RENDERED: APRIL 18, 2024
TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0293-DG
COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NOS. 2021-CA-0077, 2021-CA-0111,
& 2021-CA-0112
OLDHAM CIRCUIT COURT NO. 13-CR-00124
RICKY D. ULLMAN, JR. APPELLEE
OPINION OF THE COURT BY JUSTICE LAMBERT
REVERSING, REINSTATING, & REMANDING
Ricky Ullman pled guilty to three counts of distribution of a matter
portraying a sexual performance by a minor and of being a second-degree
persistent felony offender (PFO). The Oldham Circuit Court sentenced him to
twelve years, probated for five years. The circuit court imposed several
conditions on Ullman’s probation including, inter alia, to complete a
community-based sex offender treatment program (SOTP), maintain sobriety,
and report to the Division of Probation and Parole as directed. The circuit
court later revoked his probation based on his failure to complete SOTP, his
multiple failed drug screens, and for absconding from probation and parole.
Nearly two years after his probation was revoked, he filed a CR 1 60.02
motion challenging the circuit court’s revocation order on the basis that he
could not be legally required to complete SOTP. The circuit court granted him
CR 60.02 relief and vacated its revocation order. The Court of Appeals
affirmed. After thorough review, we hold that Ullman’s challenge to the
condition that he complete SOTP was untimely and order that the circuit
court’s revocation order be reinstated. We further hold that a sentencing court
may, in accordance with KRS 2 533.030, impose SOTP as a condition of
probation for defendants who have not been convicted of a “sex crime” as that
term is defined by KRS 17.500. Finally, we hold that that Ullman’s secondary
challenge to the circuit court’s revocation order under KRS 439.3106 was not
properly preserved for our review, and that this case must be remanded for
consideration of Ullman’s RCr 3 11.42 claim that has not yet been addressed by
the circuit court.
I. FACTS AND PROCEDURAL BACKGROUND
On September 13, 2013, an Oldham County Grand Jury returned a
seven-count indictment against Ullman. Count I and Count II charged Ullman
with first-degree unlawful transaction with a minor; Count III charged use of a
minor in a sexual performance; Count IV charged rape in the third-degree;
Count V charged unlawful use of electronic means to induce a minor to engage
1 Kentucky Rule of Civil Procedure.
2 Kentucky Revised Statute.
3 Kentucky Rule of Criminal Procedure.
2
in sexual activity; Count VI charged sexual abuse in the first-degree; and
Count VII charged Ullman with being a first-degree PFO.
Although this case was resolved by a plea agreement, this Court discerns
from the record before us that the factual basis for Ullman’s indictment can be
fairly recounted as follows. From approximately June 18, 2013, to June 23,
2013, Ullman, who was thirty-two years old, exchanged sexually explicit text
messages and photographs with the victim in this case, who was fourteen years
old. The victim, Jane, 4 lived in the same apartment complex as Ullman and
was a friend of Ullman’s twelve-year-old daughter. On June 23, 2013, Jane
had a sleepover with Ullman’s daughter at his apartment. After Ullman’s
daughter went to sleep, Jane stayed up with Ullman and at approximately 4:30
am she and Ullman went into his bedroom. Ullman then vaginally raped Jane
for approximately ten minutes and ejaculated on her stomach. Jane disclosed
what occurred to her mother five days later, and her mother reported the
incident to the Oldham County Police Department.
In November 2014, after the Commonwealth made an initial plea offer
and had been engaged in plea negations with Ullman for several months, the
Commonwealth informed the circuit court that Jane had recanted some of her
allegations concerning the rape. The Commonwealth explained that Jane
recanted in text messages sent to Ullman’s daughter, but she did not recant to
law enforcement or anyone else. Nevertheless, the Commonwealth recognized
4 The victim is referred to via pseudonym to protect her privacy.
3
that Jane’s recantation “complicated” its ability to prove the non-cellphone
related offenses in Ullman’s indictment. It accordingly decided to revise its
initial offer on a plea of guilty and resume negotiations with Ullman. It
remained undisputed that Ullman had at least three sexually explicit
photographs of Jane on his cellphone.
On April 2, 2015, Ullman accepted the Commonwealth’s revised offer,
which was as follows: Counts I, II, and III were each amended to distribution of
a matter portraying a sexual performance by a minor; 5 Counts IV, V, and VI
were dismissed; and Count VII was amended to charge Ullman with being a
second-degree persistent felony offender. The Commonwealth recommended a
ten-year sentence on Count I based on the persistent felony offender
enhancement of Count VII, two years on Count II, and two years on Count III.
Counts I and II would run consecutive to one another and concurrent with
Count III for a total of twelve years. 6 The Commonwealth required that Ullman
serve one year of imprisonment starting from the date of the entry of his guilty
plea with the balance probated for five years.
Under the terms of the plea agreement, Ullman also agreed to several
recommended conditions of probation. Namely, that he: submit to a sex
offender presentence evaluation pursuant to KRS 439.265(6); submit to HIV
5 A Class D felony. KRS 531.340(3)(a). We clarify that KRS 531.340(2) provides
a rebuttable presumption of intent to distribute if an individual has more than one
unit of material of a matter portraying a sexual performance by a minor.
6 We note that under the terms of the plea agreement, the twelve-year sentence
under the indictment in 13-CR-0124 was to run concurrent with an unrelated five-
year sentence for flagrant non-support, Oldham Circuit Court, No. 12-CR-0086.
4
testing pursuant to KRS 510.320; submit a DNA sample to law enforcement
pursuant to KRS 17.170; successfully complete an SOTP pursuant to KRS
197.400, et seq; register as a sex offender pursuant to KRS 17.495, et seq; be
subject to a five-year period of postincarceration supervision pursuant to KRS
532.043; and not have “any missed, diluted, refused, or positive drug screens.”
