RENDERED: AUGUST 14, 2026; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0247-MR
NICHOLAS JOHNSTON APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 24-CI-00293
JOSH CLAY AND KENTUCKY APPELLEES DEPARTMENT OF CORRECTIONS
OPINION
AFFIRMING
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BEFORE: CALDWELL, COMBS, AND EASTON, JUDGES. CALDWELL, JUDGE: Nicholas Johnston appeals from an order of the Franklin Circuit Court dismissing his petition for declaration of rights where he alleged the Appellees (hereinafter “DOC”) had incorrectly calculated the date of his parole eligibility. We affirm.
BACKGROUND
Johnston is currently an inmate at the Eastern Kentucky Correctional Complex (“EKCC”).
In June of 2016, Johnston was convicted of two counts of controlled substance endangerment to child in the third degree, in Jefferson County Circuit Court Indictment 15-CR-02277. Johnston received a five-year prison sentence for each count, with the two sentences designated to run concurrently. In November of 2016, Johnston was granted parole.
On November 14, 2017, while still on parole, Johnston was arrested for first-degree robbery and was charged with the offense in Jefferson County Circuit Court Indictment 17-CR-03579. Johnston’s parole was revoked after his arrest for robbery.
Johnston was eventually convicted of the first-degree robbery charge in Indictment 17-CR-03579. On April 10, 2019, he received a ten-year prison sentence for robbery, to run consecutively with his sentence on the child endangerment conviction. Johnston thus received a total sentence of fifteen years for the two convictions.
At some point, Johnston became aware his earliest parole eligibility date had been calculated to occur in October 2027. On January 11, 2024, Johnston filed for administrative review of his parole eligibility date with EKCC and alleged
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it had been erroneously calculated. Johnston asserted that calculation of his parole eligibility date had incorrectly failed to credit time in custody that had accrued from the date of his arrest for first-degree robbery on November 14, 2017, to the date of his conviction on April 10, 2019. Johnston alleged that, if correctly calculated, his parole eligibility date would occur in April of 2026, rather than October of 2027.
An Offender Information Specialist with EKCC responded to Johnston’s request with correspondence indicating his parole eligibility date was reviewed by the Central Office Offender Information Services Branch and had again been calculated to occur in October of 2027. Johnston then appealed the written response to the Offender Information Services Branch. The DOC issued written findings in a letter informing Johnston his administrative appeal had been denied. The DOC determined that Johnston had returned to custody as a parole violator on November 14, 2017, and that the time Johnston spent in custody after his arrest but prior to his sentencing for robbery was spent as a state inmate for a previous offense, which prohibited him from earning jail credit on the sentence for armed robbery. The DOC found that Johnston was not sentenced on his robbery conviction until April 9, 2019, and that this was the correct date from which to calculate his parole eligibility.
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Johnston thereafter filed an action in Franklin Circuit Court contending that he should be eligible for parole in April 2026. The DOC filed a Motion to Dismiss, arguing Johnston’s parole eligibility date had been correctly calculated. The Franklin Circuit Court granted the DOC’s motion to dismiss in an Order dated January 22, 2025.
This appeal follows.
STANDARD OF REVIEW
The standard of review of a circuit court ruling on a petition for declaration of rights is de novo.
A motion to dismiss for failure to state a claim under CR[1] 12.02(f) is a question of law and is therefore subject to de novo review. Campbell v. Ballard, 559 S.W.3d 869, 870 (Ky. App. 2018) (citing Carruthers v.
Edwards, 395 S.W.3d 488, 491 (Ky. App. 2012)). The pleadings must be liberally construed in a light most favorable to petitioner, and the allegations contained in the complaint are taken as true. Id. at 870-71.
Hopkins v. Smith, 592 S.W.3d 319, 322 (Ky. App. 2019).
ARGUMENTS ON APPEAL
We have carefully reviewed Johnston’s Appellant brief, as well as his petition to the circuit court, with the attached administrative record. Although his pro se arguments are at times difficult to discern, it is clear that Johnston argues
1 Kentucky Rules of Civil Procedure.
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that the DOC was statutorily required to calculate the date of his parole eligibility with reference to his date of arrest.
In his Appellant brief, Johnston identifies the following statutory language as critical to his argument:
KRS[2] 197.045(3) provides in relevant part:
When two (2) or more consecutive sentences are to be served, the several sentences shall be merged and served in the aggregate for the purposes of the sentencing credit computation or in computing dates of expiration of sentence.
KRS 532.120(1) provides in relevant part:
An indeterminate sentence of imprisonment commences when the prisoner is received in an institution under the jurisdiction of the Department of Corrections.
