RENDERED: JULY 23, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0790-MR
DAYTON JONES APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 20-CI-00236
COMMONWEALTH OF KENTUCKY; COMMONWEALTH OF KENTUCKY’S JUSTICE AND PUBLIC SAFETY CABINET; AND OFFICER MEGAN GOSS, IN HER OFFICIAL CAPACITY APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.
GOODWINE, JUDGE: Dayton Jones (“Jones”) appeals from the May 29, 2020
judgment of the Franklin Circuit Court dismissing his action for declaratory and
injunctive relief. We affirm. BACKGROUND
In 2014, Jones was indicted by a Christian County grand jury on one
count each of sodomy in the first degree with serious physical injury;1 promoting a
sexual performance by a minor with physical injury;2 use of a minor in a sexual
performance with physical injury;3 and distribution of matter portraying a sexual
performance by a minor.4 On December 22, 2016, Jones pleaded guilty to one
count each of sodomy in the first degree with no serious injury,5 wanton
endangerment in the first degree,6 and distribution of matter portraying a sexual
performance by a minor. Jones was sentenced to fifteen years’ imprisonment. As
part of his plea agreement, Jones acknowledged that he would be required to
register as a sex offender under the Kentucky Sex Offender Registration Act
(“SORA”). Record (“R.”) at 37.
1 Kentucky Revised Statutes (“KRS”) 510.070, a Class A felony. 2 KRS 531.320, a Class A felony. 3 KRS 531.310, a Class A felony. 4 KRS 531.340, a Class D felony. 5 KRS 510.070, a Class B felony. 6 KRS 508.060, a Class D felony.
-2- During his term of imprisonment, Jones petitioned former Governor
Matt Bevin for clemency. In 2019, Governor Bevin issued Executive Order 2019-
1332 which is titled “PARDON & COMMUTATION” and reads as follows:
WHEREAS, Dayton Ross Jones was convicted in Christian County Court in 2016 of sodomy, wanton endangerment and distributing matter portraying sexual performance by [a] minor; and
NOW, THEREFORE, I, Matthew G. Bevin, Governor of the Commonwealth of Kentucky, in consideration of the foregoing, and by the virtue of the authority vested in me by Section 77, 145 and 150 of the Constitution of the Commonwealth of Kentucky, do hereby commute the sentence of Dayton Ross Jones to time served.
R. at 14. Upon his release from incarceration, Parole Officer Megan Goss
contacted Jones regarding his term of sex offender post-incarceration supervision.
Subsequently, Jones filed a complaint in the Franklin Circuit Court seeking
declaration that he need not comply with the SORA or post-incarceration
supervision.
Appellees moved to dismiss the complaint under CR7 12.02(f) arguing
Jones failed to state a claim upon which relief could be granted. In granting
appellees’ motions, the circuit court found:
In the present case, the [c]ourt finds that [Jones], as a matter of law, was granted a commutation and not a pardon. This is apparent from a plain reading of the text
7 Kentucky Rules of Civil Procedure.
-3- of the document and construing the document as a whole. Though titled “Pardon & Commutation,” the operative language of the [o]rder is contained within its body, which contains no directive that could be construed to wipe out the consequences of the conviction. The [o]rder merely “commute[s] the sentence of Dayton Ross Jones to time served” and does not purport to grant him a pardon in any way. By commuting his sentence, former Governor Bevin provided for [Jones’] immediate release from custody and nothing else.
R. at 213. No post-judgment motions were filed by either party. This appeal
followed.
STANDARD OF REVIEW
“Since a motion to dismiss for failure to state a claim upon which
relief may be granted is a pure question of law, a reviewing court owes no
deference to a trial court’s determination; instead, an appellate court reviews the
issue de novo.” Littleton v. Plybon, 395 S.W.3d 505, 507 (Ky. App. 2012)
(citation omitted). The circuit court should not grant a motion to dismiss “unless it
appears the pleading party would not be entitled to relief under any set of facts
which could be proved in support of his claim.” Cotton v. National Collegiate
Athletic Ass’n, 587 S.W.3d 356, 361 (Ky. App. 2019) (citation omitted).
ANALYSIS
On appeal, Jones argues: (1) Executive Order 2019-1332 is
ambiguous; (2) the trial court erred by failing to analyze operative language in the
-4- executive order; and (3) the trial court failed to consider his arguments relating to
equitable estoppel and issue preclusion.
The Governor has the power to commute sentences and grant pardons
under Section 77 of the Kentucky Constitution. The impact of a commutation is
more limited than that of a pardon. A commutation voids a greater sentence by
imposing a lesser one. See Stanford v. Commonwealth, 248 S.W.3d 579, 581 (Ky.
App. 2007). Conversely, a pardon officially nullifies a punishment or other legal
consequences of a crime. Harscher v. Commonwealth, 327 S.W.3d 519, 522 (Ky.
