DAT SHIRLEY MARTIN V. LARRY CHANDLER, WARDEN, LUTHER LUCKETT CORRECTIONAL COMPLEX
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2001-SC-0473-DG
SHIRLEY MARTIN
V.
DAT
APPELLANT
ON REVIEW FROM COURT OF APPEALS
NO. 2001-CA-0858
OLDHAM CIRCUIT COURT NO. 2001-CI-00197
LARRY CHANDLER, WARDEN, LUTHER
LUCKETT CORRECTIONAL COMPLEX
APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
I. ISSUE
In 1995, Appellant was convicted of Incest and was sentenced to a ten (10) year
term of imprisonment . Because Appellant was eligible to receive additional "good time
credit" against this sentence under KRS 197.045(1)&(3), the Kentucky Department of
Corrections ("KDOC") calculated Appellant's minimum expiration date as March 19,
2001 . However, a 1994 indictment that charged Appellant with additional sexual
offenses remained pending, and in 1999, Appellant pled guilty under that indictment to
two (2) counts each of First-Degree Sodomy and Second-Degree Rape and received
four (4) concurrent ten (10) year prison sentences that the trial court also ordered to run
concurrently with the ten (10) year sentence that Appellant was already serving for his
1995 Incest conviction . Pursuant to KRS 197 .045(4), which the General Assembly
enacted in 1998, Appellant could not receive KRS 197.045 good time credits against the
sentences for his 1999 convictions until he successfully completed the Sex Offender
Treatment Program ("SOTP") . Appellant has not met this requirement . Therefore, the
KDOC performed its sentence calculations as to Appellant's 1999 convictions without a
good time credit allowance and thus reflected only a maximum expiration date of June
19, 2004. After he reached the minimum expiration date of the sentence for his 1995
Incest conviction, Appellant filed a petition for a writ of habeas corpus in which he
alleged that the KDOC had violated the Ex Post Facto clauses of the federal and state
constitutions by calculating his expiration date in accordance with KRS 197 .045(4) . The
trial court denied the petition and, on appeal, the Court of Appeals summarily affirmed .
Appellant now appeals to this Court as a matter-of-right. Did the KDOC's application of
KRS 197.045(4) to the sentences Appellant received for his 1999 convictions violate
Appellant's constitutional protections against ex post facto laws? Because Appellant
has no entitlement to the discretionary KRS 197.045(1) non-educational good time and
KRS 197.045(3) meritorious good time credits, KRS 197.045(4)'s requirement that sex
offenders successfully complete SOTP before they are eligible to earn such good time
credits does not "increase the punishment for criminal acts ." 2 Accordingly the KDOC did
In addition to the substantive issue raised in this appeal, Appellant argues that
the Court of Appeals violated CR 76.28(1)(b), which provides that "[o]pinions and orders
finally deciding a case on the merits shall include an explanation of the legal reasoning
underlying the decision," when it failed to set out its reasoning in its order affirming the
trial court's denial of habeas relief. We do not separately address this allegation of error
because we conclude that any defect in the Court of Appeals's order was rendered
harmless by this Court's decision to grant discretionary review and review Appellant's
claim on its merits . See RCr 9 .24
2 Collins v. Youngblood , 497 U.S . 37, 43, 110 S .Ct. 2715, 2719, 111 L.Ed .2d 30,
39 (1990) ("The Beazell v. Ohio, 269 U .S . 167, 46 S .Ct. 68, 70 L.Ed . 216 (1925)]
formulation is faithful to our best knowledge of the original understanding of the Ex Post
Facto Clause: Legislatures may not retroactively alter the definition of crimes or
increase the punishment for criminal acts .") .
not violate federal or state ex post facto protections when it calculated the expiration
date for Appellant's 1999 convictions in accordance with KRS 197.045(4).
II. FACTUAL BACKGROUND
The most direct way to review the factual background to the issues presented in
this case is to examine the KDOC's calculations as to Appellant's sentences, which are
reflected on Appellant's KDOC Resident Record Card:
YR
SENTENCE CALCULATIONS3
MO
DY
1 . Total Time to Serve
2. Date Sentenced/Received
3. Normal Maximum Expiration Date
4. Credit for Jail Time
5. Adjusted Max Expiration Date
6. Good Time Allowance
7. Minimum Expiration Date
8. Meritorious Good Time Award
9. New Minimum Exp. Date
10 . Meritorious Good Time Award
11 . New Minimum Exp. Date
12 . Meritorious Good Time Award
13 . New Minimum Exp . Date
0010
1995
2005
0001
2004
0002
2001
0000
00
12
12
06
06
06
00
19
19
00
19
00
05
00
2001 05
0000 02
2001 03
19
00
19
14.
15.
16.
17.
18.