After a thorough Boykin 7 colloquy, the circuit court accepted Ullman’s
unconditional guilty plea and postponed the entry of his sentence until after
his presentence sex offender evaluation was completed. On the same day, the
court also entered an order requiring him to submit to HIV and DNA testing.
On June 5, 2015, following a sentencing hearing, the circuit court
entered a judgment and sentence on a plea of guilty on a standard AOC 8-445
Form (sentencing order) and an accompanying order of probation on an AOC-
455 Form (probation order).
In accordance with the Commonwealth’s recommendation, the
sentencing order sentenced Ullman to “a maximum term of 12 years. . .
probated with an alternative sentence as stated in the attached Order of
Probation.” The sentencing order further mandated that Ullman be subject to
a five-year period of postincarceration supervision and that he submit a sample
of his DNA to law enforcement. The court also entered a separate judgment of
registration designation order on an AOC-454 Form wherein the court checked
separate boxes finding that Ullman was guilty of a “sex crime” and a “criminal
7 Boykin v. Alabama, 395 U.S. 238 (1969).
8 Administrative Office of the Courts.
5
offense against a victim who is a minor” and found that he was therefore
mandated to register as a sex offender. As he was adjudged guilty of “two or
more felony criminal offenses against a victim who is a minor,” he was required
to be a lifetime registrant.
In the probation order the court sentenced Ullman to “probation with an
alternative sentence. . . under the supervision of the Division of Probation and
Parole [for] 5 years[.]” In accordance with his plea agreement, Ullman was to
serve one year with credit for time served beginning from April 2, 2015, the
date of his plea. The court ordered several “additional conditions” of probation.
In relevant part, it ordered Ullman to: “Avoid injurious or vicious habits”;
“Undergo available medical, substance abuse[,] or psychiatric treatment as
follows: S.O.T.P. offered by state (approved) in community based txt program.
Must complete successfully; no changing providers [without] court order”;
“Report to probation officer as directed”; “Obey all rules and regulations
imposed by Probation and Parole”; and “Other: 9 (1) 25 sup. fee (2) no new off,
prob. voil’n, missed refused positive diluted drug screens (3) all cond’ns of plea
offer are incorporated (4) all conditions listed in SORA 10 are incorporated
herein, see attached, (5) defendant allowed contact with his children[.]” The
SORA conditions referred to by the court were attached to the probation order
and stated, in relevant part:
Supervision Considerations: For Mr. Ullman to maintain an offense-
free lifestyle, in the context of his being found guilty of the charges
9 What follows was handwritten by the court.
10 Sex Offender Risk Assessment.
6
as described above, and to minimize his chances of acting out
again, it is recommended that he:
• Enter a counseling program that is specifically designed to
address sexual deviancy and sex offender issues. It would
be best for this counseling to be conducted by a professional
who is experienced in working with sex offender issues and
has been designated by the Sex Offender Risk Advisory
Board as an “Approved Provider” of sex offender treatment.
He should follow all program rules, maintain adequate
treatment participation, and complete the program
satisfactorily, as judged by the program therapist.
...
NOTE: Unless these recommendations are made conditions of
Mr. Ullman’s release plan, his adhering to these
recommendations would be entirely voluntary, and there is no
reason to expect that he would do so. 11
The parties agreed that Ullman would participate in a community based SOTP
program, meaning that he would not be enrolled in an SOTP program until
after he had served his one-year sentence.
Following Ullman’s sentencing, the record is uneventful until March 28,
2017, when the Division of Probation and Parole filed a “violation of supervision
report.” The report recounted four separate violations of Ullman’s conditions of
probation. On January 10, 2017, Ullman reported to his probation officer for a
scheduled drug screen but stated he could not produce a sample. The officer
11 An order concerning Ullman’s SORA dated June 8, 2015, and entered on
June 12, ruled in relevant part: “Based upon the victim’s recantation, and the
Commonwealth’s agreement to dismiss the charges as well as the Defendants (sic)
dispute of the accuracy of these allegations, the Court enters this Order to reflect that
the Presentencing Investigation Report should be stricken with regard to any
allegations of sexual intercourse or other facts which would lead to any inference of
guilt on Counts IV, V, and VI. Counts I, II, and III remain unchanged and those
consist of Matter Portraying Sex Performance by a Minor, First Offense, three counts,
as well as finally Count VII, plea of guilty status as [PFO 2nd].”
7
instructed him to come back the next day for a drug screen, but he failed to
report. On March 1, 2017, he failed to report for a scheduled meeting with this
probation officer. On March 22, 2017, he reported for a drug screen and
admitted to using Lortab and the drug screen showed the presence of both
Lortab and methamphetamine. Ullman filled out an admission sanction form
acknowledging his use of both drugs and was taken into custody the same day.
Finally, the report notes that Ullman “was terminated from the sex offender
treatment program as directed, for violating the drug policy, by testing positive
on a drug test.” A separate report from the treatment program indicated this
occurred on March 27, 2017. Revocation of Ullman’s parole was requested
based on the foregoing violations.
Two months later, on May 25, Ullman appeared before the circuit court
for a revocation hearing. The Commonwealth and Ullman’s counsel came to an
agreement, which was sanctioned by the court, that Ullman could be released
from custody that day and continue probation if he could later prove that he
was employed, that he had undergone a mental health assessment, and that he
had re-enrolled in SOTP. Apparently, the community based SOTP that Ullman
had been in would allow a terminated participant to re-enroll after 180 days if
it was the first time he or she had been terminated from the program. Over the
course of three subsequent court dates—one in June 2017, one in September
2017, and one in October 2017—Ullman was able to prove those three
requirements to the court’s satisfaction.
8
Later, the Division of Probation and Parole filed two additional violation
of supervision reports dated March 20, 2018, and April 18, 2018, respectively.