KRS 532.120(3) provides in relevant part:
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 Department of Corrections toward service of the maximum term of imprisonment in cases involving a felony sentence[.]
Appellant brief, p. 3-4.
Johnston contends that a correct and harmonious interpretation of these provisions required the DOC to calculate his parole eligibility date with
2 Kentucky Revised Statutes.
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reference to his date of arrest for first-degree robbery rather than the date of his conviction for that offense. Johnston further argues that support for his statutory interpretation may be found within the Kentucky Supreme Court’s opinion in Kentucky Department of Corrections v. Dixon, 572 S.W.3d 46 (Ky. 2019).
The DOC argues that the circuit court correctly determined that Johnston’s parole eligibility date had been calculated accurately, in accordance with applicable statutes and regulations. It argues that Johnston offers an incorrect interpretation of statutory law and that Dixon is irrelevant to any issues raised in the petition for declaratory relief. The DOC argues that, under the facts at hand, there is no authority for the calculation of Johnston’s parole eligibility with reference to the date of his arrest. Rather, it argues, calculation of parole eligibility in the manner Johnston advocates would shorten the portion of his sentence, as a violent offender, to a lesser period than he is statutorily required to serve before any potential release on parole.
ANALYSIS
A “statute must be read as a whole and in context with other parts of the law. All parts of the statute must be given equal effect so that no part of the statute will become meaningless or ineffectual.” Dixon, 572 S.W.3d at 49 (quoting Lewis v. Jackson Energy Co-op. Corp., 189 S.W.3d 87, 92 (Ky. 2005)). Furthermore, “[w]hen construing multiple statutes, the statutes are read in harmony
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with one another in order to effectuate all statutes, if possible.” Id. at 49 (internal quotation marks omitted).
Johnston asserts that his argument presents a harmonious application of all statutory provisions he cites. However, it is quite difficult to discern exactly what he attempts to assert about the interrelationship between those provisions. Nevertheless, it is clear that his argument for referencing the date of his arrest for calculation of parole eligibility turns upon the applicability of KRS 532.120(3) to his sentence for first-degree robbery.
Johnston’s Parole Eligibility Date, as Calculated by the DOC, Does Not Violate KRS 532.120(3)
Time spent in custody prior to commencement of a sentence results in credit toward service of that sentence only where the prior custody was “as a result of the charge that culminated in the sentence[.]” KRS 532.120(3). In his petition, Johnston alleged he was released on parole from the child endangerment sentence on November 1, 2016, “and remained on parole for 378 days” until “[o]n November 14, 2017, Johnston was arrested for [first degree robbery] and his parole was revoked.” (Record on Appeal, p. 3.)
From the allegations in his petition, it appears that, but for his being arrested for and charged with first-degree robbery, Johnston would not have been subject to parole revocation on the child endangerment charge. Accordingly, his time spent in custody, between his arrest and sentencing for first-degree robbery,
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might reasonably be viewed to have occurred “as a result of” the first-degree robbery charge that culminated in his sentence. However, this Court has previously addressed any ambiguity as to the applicability of KRS 532.120(3) to the disputed period Johnston was in custody in a case that is factually similar.
In Mills v. Commonwealth, Antonio Mills was arrested and placed in jail pursuant to a felony indictment while he was on parole. 723 S.W.2d 859, 859 (Ky. App. 1986). While in custody, Mills was subject to parole revocation; the parole violation stemmed from the charges he had been arrested for. Id. After being convicted and sentenced for the latter charges, Mills contended that, pursuant to KRS 532.120(3),3 he should have received a sentencing credit for the entire period he spent in custody prior to his sentencing. Id.
In resolution of what we identified as an ambiguity in KRS 532.120(3) under those facts, we stated as follows:
For aid in interpreting KRS 532.120(3), we look to the commentary to the penal code. Such use of the commentary is permitted by KRS 500.100. See [Williams v. Commonwealth, 639 S.W.2d 786 (Ky. App.
1982); Smith v. Commonwealth, 587 S.W.2d 266 (Ky.
App. 1979)]. The commentary to KRS 532.120(3)
provides that “[i]t should be noticed that this subsection provides credit only for the amount of time spent in custody for the offense for which an offender stands
3 In 2011, KRS 532.120(3) was amended “to assign to [the DOC] the task of giving custody credit to inmates in most felony cases.” Bowling v. White, 480 S.W.3d 911, 914–15 (Ky. 2015). In the version in effect at the time of the opinion in Mills, this task was with the trial court. However, the relevant language was otherwise the same.