0010
1995
2005
0001
2004
New Tot Time to Serve
Date Sentenced/Received
Normal Maximum Expiration Date
Credit for Jail Time
Adjusted Max Expiration Date
12
2001 07
0000 02
00
12
12
06
06
19
19
00
00
19
19
00
19
Entries 1-13 reflect the KDOC's sentencing calculations for Appellant's first ten
(10) year sentence - the one imposed on December 19, 1995 for the crime of Incest
under Adair Circuit Court Indictment No . 95-CR-061 . After adding the ten (10) year
sentence to Appellant's institutional start date and then subtracting the jail custody
3 We have numbered the entries on Appellant's Resident Record Card for easy
reference ; they are unnumbered on the original. The space between entries 13 and 14
appears in the original document.
credit ordered in the trial court's final judgment, entry 5 represents Appellant's
maximum expiration date, i.e. , the date when he would have served the entirety of his
ten (10) year sentence.
Entry 6, which reflects a "good time allowance" of two (2) years and six (6)
months (or thirty (30) months) requires further explanation . The KDOC subtracted this
"good time allowance" from Entry 5, Appellant's maximum expiration date, to determine
Appellant's minimum expiration date, i .e. , the date when Appellant would be released
from custody if he remained continuously incarcerated until that date and if, and only if,
he "was credited with the full amount of statutory good time credit at that time ."5
Although Appellant suggests otherwise, the thirty (30) month "good time allowance"
reflected on this sentence does not reflect an actual credit against this sentence that he
had already earned or accumulated as of January 1999 when the trial court imposed the
second, concurrent ten (10) year sentences After all, KRS 197.045(1) allows the
KDOC to credit inmates with a good time credit "of not exceeding ten (10) days for each
month served," and, when Appellant filed this habeas action in March 2001, he had
served just over sixty-three (63) months (including his jail custody credit) . 7 Accordingly,
4 See KRS 532 .120(3) ("Time spent in custody prior to the commencement of a
sentence as a result of the charge that culminated in the sentence shall be credited by
the court imposing sentence toward service of the maximum term of imprisonment .").
5 Kassulke v. Briscoe-Wade , Ky., 105 S .W.3d 403, 404 (2003) (footnote omitted
and emphasis added) .
s As explained above, this "sentence" was actually four (4) concurrent ten (10)
year sentences. However, because those concurrent sentences function as a single ten
(10) year sentence, for the sake of clarity, we will refer to them as a single sentence.
See KRS 532 .120(3) ("If the sentence is to an indeterminate term of
imprisonment, the time spent in custody prior to the commencement of the sentence
shall be considered for all purposes as time served in prison."); Polsgrove v. Kentucky
Bureau of Corrections , Ky., 559 S .W.2d 736 (1977).
at that time, Appellant could have received no more than six hundred and thirty (630)
days (or twenty-one (21) months) of KRS 197.045(1) non-educational good time credit,
and it would therefore have been impossible for him to have earned thirty (30) months
of KRS 197 .045(1) non-educational good time credit as of that date. Appellant's
suggestion that the "good time allowance" constitutes an "up-front" credit for the
maximum amount of KRS 197.045(1) non-educational good time erroneously assumes
that every well-behaved inmate is entitled to the statutory maximum of ten (10) days
per month of such credit. However, unlike the KRS 197.045(1) educational good time
credit, which is mandatory$ (but not implicated in this case), the KRS 197.045(1) noneducational good time credit is akin to the KRS 197.045(3) meritorious good time credit9
in that both its availability and amount is a matter for the KDOC's discretion.'° As such,
8 KRS 197.045(1) ("in addition, the department shall provide an educational good
time credit of sixty (60) days to any prisoner who successfully receives a graduate
equivalency diploma or a high school diploma, a two (2) or four (4) year college degree,
or a two (2) year or four (4) year certification in applied sciences, or who receives a
technical education diploma as provided and defined by the department[ .]" (emphasis
added)) .
9 See KRS 197.045(3) ("An inmate may, at the discretion of the commissioner, be
allowed a deduction from a sentence not to exceed five (5) days per month for
performing exceptionally meritorious service or performing duties of outstanding
importance in connection with institutional operations and programs ." (emphasis
added)) ; Anderson v. Parker, Ky.App ., 964 S .W.2d 809, 811 (1998).
'o KRS 197.045(1) provides that "[a]ny person convicted and sentenced to a
state penal institution may receive a credit on his sentence of not exceeding ten (10)
days for each month served, except as provided in this section, to be determined by the
department from the conduct of the prisoner ." (Emphasis added) . Both our
predecessor Court and the Court of Appeals have recognized that KRS 197.045(1)'s
"may" language prevents any claim of entitlement to statutory good time. See Fowler v.
Black , Ky., 364 S.W.2d 164, 164-5 (1963) ("[T]he privilege granted by [KRS 197.045] is
not a vested right . . . . When Fowler claims the benefit provided by the statute he
necessarily is bound by the condition which reserves to the Department the right to
determine whether he was entitled to receive such benefit."); Hobbs v. Commonwealth ,
Ky.App ., 690 S .W .2d 771, 772 (1985) ("Appellant also relies on KRS 197.045(1) as
grounds for `good time' reduction as a matter of right. However a reading of that section
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Appellant had no vested right nor reasonable entitlement to any KRS 197.045(1) noneducational good time credit.