The violations alleged across both reports were as follows: Ullman began
substance use disorder treatment with an outpatient program on September 6,
2017, and was discharged from the program on September 28 for excessive
absences and multiple missed drug screens; on October 9, 2017, he missed a
scheduled meeting with his probation officer; on February 22, 2018, his drug
screen was positive for Oxycodone; he failed to report to his probation officer on
March 16, March 21, March 28, and April 17, 2018; on March 21, 2018, he
was discharged from his substance use disorder class for excessive absences;
on April 18, 2018, his probation officer attempted a home visit unsuccessfully
and left a note directing Ullman to report to the officer the next day and he did
not; and, finally, on April 4, 2018, Ullman was terminated from his SOTP for
the second time for violating the following terms of the program’s contract:
failing to take ownership of crime, having two unexcused absences within 90
days of one another, failing to complete a therapy task within 120 days, failing
a drug screen, failing to complete substance use disorder classes, and failing to
make any of the $5 per month payments for the SOTP classes. Ullman was
later taken into custody based on an arrest warrant for absconding from
supervision, and the Division of Probation and Parole again requested that his
probation be revoked based on the foregoing violations.
On May 24, 2018, the circuit court held a revocation hearing and entered
a revocation order on the same day. The Commonwealth requested that
9
Ullman’s probation be revoked as he had been given several chances and had
demonstrated he was not going to comply with the conditions of his probation.
The circuit court agreed and orally ruled, “I am going to revoke him on this. He
knows, he’s been in front of me many times, he knows he had to do this, and
he did not get it done so I’m going to go ahead and revoke his probation.” The
court’s revocation order simply stated that Ullman “stipulated to violations of
probation” and a handwritten annotation on the order said, “failure to complete
SOTP, + others.”
On January 13, 2020, one year and eight months after Ullman’s
probation was revoked, Ullman filed a combined motion under CR 60.02 and
RCr 11.42. His CR 60.02 motion sought to vacate the June 5, 2015,
sentencing and probation orders as well as the May 24, 2018, revocation order.
His RCr 11.42 motion also sought to vacate the revocation order.
Ullman asserted in his CR 60.02 motion, arguing under Phon v.
Commonwealth, 545 S.W.3d 284 (Ky. 2018), McClanahan v. Commonwealth,
308 S.W.3d 694 (Ky. 2010), and Ladriere v. Commonwealth, 329 S.W.3d 278
(Ky. 2010), that the sentencing and probation orders imposed sentences that
were illegal and therefore void by mandating that he: submit to a sexual
offender risk assessment, submit to HIV testing, complete an SOTP, and be
subject to a five-year period of postincarceration supervision. He further
argued that the revocation order was void because the court’s reason for
revocation was his failure to complete SOTP, which was an illegal condition of
probation. Relatedly, he asserted that he did not meet the criteria to be a
10
lifetime sexual offender registrant and should have instead been classified as a
20-year registrant. Ullman also argued under RCr 11.42 that the revocation
order was void on the grounds that he was provided ineffective assistance of
counsel at his revocation hearing because his counsel did not move to vacate
the conditions of his probation he asserted were “illegal and void” and failed to
challenge the “illegal” revocation of his probation.
In response, the Commonwealth conceded that Ullman could not be
subjected to a five-year period of postincarceration supervision because it
would have arguably extended his sentence when his crime of conviction did
not qualify for postincarceration supervision under KRS 532.043. Apart from
that concession, the Commonwealth argued that the remaining challenged
conditions of probation were valid and enforceable and, even assuming
arguendo that the conditions were improper, Ullman was barred from
challenging them. Relying on Butler v. Commonwealth, 304 S.W.3d 78 (Ky.
App. 2010) and Weigand v. Commonwealth, 397 S.W.2d 780 (Ky. 1965), it
asserted that Ullman was required to challenge any allegedly improper
condition of probation at the time it was imposed instead of agreeing to the
condition, receiving the benefit of probation, violating the condition, and then
challenging its validity only after his probation was revoked. It also asserted
that Ullman was correctly ordered to be a lifetime sex offender registrant.
In July 2020, after oral argument was held on Ullman’s motion and
additional briefing was completed, Oldham Circuit Court Judge Karen Conrad,
who had presided over the case since Ullman’s arraignment, entered an order
11
recusing herself from further participation in the case. The order explained
that Ullman’s revocation hearing attorney, against whom his RCr 11.42 motion
was leveled, now worked for Judge Conrad as a staff attorney. Special Judge
Charles Hickman was assigned to the case in her stead. In his order entered
on December 21, 2020, Judge Hickman ruled:
[P]ursuant to CR 60.02(f) “for any reason of an extraordinary
nature justifying relief,” the Court HEREBY VACATES the portion
of the Judgment and Order on Plea of Guilty entered on June 5,
2015, that required Ullman to undergo a sexual offender risk
assessment, submit to HIV testing, complete [an] SOTP (Sexual
Offender Treatment Program), and be subject to a five-year period
of postincarceration supervision, as those requirements are not
authorized by statute.[12] The Revocation Order entered on May 24,
2018 is HEREBY VACATED, Ullman shall be immediately
released from the custody of the Department of Corrections,
and Ullman is hereby returned to probation for a term of five
years subject to all his original conditions of probation, except
for those conditions which have been determined herein to
not be authorized by statute.
The Court finds that the Oldham Circuit Court correctly
determined that Ullman was a lifetime registrant for the Sexual
Offender Registry, and makes no alteration on that matter.
Judge Hickman did not address Ullman’s RCr 11.42 argument in the order.
Thereafter, the Commonwealth filed a motion for additional findings
under CR 52.02 and to alter, amend or vacate under CR 59.05. In its motion,
the Commonwealth asked the court to specifically address its argument under
12 To clarify, the Commonwealth conceded that Ullman could not be subjected
to a five-year period of post incarceration supervision pursuant to KRS 532.043. That
portion of his sentence therefore remains vacated. In addition, as the Appellant in this
case the Commonwealth does not challenge the circuit court’s ruling to vacate the
condition that Ullman submit to HIV testing. We consequently do not address
Ullman’s arguments concerning either of those conditions and would further note that
the circuit court’s decision to revoke Ullman’s probation was not based on a violation
of either of those conditions.