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convicted.” This statement offers a stronger indication that only the time spent in custody, which is solely due to the charge for which a defendant is ultimately sentenced, should be credited against that sentence.
An additional ground in support of the Commonwealth’s position becomes apparent when one considers the effect of granting credit for the time spent due to the appellant’s parole revocation. The appellant was on parole from a term of imprisonment imposed pursuant to a prior sentence and was returned to prison for violating the conditions of that parole. If credit is given for the 130 days the appellant spent at the state facility, the appellant would, in effect, be rewarded for violating his parole in a way that resulted in a subsequent term of imprisonment.
We do not believe the legislature had this intention in mind when it enacted KRS 532.120(3).
723 S.W.2d at 860–61. This reasoning is no less applicable to the factual scenario presented in Johnston’s petition.
Here, as alleged in his petition to the circuit court, Johnston’s parole was revoked when he was arrested for first-degree robbery on November 14, 2017. This time he spent in custody from that date until his sentencing, was not solely “as a result of the [first-degree robbery] charge that culminated in [the] sentence” that Johnston received. Mills, 723 S.W.2d at 860, KRS 532.120(3); see also 501 KAR4 1:030 § 3(3)(b)1. (“If a confined prisoner is a returned parole violator who receives an additional consecutive sentence, his parole eligibility shall be set on the length
4 Kentucky Administrative Regulations.
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on the new sentence only, beginning from the date of his final sentencing, unless the board has previously set a new parole eligibility date.”) (emphasis added).
“Time spent in custody prior to the commencement of a sentence . . .
shall be credited . . . toward service of the maximum term of imprisonment.” KRS 532.120(3) (emphasis added). Here, the maximum term of imprisonment for the aggregate sentence that Johnston received as a result of his consecutive sentences was a total of fifteen years. Johnston does not allege that the DOC failed to extend credit for the disputed time in custody toward this maximum term.
As Johnston committed first-degree robbery while he was on felony probation for child endangerment, KRS 533.060(2) required that “the period of confinement for [first-degree robbery] shall not run concurrently with [the child endangerment] sentence.” Crediting Johnston with time spent in custody as a parole violator would result in his concurrently serving the two sentences for that period. Martin v. Commonwealth, 957 S.W.2d 262, 264 (Ky. App. 1997); Handley v. Commonwealth, 653 S.W.2d 165, 166 (Ky. App. 1983).
Parole eligibility is contingent on an offender having served a designated portion of an indeterminate sentence. Johnston’s conviction of first- degree robbery qualified him as a “violent offender” pursuant to KRS 439.3401(1)(n). First-degree robbery is classified as a Class B felony in KRS 515.020(2). As such, KRS 439.3401(3)(a) requires that Johnston “shall not be
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released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed.” Id.; see also 501 KAR 1:030 § 3(1)(e)(4)l.
Accordingly, the legislature has made unmistakable its intent that Johnston be required to serve at least eight (8) years and six (6) months of the ten (10) year sentence for first-degree robbery before any eligibility for parole. If Johnston’s parole eligibility date were calculated to be April 2026, as he argues it should be, his potential release on parole might occur after having served only seven (7) years of the ten-year sentence which qualified him as a violent offender. This would result in a shortening of the minimum time Johnston must serve for the first-degree robbery sentence to a period less than that required by either KRS 439.3401(3)(a) or KRS 533.060(2).
We cannot say the circuit court erred, as a matter of law, when it concluded the DOC correctly determined that the time Johnston spent in custody, between November of 2017 and his conviction in April of 2019, related to Johnston’s violation of his parole, and the five-year sentence he had already received for child endangerment.
Kentucky Department of Corrections v. Dixon Does Not Support Johnston’s Argument That his Parole Eligibility Date, as Calculated by the DOC, is in Violation of KRS 532.120(1) or KRS 197.045(3)
Johnston argues that his statutory interpretation is supported by Kentucky Department of Corrections v. Dixon, where our Supreme Court
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examined the interrelationship between “KRS 197.047, relating to work-time sentence credit for state prisoners, and KRS 532.120, relating to calculating terms of imprisonment[,]” to determine whether a prisoner serving an aggregate term composed of sentences for both violent and nonviolent offenses may be eligible for work-time credit. 572 S.W.3d at 48.
In that case, Mark Dixon had been sentenced to prison terms of fifteen years for first-degree burglary, ten years for first-degree assault, and one year for assault under extreme emotional disturbance. Id. at 47. A final judgment and order, entered in 2001, required the three sentences to be served consecutively, resulting in an aggregate sentence of twenty-six years in prison. Id.