App. 2010) (citation omitted). Only a pardon relieves an offender from “all the
consequences which the law has annexed to the commission of the public offense
of which he has been pardoned, and attains new credit and capacity, as if he had
never committed that public offense[.]” Id. (internal quotation marks and citation
omitted).
Jones argues Executive Order 2019-1332 is ambiguous as to whether
Governor Bevin intended to grant him a pardon or commutation. Executive orders
granting clemency are construed according to the principles applicable to other
written instruments. See Adkins v. Commonwealth, 23 S.W.2d 277, 280-81 (Ky.
1929) (citations omitted). Under these principles, an instrument is ambiguous
when it is reasonably susceptible to different or inconsistent interpretations.
Cantrell Supply, Inc. v. Liberty Mutual Ins. Co., 94 S.W.3d 381, 385 (Ky. App.
-5- 2002) (citations omitted). If ambiguity exists, the court should determine, if
possible, the intention of the grantor from the instrument as a whole. See
McMullin v. McMullin, 338 S.W.3d 315, 320 (Ky. App. 2011) (citation omitted).
Where there is no ambiguity, “a written instrument will be enforced strictly
according to its terms,” and a court must assign the language therein its ordinary
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RENDERED: JULY 23, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0790-MR
DAYTON JONES APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 20-CI-00236
COMMONWEALTH OF KENTUCKY; COMMONWEALTH OF KENTUCKY’S JUSTICE AND PUBLIC SAFETY CABINET; AND OFFICER MEGAN GOSS, IN HER OFFICIAL CAPACITY APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.
GOODWINE, JUDGE: Dayton Jones (“Jones”) appeals from the May 29, 2020
judgment of the Franklin Circuit Court dismissing his action for declaratory and
injunctive relief. We affirm. BACKGROUND
In 2014, Jones was indicted by a Christian County grand jury on one
count each of sodomy in the first degree with serious physical injury;1 promoting a
sexual performance by a minor with physical injury;2 use of a minor in a sexual
performance with physical injury;3 and distribution of matter portraying a sexual
performance by a minor.4 On December 22, 2016, Jones pleaded guilty to one
count each of sodomy in the first degree with no serious injury,5 wanton
endangerment in the first degree,6 and distribution of matter portraying a sexual
performance by a minor. Jones was sentenced to fifteen years’ imprisonment. As
part of his plea agreement, Jones acknowledged that he would be required to
register as a sex offender under the Kentucky Sex Offender Registration Act
(“SORA”). Record (“R.”) at 37.
1 Kentucky Revised Statutes (“KRS”) 510.070, a Class A felony. 2 KRS 531.320, a Class A felony. 3 KRS 531.310, a Class A felony. 4 KRS 531.340, a Class D felony. 5 KRS 510.070, a Class B felony. 6 KRS 508.060, a Class D felony.
-2- During his term of imprisonment, Jones petitioned former Governor
Matt Bevin for clemency. In 2019, Governor Bevin issued Executive Order 2019-
1332 which is titled “PARDON & COMMUTATION” and reads as follows:
WHEREAS, Dayton Ross Jones was convicted in Christian County Court in 2016 of sodomy, wanton endangerment and distributing matter portraying sexual performance by [a] minor; and
NOW, THEREFORE, I, Matthew G. Bevin, Governor of the Commonwealth of Kentucky, in consideration of the foregoing, and by the virtue of the authority vested in me by Section 77, 145 and 150 of the Constitution of the Commonwealth of Kentucky, do hereby commute the sentence of Dayton Ross Jones to time served.
R. at 14. Upon his release from incarceration, Parole Officer Megan Goss
contacted Jones regarding his term of sex offender post-incarceration supervision.
Subsequently, Jones filed a complaint in the Franklin Circuit Court seeking
declaration that he need not comply with the SORA or post-incarceration
supervision.
Appellees moved to dismiss the complaint under CR7 12.02(f) arguing
Jones failed to state a claim upon which relief could be granted. In granting
appellees’ motions, the circuit court found:
In the present case, the [c]ourt finds that [Jones], as a matter of law, was granted a commutation and not a pardon. This is apparent from a plain reading of the text
7 Kentucky Rules of Civil Procedure.
-3- of the document and construing the document as a whole. Though titled “Pardon & Commutation,” the operative language of the [o]rder is contained within its body, which contains no directive that could be construed to wipe out the consequences of the conviction. The [o]rder merely “commute[s] the sentence of Dayton Ross Jones to time served” and does not purport to grant him a pardon in any way. By commuting his sentence, former Governor Bevin provided for [Jones’] immediate release from custody and nothing else.
R. at 213. No post-judgment motions were filed by either party. This appeal
followed.