12
Butler and Weigand that Ullman was precluded from challenging his conditions
of probation after revocation occurred. In doing so, the Commonwealth noted
that this Court’s opinion in Commonwealth v. Jennings, 613 S.W.3d 14 (Ky.
2020), rendered four days before the circuit court’s December 2020 order was
entered, reaffirmed the holdings in Butler and Weigand, respectively. In the
alternative, the Commonwealth requested that the court make specific findings
regarding the timeliness of Ullman’s challenge to his probation conditions so
that the issue could be addressed on appeal.
On January 14, 2021, the circuit court entered an order denying the
Commonwealth’s motion to alter, amend, or vacate, and granting its motion for
additional findings by making the following finding:
[T]his Court FINDS that [Butler and Weigand] do not involve illegal
and void sentences imposed in violation of the separation of powers
doctrine and are, therefore, irrelevant to Mr. Ullman’s claims, and,
instead, controlling precedents such as [Phon, McClanahan, and
Ladriere], hold that a sentence imposed beyond the limitations of
the legislature as statutorily imposed is unlawful, void, a legal
nullity, an abuse of discretion, void (sic), correctable at any time,
and a defendant’s consent to an unlawful sentence is irrelevant. As
a result, defendant Ullman’s illegal sentences, as addressed in this
Court’s December 21, 2020 Order, were required to be vacated
without regard to the lack of any previous challenge to those
sentences.
The order neither cited nor addressed the Jennings opinion. Following the
ruling, the Commonwealth appealed.
A split Court of Appeals panel affirmed the circuit court’s December 2020
and January 2021 orders. Commonwealth v. Ullman, 2021-CA-0077-MR, 2022
WL 2182801, at *3 (Ky. App. June 17, 2022). Like the circuit court, the Court
13
of Appeals summarily dismissed the Commonwealth’s argument that Ullman
was barred from challenging the conditions of his probation because he failed
to object to them at the time they were imposed. Id. at *2. The Commonwealth
again cited Jennings, Butler, and Weigand, in support of its argument, but the
court did not address any of those precedents. Id. Instead, the entirety of its
analysis on the issue was as follows:
We do not agree with the Commonwealth's argument and instead
quote the following in support of our decision:
We hold today that a sentence imposed beyond the
limitations of the legislature as statutorily imposed is
unlawful and void. This holding is narrow: only a sentence
that is illegal and was illegal at the time it was imposed
would fall within this holding. It is because these
sentences are void and unlawful that CR 60.02 provides
the proper remedy for relief.
Phon, 545 S.W.3d at 304 (emphasis added). The circuit court did
not abuse its discretion in granting Ullman relief under CR 60.02.
Phon, 545 S.W.3d at 290.
Ullman, 2022 WL 2182801, at *2. The Court of Appeals also rejected the
Commonwealth’s assertion that it should be permitted to renegotiate the 2015
plea agreement because it relied on Ullman’s acceptance of the conditions of
his probation to its detriment. Id. The court’s reasoning was that the plea
agreement was based on both the victim’s partial recantation of her allegations
and Ullman’s willingness to accept conditions that “were not statutorily
authorized.” Id. Further, it concluded, “[t]he conviction itself is not void, only
the order of revocation based upon violation of the illegally imposed conditions.
14
[Phon, 545 S.W.3d at 309].” Id. The court declined to address Ullman’s RCr
11.42 argument, as his CR 60.02 relief was dispositive. Id. at *3.
The Commonwealth appealed and now seeks further review from this
Court. Additional facts are discussed below as necessary.
II. ANALYSIS
The Commonwealth asks this Court to reverse the Court of Appeals and
reinstate the circuit court’s May 24, 2018, revocation order. It argues that the
Court of Appeals erred by failing to apply the controlling precedents of
Jennings, Butler, and Weigand, all of which hold that a defendant may not
challenge a condition of probation for the first time after revocation and must
instead object to the condition at the time it is imposed by the sentencing
court. It asserts that Ullman’s challenge to the condition that he complete
community based SOTP was untimely in accordance with those precedents.
The Commonwealth further contends that even if Ullman’s challenge had been
timely, the circuit court acted within its broad discretion under KRS 533.030 to
impose any “reasonable condition” of probation. And, that under the facts of
this case, requiring Ullman to complete SOTP was reasonable.
In response, Ullman contends that the circuit court and Court of Appeals
were correct in relying on Phon and McClanahan which both direct that an
illegal sentence is void and therefore may be challenged at any time. In the
alternative, he maintains that even if the circuit court did act within its
discretion in ordering that Ullman complete SOTP, the revocation order must
nevertheless remain vacated because the circuit court failed to make the
15
required findings to revoke under KRS 439.3106. In the event that this Court
does not affirm the Court of Appeals, Ullman requests that we remand to the
circuit court for consideration of his argument that he received ineffective
assistance of counsel during his revocation hearing.
We hold that Ullman’s challenge to his condition of probation was
untimely and should not have been considered by the circuit court or Court of
Appeals. The circuit court’s revocation order is accordingly reinstated. We
additionally hold that ordering Ullman to complete SOTP as a condition of his
probation was not improper. We decline to address Ullman’s arguments
concerning the circuit court’s failure to abide by KRS 439.3106, as that alleged
error was not properly preserved for our review, and he has not requested and
briefed review for palpable error. Nevertheless, we agree with his request for
remand so that the circuit court may address his RCr 11.42 claims.
A. Ullman’s challenge to the probation condition that he complete SOTP
was untimely.
