of the sentence.”
Stout’s motion for
reconsideration was denied, and this appeal followed.
On
assistance
motion.
of
The
appeal,
Stout
counsel
two
has
claim
principal
not
made
in
arguments
raised
his
the
original
that
he
ineffective
RCr
11.42
advances
are:
first, that his guilty plea was involuntary because he was not
informed that in addition to the five year sentence, he would
also be subject to a three-year period of conditional discharge;
and second, that the imposition of the three-year conditional
sentence was an ex post facto application of the law.
Although
the
three-year
period
of
conditional
discharge was not mentioned in the Commonwealth’s written offer
on a plea of guilty or in Stout’s written plea agreement, the
circuit court explicitly raised the issue with him at the June
13, 2000, sentencing hearing.
court
engaged
in
the
Before imposing sentence, the
following
attorney:
-4-
colloquy
with
Stout
and
his
Court: I need to tell you that that there’s a statute
. . . that requires three years conditional discharge
after the five. [Indistinct] aware of that?
Defense counsel: Yeah.
Court: So, after I impose the sentence – even though
it’s five years – there’s another three on the back.
Stout: Yes, sir, I know that.
(Emphasis supplied.)
Court: You know that?
Stout: Yes.
At no time during this exchange did Stout express any doubt
about the potential length of his sentence.
Stout now claims that he was sentenced “without the
Trial Court or Defense Counsel ever advising him as to what the
three year Conditional Discharge was, and how it would affect
his
sentence.”
record.
This
allegation
is
clearly
refuted
by
the
Stout informed the court that he knew that three years
of conditional discharge would follow the five-year sentence.
There is no indication, therefore, that his plea did not meet
the knowing, intelligent and voluntary standard for guilty pleas
established by Boykin v. Alabama.3
Stout’s second argument is that the circuit court, in
denying his RCr 11.42 motion, violated the prohibition against
ex post facto application of statutes.
3
He refers specifically
395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
-5-
to the court’s reliance on the most recently amended version of
KRS 532.043 for its statement that the period of conditional
discharge was imposed as a matter of law, thereby implying that
it did not need to be expressly included in the final judgment
and sentence.
In
discussing
when
statutes
are
deemed
to
have
an
impermissible ex post facto effect, the United States Supreme
Court
has
analysis
stressed
of
two
Stout’s
factors
case:
the
particularly
potential
relevant
for
an
to
an
unforeseen
increase in the defendant’s sentence, and the necessity of a
“fair warning.”
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.
(Emphasis supplied.)4
4
Martin v. Chandler, 122 S.W.3d 540, 546 (Ky. 2003), quoting Collins v.
Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30, 38 (1990),
quoting, in turn, Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216
(1925).
-6-
In Weaver v. Graham,5 the Supreme Court explained that
the
constitutional
prohibition
against
the
ex
post
facto
application of laws was intended “to assure that legislative
Acts give fair warning of their effect and permit individuals to
rely on their meaning until explicitly changed.”6
In a later
case, the Court further refined its analysis by stressing that
“[t]he focus of the ex post facto inquiry is not on whether a
legislative
change
produces
some
ambiguous
sort
of
‘disadvantage,’ . . . but on whether any such change alters the
definition of criminal conduct or increases the penalty by which
a crime is punishable.”7
It is apparent that Stout was given “fair warning” of
the conditional discharge at his sentencing hearing.
as
much
532.043
in
open
from
discharge”
to
court.
“shall
“shall
be
be
The
revision
of
the
He stated
phrase
in
KRS
sentenced
to
a
period
of
conditional
subject
to
a
period
of
conditional
discharge” did not change the definition of the criminal conduct
to which he pleaded guilty, nor did the change result in an
5
450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).
6
Martin, supra, note 4, at 546, quoting
S.Ct. at 964, 67 L.Ed.2d at 23.
7
Weaver v. Graham, id. at 28, 101
California Dep’t of Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115
S.Ct. 1597, 1602 n. 3, 131 L.Ed.2d 588, 595 n. 3 (1995), quoted in Martin,
supra, note 4, at 547.
-7-
increase
in
his
penalty.
The
second
order
revoking
his
probation merely reinstated the sentence initially imposed.8
As to the judgment, two interpretations are possible:
first, that the imposition of conditional discharge to follow
probation
merely
failed
to
reflect
fully
the
judge’s
oral
sentence, in which case the judge was free to amend it at any
time as a clerical error;9 or second, that the initial written
order was contrary to law in that it did not expressly impose
conditional discharge to follow the prison sentence as required
under the earlier wording of the statute.
If that is the case,
the judge was similarly free to correct the sentence at any
time.10
The
reliance
of
the
circuit
court
on
the
amended
version of KRS 532.043 to support its denial of Stout’s RCr
8
See Commonwealth v. Tiryung, 709 S.W.2d 454, 455 (Ky. 1986), quoting
McCulley v. State, 486 S.W.2d 419, 423 (Mo. 1972) (“[P]robation standing
alone does not function as a sentence . . . [o]ne consequence of the
revocation of probation can be a court’s order that the sentence previously
imposed be executed”).
9
See Cardwell v. Commonwealth, 12 S.W.3d 672, 674-75 (Ky. 2000). It is has
by no means been established, as Stout seems to assume, that the period of
conditional discharge is not intended to follow a probated sentence. Indeed,
one author has argued, “it seems the better view would be that the three-year
period of conditional discharge must be added to each sentence, regardless of
whether probation is granted. A sentence that is probated is, nevertheless,
a sentence, and must be served if probation is revoked.”
Gregory M.
Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998
(HB455): Another Attempt at Providing a Framework for Efficient and Effective
Sentencing, 27 N. Ky. L. Rev. 283, 302 (2000).
10
See Neace v. Commonwealth, 978 S.W.2d 319, 322 (Ky. 1998), citing Skiles v.
Commonwealth, 757 S.W.2d 212, 215 (Ky. App. 1988).
-8-
11.42 motion was therefore unnecessary.
At most, it constituted
harmless error.
Moreover, even following an unconditional guilty plea,
a
defendant
retains
the
right
to
imposed that is contrary to law.11
appeal
when
a
sentence
is
Stout was free to appeal if
he believed the sentence was erroneous, but he chose not to do
so.
The structure for appellate review is not haphazard or
overlapping.12
A criminal defendant must first bring a direct
appeal when available, then he must utilize RCr 11.42 by raising
every error of which he should be aware.13 Stout has failed to
explain
erroneous
why
he
did
judgment
not
of
raise
June
14,
the
2000,
issue
of
by
means
the
of
allegedly
a
direct
appeal.
The evidentiary hearing to which Stout contends he was
entitled is required under RCr 11.42 only if there is a material
issue
of
fact
conclusively
record.14
that
proved
Because
cannot
or
the
be
conclusively
disproved,
record
by
an
examination
conclusively
allegations, he was not entitled to a hearing.
11
Hughes v. Commonwealth, 875 S.W.2d 99 (Ky. 1994).
12
Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).
13
Id.
14
Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
-9-
resolved,
refutes
i.e.,
of
the
Stout’s
For the foregoing reasons, the order denying Stout’s
RCr 11.42 motion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William Stout Jr., pro se
LaGrange, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Natalie Lewellen
Assistant Attorney General
Frankfort, Kentucky
-10-
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