Because it is not possible to make a prospective
determination of how an inmate will conduct himself or herself during a term of
imprisonment," the thirty (30) month "good time allowance" reflected on Appellant's
KDOC Resident Record Card is simply the maximum amount of KRS 197.045(1) noneducational good time that Appellant could possibly receive .12 Of course, even actuallyawarded KRS 197.045(1) non-educational good time is subject to the KDOC's ability to
clearly shows the contrary ."). And, over eighty years ago, when the predecessor to the
current KRS 197.045(1) provided that a prisoner "shall receive a credit on his sentence
of not exceeding ten days in each month, the amount of credit to be determined by the
Board of Prison Commissioner from the conduct of the prisoner," our predecessor
identified it as a legislative change from an earlier, mandatory good time statute
because of the discretion to determine the number of days of credit an inmate receives .
State Board of Charities and Corrections v. Combs, 193 Ky. 548, 237 S .W. 32, 37
(1922) . More recently, in opinions addressing the admissibility during Truth-inSentencing Proceedings of evidence relating to possible good time credit against a
defendant's sentence, this Court has characterized good time credit as "speculative,"
Commonwealth v. Higgs , Ky., 59 S .W .3d 886, 893 (2001), and has analytically
juxtaposed evidence as to "potential" good time credit with evidence concerning parole
eligibility because "[n]either constitutes a guarantee of a reduction of the sentence; but
both potentially affect the actual duration of a period of imprisonment . . . ." Cornelison
v. Commonwealth, Ky., 990 S.W .2d 609, 611 (1999).
11
See State Board of Charities and Corrections v. Combs, 237 S.W. at 37.
12 See Brenn O. Combs, Understanding Sentence Calculation and Application,
25 (No . 5) THE ADVOCATE 30, 31 (Sept. 2003) ("Although statutory good time is only
`earned' when the month has been served, as a practical matter an allocation of the
statutory good time credit applicable to the inmate's sentence is placed on his Resident
Record Card in advance .") As a prison sentence is reduced from the front end by
service and from the back end by statutory good time, the two (2) ends will meet
somewhere in the middle . Thus, an inmate with a ten (10) year (or one hundred and
twenty (120) month) sentence who receives a maximum KRS 197 .045(1) statutory good
time award of ten (10) days for each month will serve seven (7) years and six (6)
months (or ninety (90) months) because, after serving ninety (90) months and receiving
thirty (30) months of 197.045(1) statutory good time credit [90 months of service X 10
days of KRS 197.045(1) statutory good time per month = 900 days or 30 months], he or
she would have served out the sentence by reachin g the minimum expiration date . Id .
at 32.
"forfeit any good time previously earned by the prisoner or deny the prisoner the right to
earn good time in any amount. "13 And, Appellant's "good time allowance" in entry 6 is
properly understood not as an actual credit on his sentence but rather as a maximumamount "place-holder," which, if subtracted from the maximum expiration date, allows
the KDOC to calculate Appellant's minimum expiration date .
Entries 8, 10, and 12 reflect a total of nine (9) months of KRS 197.045(3)
meritorious good time awards, which further reduce Appellant's minimum expiration
date for his 1995 Incest conviction . Thus, in a hypothetical world where Appellant did
not receive an additional sentence for sexual offenses in January 1999, Appellant would
have been released from prison on March 19, 2001 - assuming of course that, at that
time, the KDOC had credited him with the maximum amount of KRS 197.045(1) noneducational good time credit .
However, after Appellant's January 1999 guilty plea to two (2) counts of FirstDegree Sodomy and two (2) counts of Second-Degree Rape under Adair Circuit Court
Indictment No. 94-CR-00048, which resulted in four (4) ten (10) year sentences to run
concurrently with each other and with the ten (10) year sentence Appellant received
under the other indictment, the reality of Appellant's situation diverged sharply from the
hypothetical world described above . Entries 14-18 reflect the KDOC's sentence
calculations for that second sentence, which, unlike the first one, had a post-July 15,
1998 conviction date and was thus subject to KRS 197.045(4). Entry 14 simply
observes that the new sentence was for a ten (10) year term of imprisonment . In
13
KRS 197.045(1). See also Kentucky Corrections Policies and Procedures
(CCP) 15.2.
accordance with KRS 197.035, 14 entry 15 gives effect to the trial court's order for
concurrent sentences by using the same "Date Sentenced/Received" that was used in
entry 2 for the sentence calculations made in connection with Appellant's first sentence .
Similarly, entries 16-18 mirror entries 3-5 because they were calculated using the same
dates used in the earlier calculation, and Appellant received the same jail custody credit
against his second sentence that he received against his first sentence .
The important difference between the sentence calculations for Appellant's two
(2) sentences is, of course, that the entries for the second sentence stop at entry 18 an adjusted maximum expiration date of June 19, 2004 - because KRS 197.045(4)
does not allow Appellant, a person convicted of a sex offense after July 15, 1998 who
has not successfully completed SOTP, to receive good time credit on this sentence :
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 the 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
14
KRS 197 .035 provides :
(1) A sentence, on conviction of a felony, imposed upon a
confined prisoner for a crime committed prior to the date
of his instant confinement, if designated to be served
consecutively, shall be added to the sentence or
sentences being served.