To begin, we reiterate that the circuit court granted Ullman relief based
on a motion filed pursuant to CR 60.02. “Whether to grant relief pursuant to
CR 60.02 is a matter left to the ‘sound discretion of the [trial] court and the
exercise of that discretion will not be disturbed on appeal except for abuse.’”
Phon, 545 S.W3d at 290 (citing Brown v. Commonwealth, 932 S.W.2d 359, 362
(Ky. 1996) (quoting Richardson v. Brunner, 327 S.W.2d 572, 574 (Ky. 1959)).
This Court is therefore without authority to disturb the circuit court’s ruling
unless it was “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).
16
Predictably, we must next address the cases of Weigand, Butler, and
Jennings, which the Commonwealth asserts in favor of its argument, and
McClanahan and Phon, argued by Ullman. We also felt it necessary to include
a discussion of Commonwealth v. Moreland, 681 S.W.3d 102 (Ky. 2023).
Moreland was rendered after briefing was concluded in this appeal but is a
member of the McClanahan and Phon family of case law.
First, in Weigand, Roland Weigand pled guilty to two counts of writing
bad checks and was sentenced to four years. 397 S.W.2d at 780. The trial
court probated his sentence on the sole condition that he be banished from the
country; Weigand was a German national and the legality of his presence in the
U.S. at that time was uncertain. Id. at 780-81. Weigand later violated that
condition, and the trial court revoked his probation. Id. at 781.
As Ullman now agues to this Court, Weigand argued on appeal that “the
substantive effect of imposing a requirement on appellant ‘to remain out of the
country’ rendered the order void ab initio,” and, consequently, “[i]ts revocation
for a violation of its condition. . .[was] without authority in law.” Id.
Significantly, there was no question whatsoever that Weigand’s condition of
banishment was not legally imposable, as the Commonwealth conceded that “it
[was] beyond the power of a court to inflict banishment as an alternative to
imprisonment.” Id. But this Commonwealth’s then-highest court nevertheless
affirmed the trial court’s order of revocation, holding that
although probation of a sentence may be a benefit conferred upon
a convicted criminal for an invalid reason, the order of probation is
separable from the conviction itself and the judgment entered
17
thereon. The fact that the probationary order is void does not
render the conviction and the judgment void.
The probation itself being a nullity there is nothing left for
appellant to do but serve his sentences. Probation was granted
upon his own motion with the advice of his counsel. He could
have appealed from the original order had he disliked the condition
imposed. Instead he chose to accept the void probation and,
subsequently, to violate it. Appellant had the assistance of
adequate counsel who was presumed to have known the
limitations of the authority of the trial court.
Id. (internal citations omitted).
In a very similar case, Butler—rendered forty-five years after Weigand—
Lakinda Butler pled guilty to possession of marijuana in Fayette County
District Court and was sentenced to one year which the court probated for two
years on the condition that Butler, a Tennessee resident, be banished from
Fayette County except to pay fines. 304 S.W.3d at 79. Less than one year
later Butler violated the condition of banishment, and her probation was
revoked. Id. Butler’s appeal to Fayette Circuit Court was unsuccessful, and
the Court of Appeals granted discretionary review to address whether the
district court’s revocation violated her constitutional right to free travel. 13 Id.
at 80. Relying on Weigand, the Butler Court agreed that the condition of
banishment was void, as “Kentucky courts have no authority to impose
banishment on a person as a condition of probation[.]” Id. Yet it still upheld
Butler’s probation revocation. Id. The Court of Appeals reasoned that
[d]espite the fact that a convicted criminal may be subjected to an
improper condition of probation, the judgment of conviction is
13 U.S. Const. amend. XIV § 1.
18
separable and, thus, survives the void probation order. Weigand,
397 S.W.2d at 781. Under such circumstances, “[t]he probation
itself being a nullity there is nothing left for [an] appellant to do
but serve [her sentence].” Id. To prevent this occurrence, a person
must challenge the improper condition at the time it is imposed.
Id.
In this case, Butler accepted the benefit of an invalid probation
order but violated the order and was sent to county jail. Although
Butler now contends that her constitutional right to freely travel
within the United States was violated by the probation condition,
she was required to make this argument at the time the condition
was imposed. Id. Rather, she accepted the void probation with the
benefit of avoiding jail and, subsequently, violated it. Therefore,
Butler's service of her twelve-month sentence is not a violation of
her constitutional rights.
Id.
Finally, in Jennings, rendered just four years ago, this Court
unanimously adopted the rationale of Weigand and Butler. Keith Jennings pled
guilty to failing to register as a sex offender and of being a PFO 1st and was
sentenced to seven and one-half years’ imprisonment. 613 S.W.3d at 15. The
trial court probated his sentence for five years on several conditions, one of
which was that he would have “no access to the internet.” Id. About one
month after his sentencing hearing, Jennings successfully moved to have the
circuit court modify two conditions of his probation, neither of which
concerned his ability to access the internet. Id. Less than four months later,
Jennings violated that condition of his probation by accessing social media
websites and the Commonwealth sought revocation of his probation. 14 Id. at
16.
14 Initially, the Commonwealth asserted as a second grounds to revoke that
Jennings had been charged with violating a provision of the Kentucky Sex Offender
19
Following a revocation hearing, the circuit court found that Jennings had
violated the condition that he not access the internet and that the condition did
not violate his right to free speech, but it nevertheless declined to revoke his
probation. Id. Instead, the court sentenced him to four months’ incarceration,
the amount of time he had been incarcerated while waiting for the revocation
hearing, as a sanction for his violation. Id. Jennings appealed the circuit
court’s ruling to the Court of Appeals which vacated and remanded, holding
that “such a restriction was not narrowly tailored, burdened more First
Amendment rights than necessary to further the government’s interests, and
did not increase public safety,” and because the restriction was
unconstitutionally vague for various reasons. Id.