In 2014, Dixon initiated administrative review of his sentence, arguing that the ten-year sentence for first-degree assault, the only conviction subject to the violent offender statute (KRS 439.3401), had been served. Id. Following exhaustion of administrative remedies and dismissal of a petition for declaratory rights, Dixon appealed to this Court. We held that, despite the specific disallowance in KRS 197.047 for work-time credit to inmates serving a sentence under the violent offender statute, Dixon’s total sentence could be partitioned into violent and nonviolent component parts. Id. at 50.
Discretionary review to the Supreme Court was granted in Dixon.
The DOC argued to our Supreme Court that KRS 532.120(1)(b) dictated that
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Dixon’s three consecutive, indeterminate sentences had been combined into a single twenty-six-year sentence and that the DOC accordingly lacked authority for “unpacking” this maximum aggregate sentence for application of a work-time credit and designation of any portion as being for a nonviolent offense. 572 S.W.3d at 48.
The Dixon Court agreed with the DOC that, for purposes of awarding work-time sentence credit under KRS 197.047, a violent offender’s aggregate sentence could not be separated into discrete violent and nonviolent components. 572 S.W.3d at 47. As a result, the Court concluded, “[t]he disallowance of work- time sentence credit to a violent offender in KRS 197.047 applies to the single, continuous sentence; the violent offender cannot receive work-time credit on nonviolent sentences which have merged into the whole.” Id. at 52.
The Dixon Court noted that the provisions in KRS 197.047, allowing for discretionary awards of work-time credit toward an aggregate sentence, were comparable to the provisions in KRS 197.045 allowing for discretionary awards of “good-time” credit. 572 S.W.3d at 51. And, as with the prohibition in KRS 197.047(6)(b) of awarding work-time credit to violent offenders, KRS 439.3401(4) prohibited violent offenders from being awarded any sentence credit under KRS 197.045(1)(b)1. for good behavior. 572 S.W.3d at 52. The Dixon Court indicated it “would reach the same result” if it were tasked with determining whether an
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inmate serving a sentence for both violent and nonviolent offenses could be awarded good-time credit. Id.
Johnston argues that, by failing to extend credit for time spent in custody prior to his latter conviction, the DOC has improperly “unpacked” his aggregate sentence for robbery and child endangerment in contravention of Dixon. He emphasizes the references to aggregate sentences in KRS 532.120(1) and KRS 197.045(3). Johnston’s reasoning here is difficult to follow.
Despite his assertions about aggregate sentences, Johnston contends that Dixon must be read to require that credit for the disputed period of custody must be applied to his ten-year first-degree robbery sentence alone. As best we can follow, if Johnston’s reasoning regarding Dixon were correct, the DOC would be required to calculate his parole eligibility date by requiring that he first serve 85% of his aggregate fifteen-year sentence, rather than the ten-year sentence under the violent offender statute.
We are unpersuaded that the holding in Dixon applies in the manner Johnston advocates. Moreover, we locate no support in that case for Johnston’s overarching assertion—that an aggregate sentence must commence upon arrest for the underlying offense, regardless of whether the inmate has returned to custody as a parole violator in a prior conviction. As the DOC points out, nowhere did the
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Dixon Court include any discussion touching upon whether a sentence commences upon arrest for the underlying offense.
Commentary in Dixon regarding its applicability toward some sentencing credits provided pursuant to KRS 197.045 does not support Johnston’s argument. KRS 197.045(1)(a)1. does provide for a mandatory sentencing credit for “[p]rior confinement as specified in KRS 532.120[.]” (Emphasis added.) However, as we pointed out above, Johnston does not allege the DOC failed to credit his time in custody toward his maximum aggregate sentence. Furthermore, the Dixon Court carefully distinguished the mandatory sentencing credits in KRS 197.045 from its discretionary sentencing credits that were noted as comparable to work-time credit in KRS 197.047. 572 S.W.3d at 51. Even if Johnston’s proposed application of Dixon were sound, he has not established any applicability of that opinion to the mandatory credit, pursuant to KRS 197.045(1)(a)1. and KRS 532.120(3), for prior time spent in custody.
In sum, even with the pleadings liberally construed in a light most favorable to Johnston, and the factual allegations contained in his petition taken as true, Johnston has not established any error of law by the circuit court in dismissing his petition for declaration of rights.
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CONCLUSION
For the foregoing reasons, we affirm the Franklin Circuit Court’s order dismissing Johnston’s petition.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Nicholas Johnston, pro se Robert Chaney West Liberty, Kentucky Frankfort, Kentucky