(2) If the additional sentence is designated to be served
concurrently, or the commitment is silent, he shall be
considered as having started to serve said sentence on
the day he was committed on the first sentence.
offender, defined in 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. 15
And, under KRS 532.120, 16 Appellant will not be released from prison until he
satisfies this second sentence. Although the subsequently-imposed concurrent
sentence is also for a maximum term of ten (10) years, it "has the longest unexpired
term to run" because, unlike the earlier sentence on which Appellant received good time
credits, unless Appellant successfully completes SOTP, KRS 197.045(4) unequivocally
provides that he "shall serve his entire [second] sentence without benefit of good time,
parole or other form of early release . "17 Thus, unless and until Appellant completes
SOTP, the only end in sight for him is his maximum expiration date of June 16, 2004.
The issue presented in this case is whether this application of KRS 197.045(4)
constitutes an ex post facto violation .
15
KRS 197 .045(4) (emphasis added).
16 KRS 532 .120(1)(a) provides:
An indeterminate sentence of imprisonment commences
when the prisoner is received in an institution under the
jurisdiction of the Department of Corrections . When a
person is under more than one (1) indeterminate sentence,
the sentences should be calculated as follows:
(a) If the sentences run concurrently, the maximum terms
merge in and are satisfied by discharge of the term which
has the longest unexpired time to run. (Emphasis added) .
1 7 KRS 197 .045(4).
III. ANALYSIS
The United States Constitution prohibits the states from "pass[ing] . . . any ex
post facto law," 18 and the Kentucky Constitution similarly states that "[n]o ex post facto
law . . . shall be enacted ." 19
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 ." 2°
1n Weaver v. Graham , 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 ."23 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
18
U .S . CONST . art I, § 10, cl. 1 . See also U.S . CONST. art I, § 9, cl. 3 ("No Bill of
Attainder or ex post facto Law shall be passed .").
'9 Ky. CONST. § 19(1).
2°
Collins v. Youngblood , 497 U.S . at 41-2, 110 S .Ct. at 2718-9, 111 L.Ed.2d at
38-39 (uotin Beazell v. Ohio ).
2' 450 U .S. 24, 101 S .Ct. 960, 67 L.Ed .2d 17 (1981) .
22
Id .
23
Weaver v. Graham , at 450 U .S . at 28-29, 101 S.Ct . at 964, 67 L.Ed .2d at 23.
-10-
when the crime was consummated ."24 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 US, at 29 . . . . But that language was unnecessary to
the result in [that case] and is inconsistent with the
framework developed in Collins v. Youngblood , 487 US 37,
41, 111 L.Ed .2d 30, 110 S .Ct. 2715 (1990) . After Collins,
the 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 .
Kentucky appellate courts have, on a number of occasions, considered ex post
facto challenges to the General Assembly's sex offender legislation, and, in so doing,
have properly focused upon whether retrospective legislation has increased the
punishment for an offense . In Garland v. Commonwealth , the Court of Appeals held
that KRS 439.340(11), which requires a sex offender to complete the Sex Offender
Treatment Program ("SOTP") before he or she may be eligible for parole, was not an
24
Id ., 450 U .S . at 30, 101 S .Ct. at 965, 67 L.Ed .2d at 24.
25
California Department 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) .
26
Ky .App ., 997 S .W .2d 487 (1999).
unconstitutional ex post facto law because it does not affect the length of an inmate's
sentence:
The appellant argues [KRS 439.340(11)] is an improper
enhancement of his sentence . We disagree . The appellant
misunderstands the nature of parole . The Supreme Court
long ago established that parole is not a right but a privilege .
Furthermore, "[g]rant of parole is not a right but a matter of
grace or gift to persons deemed eligible . . . . " Thus, the
appellant still faces a maximum five-year sentence; no more
and no less. When he becomes eligible for parole is largely
irrelevant . Although the appellant complains he would be
eligible for parole in just one year were it not for the
treatment program, he fails to realize that he does not have
to be granted parole at all . Finding that relevant criteria have
been met does not require the parole board to release an
inmate prior to the expiration of sentence ; nothing in the
parole statutes or regulations mandates the granting of
parole or diminishes the discretionary nature of the Parole
Board's authority. Clearly, the appellant was ordered to
serve five years, and the condition precedent to parole
(attending the Sexual Offender Treatment Program) does
not affect the underlying sentence and is proper. The
sentence is not enhanced in any way, and the appellant's
argument must fail.
In Purvis v. Commonwealth , however, this Court examined KRS 532 .043,
which provides that persons convicted after July 15, 1998 of specified sexual offenses
"shall be sentenced to a [three (3) year] period of conditional release following
release,
,29
and found it unconstitutional . Although the Purvis opinion cited Weaver v.
Graham 's "disadvantaged" dicta,3° our ex post facto analysis correctly focused upon the
27
Id. at 489 (citations omitted and emphasis added) .
28 Ky., 14 S.W .3d 21 (2000) .
29 KRS 532 .043(1).
30
Purvis v. Commonwealth , 14 S .W .3d at 23 n .5 .
-12-
fact that KRS 532.043 purports to extend a sex offender's possible maximum sentence
length :
KRS 532 .043 must also disadvantage Appellant in order
for it to be declared an unconstitutional ex post facto law.