The Jennings Court’s opinion seemed inclined to agree with Jennings’
contention that the total internet ban may have violated his First Amendment
Rights. Id. at 16-17. The Court agreed with the Court of Appeals’ holding that
“complete bans on internet use may, in certain extraordinary cases, pass
constitutional muster,” but cautioned that “[c]omplete bans should be
exceedingly rare.” Id. Nevertheless, this Court explicitly declined to address
whether Jennings’ internet ban was appropriate, because his challenge was
Registration Act that prohibited access to social media sites. Id. at 16. But, while
revocation was pending, the United States Supreme Court rendered Packingham v.
North Carolina, 582 U.S. 98 (2017), which had invalidated a state statute that
prohibited registered sex offenders from accessing certain commercial social media
websites on First Amendment grounds. Jennings, 613 S.W.3d at 15. The
Commonwealth withdrew the pending criminal charge in light of Packingham, making
Jennings’ violation of the condition that he not access the internet the sole ground
asserted for revoking his probation. Id. at 16.
20
untimely. Id. at 17. The Court explained that “Jennings did not appeal the
probation order, did not object to inclusion of the restriction prohibiting
internet access, and did not otherwise seek to modify that condition although
he did challenge other terms of the probationary order[,]” and that “[i]t was not
until after he had violated the internet restriction that he raised any challenge.”
Id. It held:
“[A]lthough probation of a sentence may be a benefit conferred
upon a convicted criminal for an invalid reason, the order of
probation is separable from the conviction itself and the judgment
entered thereon. The fact that the probationary order is void does
not render the conviction and the judgment void.” Weigand v.
Commonwealth, 397 S.W.2d 780, 781 (Ky. 1965) (citations
omitted). A probationer is required to challenge the offending
provision at the time it is imposed. Butler v. Commonwealth, 304
S.W.3d 78, 80 (Ky. App. 2010) (citing Weigand, 397 S.W.2d at
781).
Jennings does not challenge his conviction but merely contends
the trial court's total ban on internet access was improper.
However, by accepting the probation, Jennings evaded serving a
lengthy jail sentence, only to face sanctions when he promptly
violated its terms. Jennings’ failure to challenge the probation
restriction prohibiting all access to the internet at the time it was
imposed is fatal to his current request for relief. Id.
Jennings, 613 S.W.3d at 17. The Court held that Jennings’ constitutional
rights were not violated by the imposition of the four-month jail sentence as a
sanction for violating his probation, and that “[t]he Court of Appeals should not
have entertained the untimely challenge.” Id.
Additionally, we highlight that KRS 533.020(6) provides that
“[n]otwithstanding the fact that a sentence to probation, probation with an
alternative sentence, or conditional discharge can subsequently be modified or
21
revoked, a judgment which includes such a sentence shall constitute a final
judgment for the purposes of appeal.” This lends further credence to the
notion that the proper means for a probationer to attack an allegedly illegal
condition of probation is to object to the condition when it is imposed or within
a reasonable time thereafter and appeal if the sentencing court does not rule in
his or her favor.
In this case, Ullman entered a guilty plea and agreed to a sentence of
twelve years probated for five years. As a condition of granting Ullman the
privilege of probation, 15 the circuit court ordered him to, inter alia, complete a
community based SOTP program. We need not address here whether imposing
SOTP as a condition of probation was appropriate 16 because, as in Weigand,
Butler, and Jennings, it is immaterial. The question is not whether the
sentencing court’s challenged condition was improper, as it unquestionably
was in Weigand and Butler and as it likely was in Jennings. Instead, the
question is whether Ullman challenged that condition at the time it was
imposed. He did not. His failure to do so rendered him unable to accept the
alleged invalid condition of probation to avoid serving a twelve-year sentence,
enjoy the privilege of probation for at least two years, violate the condition,
have his probation revoked based in part on that violation, and then challenge
the probation condition as illegal for the first time one year and eight months
15 See Butler, 304 S.W.3d at 80 (citing Brown v. Commonwealth, 564 S.W.2d 21,
23 (Ky. App. 1977)).
16 That argument is instead addressed in Section II(B) of this opinion.
22
after his probation was revoked. The circuit court’s revocation order must
accordingly be reinstated.
Moreover, even if we were to agree with Ullman that the condition was
improper, the outcome here would not change. “The fact that the probationary
order is void does not render the conviction and the judgment void.” Weigand,
397 S.W.2d at 781. So even if the probation order was void by virtue of it
requiring that Ullman complete SOTP, “there is nothing left for appellant to do
but serve his sentences.” Id.
McClanahan, Phon, and Moreland do not compel us to conclude
otherwise. In McClanahan, Raymond McClanahan entered into a set of plea
agreements with the Commonwealth to resolve three separate indictments.
308 S.W.3d at 696. In exchange, the Commonwealth agreed to recommend a
ten-year sentence and objected to McClanahan receiving probation. Id.
However, pending sentencing, the Commonwealth agreed to release him on his
own recognizance if he agreed to “hammer clauses” in each of his plea
agreements that provided that if he did not return for sentencing, failed to
make himself available for a presentence investigation, or was charged with a
new offense, he would serve a much higher sentence than ten-years. Id.
McClanahan later failed to appear for sentencing and the circuit court
sentenced him to thirty-five years. Id. at 697.
The McClanahan Court reversed the convictions because the “thirty-five-
year sentence exceeded the lawful range of punishment established by the
General Assembly” and violated the Separation of Powers Doctrine. Id. at 698.
23
It therefore could not be upheld regardless of whether McClanahan agreed to it.
Id. The Court reasoned that, in accordance with KRS 532.110 17 and KRS
532.080 18, the maximum allowable sentence for McClanahan’s convictions was
twenty years and that the trial court did not have “leeway to impose a greater
sentence.” Id. at 699. Moreover, it held that “[a] sentence that lies outside the
statutory limits is an illegal sentence, and the imposition of an illegal sentence
is inherently an abuse of discretion.” Id. at 702. The Court therefore reversed
and remanded to the trial court to allow McClanahan to withdraw his guilty
pleas and resume plea negotiations with the Commonwealth. Id.
