Rider v. Commonwealth

460 S.W.3d 909, 2014 WL 199064, 2014 Ky. App. Unpub. LEXIS 45, 2014 Ky. App. LEXIS 196
CourtCourt of Appeals of Kentucky
DecidedJanuary 17, 2014
DocketNo. 2013-CA-000136-MR
StatusPublished

This text of 460 S.W.3d 909 (Rider v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rider v. Commonwealth, 460 S.W.3d 909, 2014 WL 199064, 2014 Ky. App. Unpub. LEXIS 45, 2014 Ky. App. LEXIS 196 (Ky. Ct. App. 2014).

Opinion

OPINION

DIXON, Judge.

Appellant, Laurence Rider, appeals pro se from an order of the Knox Circuit Court denying his motion .to amend his sentence under CR 60.02. Finding no error, we affirm.

In October 2009, Appellant entered a guilty plea in the Knox Circuit Court to first-degree sexual abuse and kidnapping. Pursuant to the plea agreement, Appellant was sentenced to a total of fifteen years’ imprisonment and, upon release, would be required to register as a sex offender for a period of twenty years. Further, as required by KRS 532.043, the trial court imposed a five-year period of conditional discharge. Appellant subsequently filed two pro se motions for shock probation, both of which were denied.

On December 7, 2012, Appellant filed a pro se motion to amend his sentence pursuant to CR 60.02(e) and (f), arguing that the Supreme Court’s declaration in Jones v. Commonwealth, 319 S.W.3d 295 (Ky.2010) that KRS 532.043(5) was an unconstitutional violation of the separation of powers doctrine and the legislature’s subsequent amendment of such statute constituted a change in circumstances warranting the amendment of his sentence.

On December 26, 2012, the trial court entered an order denying Appellant’s motion, finding KRS 532.043(5) was not an ex post facto law and that it was the intent of the legislature that KRS 532.043, and its amendments apply retroactively. Appellant thereafter appealed to this Court as a matter of law.

On appeal, we review the denial of a CR 60.02 motion under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App.2000); Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky.1996). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). As such, we will affirm the trial court’s decision unless there is a showing of some “flagrant miscarriage of justice.” Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.1983).

The version of KRS 532.043(5) under which Appellant was sentenced provided:

(5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing to the Commonwealth’s attorney in the county of conviction. The Commonwealth’s attorney may petition the court to revoke the defendant’s conditional [911]*911discharge and reincarcerate the defendant as set forth in KRS 532.060.

However, in Jones v. Commonwealth, 319 S.W.3d 295 (Ky.2010), the Kentucky Supreme Court held that KRS 532.043(5) violated the separation of powers doctrine by giving the judicial branch rather than the executive branch the power to revoke conditional discharge1 imposed after a period of incarceration:

The statutory mixture of the role of the judiciary within the role of the executive branch is fatal to the legislative scheme. Section 27 of the Kentucky Constitution creates three distinct branches of government, and Section 28 precludes one branch from exercising any power belonging to the other branches.
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The General Assembly can, consistent with the separation of powers doctrine, create a form of conditional release with terms and supervision by the executive branch. However, the statutory scheme runs afoul of the separation of powers doctrine when revocation is the responsibility of the judiciary. Once a prisoner is turned over to the Department of Corrections for execution of the sentence, the power to determine the period of incarceration passes to the executive branch.

Jones, 319 S.W.3d at 299-300 (footnote omitted). However, the Court specifically set forth that their “ruling [was] limited to KRS 532.043(5)[,]” and went on to opine that “[o]nly the revocation procedure established by this subsection is unconstitutional. Because subsection (5) is severable from the remainder of the statute, the statute’s other provisions remain in force.” Id. (footnote omitted).

Subsequently, in 2011 the legislature amended KRS 532.043 and placed revocation authority with the parole board:

(5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing by the Division of Probation and Parole. Notice of the violation shall be sent to the Parole Board to determine whether probable cause exists to revoke the defendant’s postincarceration supervision and reincarcerate the defendant as set forth in KRS 532.060.

KRS 532.043(5). We agree with the trial court that the amendment to KRS 532.043(5) is clearly not an ex post facto law as it does not “reach[ ] back in time to punish acts which occurred before enactment of the law.” 16B Am.Jur.2d Constitutional Law § 690 (2013). See also Hyatt v. Commonwealth, 72 S.W.3d 566 (Ky.2002), cert. denied, 538 U.S. 909, 123 S.Ct. 1481, 155 L.Ed.2d 230 (2003). The 2011 amendment to KRS 532.043(5) merely established a new procedure for adjudicating the revocation of conditional discharge. It did not create a new crime or enhance an existing crime, it did not in itself enhance the penalty for an existing crime, and it did not in any way alter the rules of evidence in regards to the offense charged.

Further, we find no merit in Appellant’s claim that because KRS 532.043

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Related

Baker v. Fletcher
204 S.W.3d 589 (Kentucky Supreme Court, 2006)
Commonwealth v. Harrelson
14 S.W.3d 541 (Kentucky Supreme Court, 2000)
Commonwealth v. English
993 S.W.2d 941 (Kentucky Supreme Court, 1999)
Rodgers v. Commonwealth
285 S.W.3d 740 (Kentucky Supreme Court, 2009)
Hyatt v. Commonwealth
72 S.W.3d 566 (Kentucky Supreme Court, 2002)
White v. Commonwealth
32 S.W.3d 83 (Court of Appeals of Kentucky, 2000)
Jones v. Commonwealth
319 S.W.3d 295 (Kentucky Supreme Court, 2010)
Brown v. Commonwealth
932 S.W.2d 359 (Kentucky Supreme Court, 1996)
Gross v. Commonwealth
648 S.W.2d 853 (Kentucky Supreme Court, 1983)

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Bluebook (online)
460 S.W.3d 909, 2014 WL 199064, 2014 Ky. App. Unpub. LEXIS 45, 2014 Ky. App. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rider-v-commonwealth-kyctapp-2014.