The statute provides for the possibility of an additional three
years imprisonment if Appellant violates the post-release
terms imposed by the Department of Corrections, which
include the completion of a sex offender program as ordered
in the trial court's final judgment. Thus, Appellant is subject
to the possibility of serving an additional three years
imprisonment beyond the maximum sentence to which he
was subject when the offenses were committed. This result
disadvantages Appellant .
. . . The case at bar differs from Garland in that it deals
with a post-release condition rather than a condition of
parole . Whereas parole "is not a right but a privilege,"
absolute liberty upon expiration of a criminal sentence is a
right that, if circumscribed, would be a certain disadvantage.
In other words, KRS 532.043 disadvantages Appellant by
extending the possible maximum length of the sentence by
three years .31
Later, in both Hyatt v. Commonwealth 32 and Martinez v. Commonwealth ,33 this
Court addressed ex post facto challenges to Kentucky's Sex Offender Registration and
Notification Provisions . Although we again cited the Weaver v. Graham dicta,34 we
recognized in both cases that "ex post facto laws must relate to a very real and direct
effect on the actual time the prisoner remains behind bars which could include an
_Id . at 24 (footnote omitted and emphasis added) . See also Lozier v.
Commonwealth, Ky.App ., 32 S .W .3d 511, 514 (2000) ("[U]nder KRS 532.043, Lozier is
subject to the possibility of serving three additional years beyond the maximum five-year
sentence to which she was subject when she committed the crime of third-degree
sodomy.").
31
Ky ., 72 S .W.3d 566 (2002), cert. denied ,
L. Ed.2d 230 (2003).
32
33
U .S.
, 123 S.Ct. 1481, 155
Ky., 72 S.W.3d 581 (2002) .
34
Hyatt v. Commonwealth , 72 S.W .3d at 571 ; Martinez v. Commonwealth , 72
S.W.3d at 584.
-13-
increase in punishment"" and concluded that "[a]lthough the registration act is
retroactive, there is no increase in punishment so as to invoke the ex post facto
standard ."3s
The authority most germane to the issue now before the Court, however, is
Lozier v. Comonwealth , 3' 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,38 but recognized the proper context of the "disadvantage" language by
quoting Weaver v. Graham for the proposition that "the ex post facto prohibition . . .
forbids the imposition of punishment more severe than the punishment assigned by law
when the act to be punished occurred ." 39 The Lozier Court correctly held that KRS
197.045(4) did "not operate as an ex post facto law as applied to the appellant" 4°
because it did not increase Lozier's sentence :
[A]pplication of KRS 197 .045(4) does not impose any
additional punishment upon Lozier . A person convicted and
sentenced to a state penal institution may receive credit on
his or her sentence for good behavior or for other meritorious
35
Hyatt v. Commonwealth , 72 S.W .3d at 571 . See also Martinez v.
Commonwealth , 72 S .W .3d at 584 ("[E]x post facto laws must relate to a real and direct
effect on the actual time the prisoner remained behind bars.").
36
Martinez v. Commonwealth , 72 S .W.3d at 584. See also Hvatt v.
Commonwealth, 72 S.W .3d at 581 ("Registration and Notification Statutes . . . do not
amount to punishment or increased punishment ."); Id . a t 573 ("The Act in question does
not impose any additional punishment on Hyatt, and are not ex post facto laws under
either the United States Constitution or the Kentucky Constitution .").
37
32 S.W.3d 511 (2000).
38 Id . at 514 .
39 Id. (quoting Weaver v. Graham , 450 U .S . at 30, 101 S.Ct. at 965, 67 L.Ed .2d at
24 (1981)).
40
Id . at 512 .
- 1 4-
conduct . Since Lozier was convicted and sentenced after
the effective date of the statute, it does not deprive her of
any previously earned credits. In addition, KRS 197.045(4)
does not deprive Lozier of the opportunity to earn good time
credit and to qualify for early parole . Rather, KRS 197.045
merely defers the effective date of any good time credit
which Lozier may earn in prison until she has successfully
completed a sex offender treatment program . Once she
completes the program, her accrued good time will be
credited against her sentence . Consequently, we find no
indication that Lozier will be disadvantaged by the
application of KRS 197.045(4) . 41
Appellant argues that KRS 197.045(4) has been applied as an ex post facto law
in his case and attempts to distinguish Lozier by arguing that the KDOC's sentence
calculations for his second sentence "deprived" him of previously earned good time
credits . However, the premise of Appellant's argument is invalid because the sentence
calculation for Appellant's first ten (10) year sentence was unaffected by the KDOC's
application of KRS 194.045(4) to his concurrent ten (10) year sentence under the other
indictment . Accordingly, the KRS 197.045(3) meritorious good time credits reflected in
entries 8, 10, and 12 and any KRS 197.045(1) non-educational good time credits that
Appellant actually earned were, are, and, unless forfeited, always will be credited
against the first sentence . Further, it is important to note that the KDOC has not
withdrawn any good time credits that it had previously credited towards Appellant's
second sentence .42 Instead, the KDOC acted in accordance with the plain terms of
KRS 197 .045(4), which instructs it to deny any good time credit on Appellant's second
sentence until Appellant successfully completes SOTP.