The McClanahan Court relied upon several precedents to support its
holding. Id. at 698-701. For example, in Jones v. Commonwealth, 955 S.W.2d
363 (Ky. 1999), which involved a hammer clause similar to the one at issue in
17 KRS 532.110(1)(c) states:
(1) When multiple sentences of imprisonment are imposed on a
defendant for more than one (1) crime, including a crime for which a
previous sentence of probation or conditional discharge has been
revoked, the multiple sentences shall run concurrently or consecutively
as the court shall determine at the time of sentence, except that:
(c) The aggregate of consecutive indeterminate terms shall not exceed in
maximum length the longest extended term which would be authorized
by KRS 532.080 for the highest class of crime for which any of the
sentences is imposed. In no event shall the aggregate of consecutive
indeterminate terms exceed seventy (70) years[.]
18 KRS 532.080(6)(b) provides:
(6) A person who is found to be a persistent felony offender in the first
degree shall be sentenced to imprisonment as follows:
(b) If the offense for which he presently stands convicted is a Class C or
Class D felony, a persistent felony offender in the first degree shall be
sentenced to an indeterminate term of imprisonment, the maximum of
which shall not be less than ten (10) years nor more than twenty (20)
years.
24
McClanahan, the Court upheld a plea agreement that provided for six years’
imprisonment unless Jones failed to appear for sentencing, which would result
in the Commonwealth recommending a twenty-year sentence. McClanahan,
308 S.W.3d at 699. Jones failed to appear, the twenty-year sentence was
imposed, and the Jones Court upheld the sentence. Id. The McClanahan
Court noted that “[c]ritical to [the Jones] decision was our recognition of the
fact that the sentence of twenty years was within the range established by our
legislature for Jones’s crimes. . . [t]he same cannot be said for [McClanahan’s]
sentence in this case.” Id. The McClanahan Court further noted the cases of
Ratliff v. Commonwealth, 194 S.W.3d 258 (Ky. 2006) and Neace v.
Commonwealth, 978 S.W.2d 319 (Ky. 1998), of which it said:
We have otherwise consistently recognized that sentences falling
outside the permissible sentencing range cannot stand
uncorrected. In Ratliff v. Commonwealth, 194 S.W.3d 258, 277
(Ky. 2006), a trial judge failed to note in the final judgment which
of the several multiple sentences totaling 105 years were to be
served concurrently and which were to be served consecutively.
We held, “[i]f the omission was a clerical error and the trial judge
intended to impose a sentence in excess of seventy years, the
sentence violates KRS 532.110(1)(c). The judgment must be
vacated ... insofar as it imposes a maximum aggregate sentence in
excess of seventy years.” In the opposite direction, Neace v.
Commonwealth, 978 S.W.2d 319, 322 (Ky. 1998) holds that the
trial court properly corrected a jury verdict setting a lower sentence
than the minimum provided by the statutes. We recognized that
“[a]ny other result would permit juries to re-write penalty statutes
and effectively nullify the sentencing laws ... [T]he jury's sentencing
recommendation fell outside the required statutory range, and the
trial court properly corrected the sentence to conform to the law.”
McClanahan, 308 S.W.3d at 700-01.
25
In the same vein, in Phon, this Court vacated the imposition of life
without the possibility of parole (LWOP) for a juvenile after concluding that the
sentence violated our juvenile sentencing statutes. 545 S.W.3d at 299-307. In
1996, sixteen-year-old Sophal Phon entered the home of Khamphao
Phromratsamy and Manyavanh Boonprasert and killed them “execution style.”
Id. at 289. Phon also shot the victims’ daughter in the head, but she survived.
Id. In an attempt to avoid the death penalty, Phon agreed with his attorney’s
recommendation to enter a guilty plea and present a robust mitigation case to
a jury prior to sentencing. Id. Phon further agreed that LWOP, a then-newly
available punishment in the Commonwealth, be available as a sentencing
option before the jury. Id. Following Phon’s sentencing hearing, the jury was
presented with the following sentencing options: “death, LWOP, life without the
possibility of parole for 25 years (LWOP 25), life imprisonment, or twenty years
or more.” Id. The jury recommend a sentence of LWOP, and the trial court
imposed it. Id.
After two attempts to overturn his conviction on other grounds, in June
2013 Phon filed for CR 60.02 relief, citing recent U.S. Supreme Court cases
concerning the imposition of LWOP for juvenile offenders. Id. at 290. Both the
circuit court and the Court of Appeals denied his request, and this Court
granted discretionary review to determine whether Phon’s sentence was legally
enforceable. Id. After thorough consideration, the Phon Court first concluded
that the U.S. Constitution’s Eighth Amendment did not categorically forbid
juvenile offenders from being sentenced to LWOP so long as the sentencing
26
procedures complied with the U.S. Supreme Court’s directives in Miller v.
Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana, 577 U.S. 190
(2016). Id. at 291-94. It further concluded that “the imposition of an LWOP
sentence for a juvenile under certain circumstances does not offend the
Kentucky Constitution.” Id. at 299.
Instead, the Court held that Phon’s LWOP sentence had to be vacated
because it violated a Kentucky juvenile sentencing statute: KRS 640.040(1). Id.
at 299-307. At the time Phon was sentenced, KRS 640.040 provided that “[a]
youthful offender convicted of a capital offense regardless of age may be
sentenced to a term of imprisonment appropriate for one who has committed a
Class A felony and may be sentenced to life imprisonment without benefit of
parole for twenty-five (25) years.” Id. at 300. In the interim, the legislature
added LWOP to our penal code as an available penalty but “LWOP was never
added as an enumerated sentence within [KRS 640.040].” Id. This Court had
previously clarified in Shepherd v. Commonwealth, 251 S.W.3d 309 (Ky. 2008),
that LWOP was not an available sentence for a youthful offender convicted of a
capital crime pursuant to the plain language of KRS 640.040. Phon, 545
S.W.3d at 300. Instead, the Shepherd Court “interpreted the provision of KRS
640.040(1) to be an exhaustive listing of potential penalties for juveniles
convicted of a capital offense: all the penalties for Class A felonies (twenty to
fifty years or life) and LWOP 25.” Id.