STANDARD OF REVIEW
“Since a motion to dismiss for failure to state a claim upon which
relief may be granted is a pure question of law, a reviewing court owes no
deference to a trial court’s determination; instead, an appellate court reviews the
issue de novo.” Littleton v. Plybon, 395 S.W.3d 505, 507 (Ky. App. 2012)
(citation omitted). The circuit court should not grant a motion to dismiss “unless it
appears the pleading party would not be entitled to relief under any set of facts
which could be proved in support of his claim.” Cotton v. National Collegiate
Athletic Ass’n, 587 S.W.3d 356, 361 (Ky. App. 2019) (citation omitted).
ANALYSIS
On appeal, Jones argues: (1) Executive Order 2019-1332 is
ambiguous; (2) the trial court erred by failing to analyze operative language in the
-4- executive order; and (3) the trial court failed to consider his arguments relating to
equitable estoppel and issue preclusion.
The Governor has the power to commute sentences and grant pardons
under Section 77 of the Kentucky Constitution. The impact of a commutation is
more limited than that of a pardon. A commutation voids a greater sentence by
imposing a lesser one. See Stanford v. Commonwealth, 248 S.W.3d 579, 581 (Ky.
App. 2007). Conversely, a pardon officially nullifies a punishment or other legal
consequences of a crime. Harscher v. Commonwealth, 327 S.W.3d 519, 522 (Ky.
App. 2010) (citation omitted). Only a pardon relieves an offender from “all the
consequences which the law has annexed to the commission of the public offense
of which he has been pardoned, and attains new credit and capacity, as if he had
never committed that public offense[.]” Id. (internal quotation marks and citation
omitted).
Jones argues Executive Order 2019-1332 is ambiguous as to whether
Governor Bevin intended to grant him a pardon or commutation. Executive orders
granting clemency are construed according to the principles applicable to other
written instruments. See Adkins v. Commonwealth, 23 S.W.2d 277, 280-81 (Ky.
1929) (citations omitted). Under these principles, an instrument is ambiguous
when it is reasonably susceptible to different or inconsistent interpretations.
Cantrell Supply, Inc. v. Liberty Mutual Ins. Co., 94 S.W.3d 381, 385 (Ky. App.
-5- 2002) (citations omitted). If ambiguity exists, the court should determine, if
possible, the intention of the grantor from the instrument as a whole. See
McMullin v. McMullin, 338 S.W.3d 315, 320 (Ky. App. 2011) (citation omitted).
Where there is no ambiguity, “a written instrument will be enforced strictly
according to its terms,” and a court must assign the language therein its ordinary
meaning without consideration of extrinsic evidence. Frear v. P.T.A. Industries,
Inc., 103 S.W.3d 99, 106 (Ky. 2003) (footnotes omitted).
Herein, Jones repeatedly claims the executive order is ambiguous
because it is titled “pardon” without acknowledging the complete title of the order
is “Pardon & Commutation.” Furthermore, the order as a whole, not the title
alone, must be examined to determine whether Governor Bevin intended to grant
Jones a pardon or commutation of his sentence. The body of the order
unequivocally states its purpose is to “commute the sentence of Dayton Ross Jones
to time served.” R. at 14. There is no ambiguity as to the Governor’s intent and,
giving the terms of the order their ordinary meaning, it can be interpreted only as a
commutation of Jones’ sentence. Therefore, the circuit court did not err.
Finally, we will not review the merits of Jones’ claims that the circuit
court erred by failing to scrutinize the operative language of the executive order or
address his arguments relating to equitable estoppel and issue preclusion. It is
fundamentally the responsibility of the party who asserts a claim to prove the claim
-6- to the satisfaction of the circuit court and, where the court fails to rule on the issue,
the pleading party must seek a ruling by means of a motion under CR 52.02 or CR
59.05. Vinson v. Sorrell, 136 S.W.3d 465, 471 (Ky. 2004); see also Richardson v.
Rees, 283 S.W.3d 257, 265 (Ky. App. 2009). Where a party has not requested a
ruling on a specific issue, this Court lacks the authority to review the claim. J.K. v.
N.J.A., 397 S.W.3d 916, 919 (Ky. App. 2013) (citations omitted). Herein, Jones
did not file any post-judgment motions under CR 52.02 or CR 59.05 requesting the
circuit court further scrutinize the terms of the executive order or address his
remaining arguments. This failure is fatal to Jones’ appeal on these issues.
CONCLUSION
Based on the foregoing, the May 29, 2020 judgment of the Franklin
Circuit Court is affirmed.
ALL CONCUR.
-7- BRIEFS FOR APPELLANT: BRIEF FOR COMMONWEALTH OF KENTUCKY: Daniel J. Canon Indianapolis, Indiana Daniel Cameron Attorney General of Kentucky
Barry L. Dunn Heather L. Becker Jeffrey A. Cross Rewa Zakharia Frankfort, Kentucky
BRIEF FOR KENTUCKY JUSTICE AND PUBLIC SAFETY CABINET AND PROBATION AND PAROLE OFFICER MEGAN GOSS:
Brenn O. Combs Frankfort, Kentucky
-8-