41
Id . at 514 .
42
Compare Lvnce v. Mathis , 519 U .S. 117 S .Ct. 891, 137 L .Ed.2d 63 (1997)
(finding an ex post facto violation where Florida rearrested an inmate and returned him
to custody after retroactively canceling "provisional credits" that had been credited
towards the inmate's sentence and resulted in his release from custody) .
- 1 5-
As such, Appellant's argument can be distilled to a couple of assertions: first, that
Appellant was entitled to receive as a credit on his second sentence the thirty (30)
months of KRS 197.045(1) non-educational good time and nine (9) months of KRS
197.045(3) meritorious good time credited on his earlier sentence; and second, that to
the extent that KRS 197.045(4) directs a different result, it is an ex post facto law
because it "disadvantages" him. We observe that Appellant cites no statute, regulation,
or precedent to support his claim that any previously earned good time credit from the
earlier sentence is equally applicable to the subsequently-imposed concurrent
sentence, and we have found none in our own research . Although KRS 532 .120(1)(a)
states that the maximum terms of concurrent indeterminate sentences merge ,43 no
provision mandates that the minimum terms merge. And, although KRS 197 .032(2)
directs the KDOC to treat a sentence ordered to run concurrently with a prior sentence
as having the same institutional start date as the prior sentence, in doing so it simply
recognizes the fundamental premise of concurrency, i .e . , "a second judgment which
provides that its sentence shall run concurrently accords the convicted defendant the
right to have the time served on the first sentence credited against the second
sentence. ,44 Appellant's assertion that "credits on one sentence apply equally to the
other sentence" is flatly contradicted by both KRS 197.045(4) and KRS 439 .3401(4),
which manifestly demonstrate the General Assembly's intent that certain classes of
offenses - i .e., sex offenses for which the defendant was convicted after July 15, 1998
and violent offenses committed after July 15, 1998 - play by different rules with respect
43
See supra note 16.
44
Lemon v. Corrections Cabinet , Ky.App ., 712 S .W.2d 370, 371 (1986)
(emphasis added), citing Rogers v. Wingo , Ky ., 467 S.W.2d 369, 370 (1971).
- 1 6-
to good time credits and thus will not have the same minimum expiration date as a
concurrent sentence for a non-violent or non-sexual offense .
Given that the KDOC did not apply KRS 197.045(4) to Appellant's sentence for
his 1995 Incest conviction, he cannot present a prima facie case that KRS 197.045(4)
increased the punishment for that offense . In short, Appellant was permitted to receive
good time credits on that sentence, and, in all likelihood, Appellant has now satisfied
that sentence.45 Thus, the issue before the Court is whether the application of KRS
197 .045(4)'s condition precedent to eligibility for good time credits increases the
punishment for the First-Degree Sodomy and Second-Degree Rape offenses for which
Appellant was convicted in January, 1999. And that issue was squarely addressed and
resolved in Lozier ; applying KRS 197 .045(4) to post-July 15, 1998 convictions for
conduct prior to that date does not violate the Ex Post Facto Clause.
The Ex Post Facto Clause is "only one aspect of the broader constitutional
protection against arbitrary changes in the law . . . . [and] the Constitution places limits
45
Cf. Lienhart v. Commonwealth , Ky., 953 S .W.2d 70 (1997) (where the
defendant received concurrent sentences of one (1) and five (5) years, and the Court
held that the appellant "completed service of the one (1) year sentence after serving
the first year of the five (5) year sentence) . Of course, Appellant had no entitlement (or
legitimate expectation) that he would be released from prison upon satisfaction of the
minimum expiration date of his first sentence because under KRS 532 .120(1)(a) - an
original provision of the Kentucky Penal Code that was in existence two (2) decades
before Appellant's offenses - an inmate is not released from KDOC custody until he
satisfies the sentence with the longest unexpired time left to run . A hypothetical might
further clarify this concept . If we twist the facts slightly, and imagine that if, instead of
being the longest unexpired term because of the KRS 197.045(4) requirements for good
time credit, Appellant's concurrent second sentence had "the longest unexpired time to
run" because it was simply a longer sentence - say, fifteen (15) years instead of ten
(10) - then it is clear that, although Appellant may have satisfied the first ten (10) year
sentence when he reached the minimum expiration date for that offense, he could not
be released from prison until he served the additional time he owed on the second
fifteen (15) year offense . We find it inconsequential that it is KRS 197.045(4)'s
precondition to good time credit rather than a longer maximum term that makes
Appellant's second, concurrent sentence the one with the longest unexpired time to run .
-1 7-
on the sovereign's ability to use its lawmaking power to modify bargains it has made
with its subjects ."
46
What Appellant cannot demonstrate is that, when the General
Assembly enacted KRS 197.045(4), the Commonwealth modified or breached any
"bargain" with him in a manner that increased the punishment for his offenses .
