dissenting.
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 im-permissibly 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 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, *554there 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.