Each
ten (10) year sentence Appellant received was within the applicable penalty range, and,
even though KRS 197.045(4) places a precondition to Appellant's privilege to receive
good time credits, there is no scenario under which Appellant will be required to serve
more than ten (10) years for any of those offenses . Appellant's argument is that KRS
197.045(4) "changed the rules of the game" as to good time eligibility. Given that both
KRS 197.045(1) non-educational good time and KRS 197 .045(3) meritorious good time
awards are discretionary, however, the fact remains that the Commonwealth never
made a "bargain" with Appellant that would entitle him to good time reductions on either
his first or his second sentence. Nor has the Commonwealth, via statute, regulation, or
any another enactment, ever pledged that any credits an inmate accumulated toward
one sentence would be applied in the same manner toward a subsequently-ordered
concurrent sentence. This distinguishes the facts of this case from those in Weaver v.
Graham , where Florida statutes provided for amounts of mandatory "gain time credits"
to be deducted from the sentence of every prisoner with good conduct.47 Stated
otherwise, at 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
46
Lynce v. Mathis , 519 U .S . at 440, 117 S.Ct . at 896, 137 L .Ed .2d at 71 .
47
See Weaver v. Graham, 450 U.S . at 26, 101 S.Ct. at 962-3, 67 L.Ed .2d at 21 .
-18-
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 have received is "too attenuated and speculative to constitute an
ex post facto violation ."48 In Abed v. Armstrong ,49 for example, the Second Circuit
addressed an ex post facto challenge to a directive from the Connecticut Department of
Corrections disqualifying any inmate found to be a prison gang member from earning
good time credit. Because Connecticut's good time statute was discretionary, the court
distinguished Weaver v. Graham and Lynce v. Mathis and denied the ex post facto
claim :
Appellant's ex post facto claim fails for several reasons.
His argument that the directive increased his punishment by
restricting his eligibility to earn good time credit assumes that
before the directive Section 18-7a(c) automatically entitled
all inmates to be eligible to earn good time credit. That
assumption is erroneous. Unlike the statutes at issue in both
Weaver and Lynce , Section 18-7a(c) does not automatically
confer the right to earn good time credit on all inmates .
Rather, the statute states only that inmates "may' earn good
time credit, thereby rendering good time credit a
discretionary matter . 50
Other courts have reached similar conclusions with respect to : (1) a Bureau of
Prisons regulation that disqualified inmates with prior convictions for violent felonies
from early release under 18 U .S.C.S. § 3621(e) - a statute permitting the BOP to
48 Hallmark v. Johnson , 118 F.3d 1073, 1078 (5 th Cir. 1997) (finding no ex post
facto violation where the Texas Board of Criminal Justice eliminated the discretion to
restore good time credits previously forfeited for disciplinary violations), cert. denied,
522 U .S . 1003, 118 S .Ct. 576, 139 L.Ed .2d 415 (1997).
49 209 F .3d 63 (2 nd Cir. 2000), cert. denied 531 U .S . 897, 121 S .Ct. 229, 148
L. Ed.2d 164 (2000).
_Id . at 66 (citations omitted) . See also Abed v. Commissioner of Correction ,
682 A.2d 558 (Conn . App . Ct. 1996) (the same inmate raising the same argument with
the same result), cert. denied 531 U .S . 897, 121 S .Ct. 229, 148 L.Ed .2d 164 (2000).
50
- 1 9-
reduce a prisoner's sentence by "not more than one year' upon the prisoner's
completion of a substance abuse treatment program ;51 (2) an Alabama Department of
Corrections regulation regarding the availability of "incentive good time" ("IGT") for
inmates whose "psychological or sociological profile contraindicates an early release
back to society" ;52 (3) Arkansas's outright repeal of its discretionary "extra good time"
statute;53 and (4) Michigan's repeal of its discretionary Prison Overcrowding Emergency
Powers Act (POEPA) .54
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
Wottlin v. Fleming , 136 F .3d 1032,1037-8 (5th Cir. 1998) ("Wottlin's eligibility
for the early release program has always been subject to the discretion of the BOP .
[The regulation] is merely a categorical determination by the BOP that it will not exercise
that discretion in the case of inmates with a prior conviction for certain specified
crimes.").
51
52
Conloque v. Shinbaum , 949 F.2d 378, 382 (11 th Cir. 1991) ("[Regulation 420]
awards incentive good time on a discretionary basis. Section II(h), in effect in 1977, and
its 1986 addition, are couched in broad, discretionary terms . The regulation does not
increase a prisoner's sentence. We thus hold that Regulation 420 II(h) does not violate
the ex post facto clause ."), cert. denied 506 U .S . 841, 113 S .Ct. 123, 121 L.Ed.2d 79
(1992).
53
Ellis v. Norris, 968 S.W.2d 609, 611-612 (Ark. 1998) (interpreting footnote 3 in
Department of Corrections v. Morales , and distinguishing Weaver v. Graham because
Arkansas's "extra good time" statute was discretionary), cert. denied , 532 U.S . 935, 121
S.Ct. 1389, 149 L .Ed .2d 313 (2001).
54
Payne v. Michigan Department of Corrections , 619 N .W.2d 719, 721 (Mich . Ct.
App . 2000) ("[Unlike Weaver ,l [i]n the case at hand, the award of emergency credits
was not similarly automatic . A significant feature was the discretionary authority given
to the governor. . . . This discretionary authority means that what plaintiff lost was the
opportunity to be awarded early release credits if the Governor determined that certain
conditions, not under plaintiff's control, came into being .").
- 20-
"increase in punishment" prohibited by the Ex Post Facto Clause . Accordingly, on the
facts presented in this case, there is no constitutional basis to require the KDOC to
ignore KRS 197.045(4) and KRS 532.120(1)(a) or to release Appellant prior to his
maximum expiration date .
IV. CONCLUSION
For the above reasons, we affirm the decision of the Court of Appeals.
Lambert, C.J. ; Cooper, Graves, Johnstone and Wintersheimer, JJ., concur.
Stumbo, J ., dissents by separate opinion .
COUNSEL FOR APPELLANT :
John Palombi
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Brenn Oliver Combs
Department of Corrections
Office of General Counsel
2439 Lawrenceburg Road
PO Box 2400
Frankfort, Kentucky 40601
Stephen P. Durham
Department of Corrections
Office of General Counsel
2439 Lawrenceburg Road
PO Box 2400
Frankfort, Kentucky 40601
RENDERED : DECEMBER 18, 2003
TO BE PUBLISHED
,Suprmttr Qlaurf of ~mfurkg
2001-SC-0473-DG
SHIRLEY MARTIN
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
NO. 2001-CA-0858
OLDHAM CIRCUIT COURT NO . 2001-CI-00197
LARRY CHANDLER, WARDEN, LUTHER
LUCKETT CORRECTIONAL COMPLEX
APPELLEE
DISSENTING OPINION BY JUSTICE STUMBO
The primary issue presented is whether the sex offender treatment requirement
of KRS 197 .045(4) has been applied ex post facto, thereby depriving Appellant of good
time credit awarded on an earlier imposed concurrent sentence. A majority of this
Court has determined that there were no violations of federal or state ex post facto
protections . Respectfully, I must dissent, as it is my belief that KRS 197 .045(4) has
been impermissibly applied in this case.
The Court of Appeals considered a case similar to the one at bar in Lozier v.
Commonwealth , Ky. App ., 32 S .W.3d 511 (2000) . Lozier was indicted in 1997 and pled
guilty to a sex offense in 1999. During her sentencing hearing, she challenged the
application of KRS 197 .045(4) to a charge arising prior to the statute's enactment . The
Court of Appeals determined that KRS 197.045(4) did not impose any additional
punishment upon Lozier, and, thus, she was not disadvantaged . Id . at 514. The court
reasoned that KRS 197 .045(4) did not deprive Lozier of her opportunity to receive good
time credit, but only deferred the effective date of such credit until a sex offender
treatment program was completed . Id . At the conclusion of the treatment program,
Lozier would then have any accumulated good time credited against the time remaining
on her sentence . Id .
Appellant argues that this case can be distinguished from Lozier because he,
unlike Lozier, has actually been deprived of previously earned good time credits. I
agree .
Appellant had already amassed good time credit totaling more than three years
before he entered guilty pleas to rape and sodomy charges in 1999 . However, all of the
credit Appellant accumulated was impermissibly withheld as a result of an improper
calculation of his release date . Applying KRS 197 .045(4) to the more recent charges,
the Department of Corrections erroneously determined that Appellant's sentence
stemming from his 1999 conviction was not subject to any earned good time credit .
KRS 197 .035(2) provides that "[i]f the additional sentence is designated to be served
concurrently, or the commitment is silent, he shall be considered as having started to
serve said sentence on the day he was committed on the first sentence ." Essentially,
Appellant began serving his sentence resulting from the 1999 conviction on the same
day he began serving time on the 1995 incest conviction . Therefore, I conclude that
any previously earned good time credit from the earlier sentence is equally applicable to
the concurrent sentence imposed upon Appellant in 1999 .
"To fall within the ex post facto prohibition, a law must be retrospective -- that is,
`it must apply to events occurring before its enactment' -- and it `must disadvantage the
2
offender affected by it,' by altering the definition of criminal conduct or increasing the
punishment for the crime ." Lynce v. Mathis , 519 U .S . 433, 441, 117 S . Ct. 891, 896,
137 L. Ed . 2d 63 (1997) (citations omitted) .
KRS 197.045(4) was enacted on July 15, 1998 . In this case, said statute is
being applied to criminal offenses committed in 1994, which, of course, occurred prior
to the enactment of the statute. As such, there is no question that KRS 197.045(4) is
being applied in a retrospective fashion .
Furthermore, the application of KRS 197 .045(4) has disadvantaged Appellant by
increasing his punishment . While Appellant's prison term has not in fact been
increased beyond a period of ten years, the application of the statute against Appellant
has, for all intents and purposes, worked to increase his punishment via the deprivation
of good time credit previously awarded to him. If this time had been credited correctly,
Appellant would have been released from state custody by now .
In my view, Appellant has experienced an increase in punishment ; the ex post
facto protections, which should have been afforded to Appellant, have been violated .
Accordingly, under the circumstances and facts presented, I would hold that KRS
197 .045(4) has been unconstitutionally applied to Appellant.
For the reasons aforesaid, I would reverse the decision of the Court of Appeals
and remand to the Oldham Circuit Court for consideration of the merits of Appellant's
habeas petition .
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