After concluding that Shepherd applied to Phon’s case retroactively, this
Court held that “applying Shepherd to Phon’s case leads to the conclusion that
27
Phon’s sentence was statutorily prohibited[;]” at the time Phon was sentenced
“LWOP 25 would have been the maximum permissible sentence and LWOP was
not allowable under the juvenile code.” Id. at 300-01. Next, relying on
McClanahan, the Phon Court reversed the Court of Appeals’ holding that Phon’s
challenge was untimely, placing particular emphasis on the separation of
powers violation that occurs when a sentencing court imposes a sentence that
is not authorized by statute. Id. at 301. It held:
What matters here is the judiciary's involvement. This Court
cannot go beyond the limits that the legislature has placed upon
the judicial branch. Part of this conscription of power is why, even
when the issue of illegal sentence is not presented to the trial
court, this Court is constrained from affirming a sentence found to
be contrary to legislative boundaries. This limitation stems from
the separation of powers doctrine. “Sections 27 and 28 of the
Kentucky Constitution explicitly require separation of powers
between the branches of government[.]” Prater v. Commonwealth,
82 S.W.3d 898, 901 (Ky. 2002).
...
Determining what should be a crime and setting punishments for
such crimes is a legislative function. “[T]he legislature makes the
laws, deciding what is a crime and the amount of punishment to
impose for violations thereof.” Jones v. Commonwealth, 319
S.W.3d 295, 299 (Ky. 2010) (citing Wilfong v. Commonwealth, 175
S.W.3d 84, 92 (Ky. App. 2004) ). . . In contrast, “[t]he judiciary
determines guilt and selects or implements a sentence within the
legislative range.” Jones, 319 S.W.3d at 299 (citing Wilfong, 175
S.W.3d at 92). This Court in McClanahan specifically held that the
trial court's imposition of a sentence in violation of legislative
directive was “a violation of the separation of powers doctrine
embodied in Sections 27 and 28 of the Kentucky Constitution, and
is an abuse of discretion.” McClanahan, 308 S.W.3d at 698.
“Under our Constitution, it is the legislative branch that by statute
establishes the ranges of punishments for criminal conduct. It is
error for a trial jury to disregard the sentencing limits established
by the legislature, and no less erroneous for a trial judge to do so
28
by the acceptance of a plea agreement that disregards those
statutes.” Id. at 701.
Phon, 545 S.W.3d at 302-03. The separation of powers violation that results
from a sentence exceeding the available statutory range is what led the Phon
Court to conclude, reluctantly, that “the defendant’s timeliness in bringing the
attack is immaterial.” Id. at 303. It reasoned that “the timeliness issue is not
one of rewarding a defendant for an appeal that is lacking in form or
punctuality[,]” and was instead “about preventing the judiciary from
overstepping its bounds and legislating through inaction or, in the trial court's
case, action.” Id. Because of this, the Phon Court held that
a sentence imposed beyond the limitations of the legislature as
statutorily imposed is unlawful and void. This holding is narrow:
only a sentence that is illegal and was illegal at the time it was
imposed would fall within this holding. It is because these
sentences are void and unlawful that CR 60.02 provides the proper
remedy for relief.
Id. at 304. Accordingly, because the General Assembly made its policy clear
through KRS 640.040 that LWOP is not an appropriate sentence for juvenile
offenders, Phon’s sentence of LWOP was void and therefore unenforceable. Id.
at 307. The Court remanded the case for the trial court to correct the unlawful
sentence and to impose a sentence of LWOP 25. 19 Id. at 309.
19 The Phon Court discussed that under Kentucky case law “even if an illegal
sentence is void, it is void only as to the excess portion of the sentence.” Id. at 306.
Phon’s sentencing jury had made an unchallenged fact finding that the
Commonwealth had proven the presence of aggravating factors sufficient to
substantiate the imposition of LWOP 25, LWOP, or death. Id. at 309. “Thus, the legal
aggravated sentences presented to the jury have been diminished to only one: LWOP
25.” Id.
29
Last, in Moreland, Daniel Moreland pled guilty in relation to two
indictments. 681 S.W.3d at 104. Under the terms of the first plea agreement,
he entered guilty pleas to two counts of first-degree sexual abuse and agreed to
a ten-year sentence of imprisonment for both counts to be served consecutively
for a total of twenty years. Id. Under the second, he pled guilty to one count of
first-degree sexual abuse and agreed to a sentence of ten years’ imprisonment.
Id. Both the Commonwealth’s offer on a plea of guilty and the trial court’s
judgment and sentence on a plea of guilty required that Moreland’s twenty-year
sentence be a “split sentence”: he would serve ten years’ imprisonment followed
by ten years of probation after the conclusion of his prison term. Id.
After serving his ten-year sentence, Moreland was released from prison
and began supervised probation in accordance with his plea agreement. Id.
Three years later, the Commonwealth moved to revoke his probation and
Moreland objected, arguing that sentencing him to probation after serving his
sentence of imprisonment was illegal. Id. The trial court ruled it was without
authority to alter the sentence and revoked his probation, and Moreland
appealed the ruling. Id. The Court of Appeals reversed based on its holding
that the sentencing scheme established by the General Assembly did not allow
for a period of probation to be served after a sentence of imprisonment. Id.
Moreover, citing Phon, the Court of Appeals noted that an illegal sentence may
be set aside at any time, and a defendant’s consent to an illegal sentence was
irrelevant. Id. The Court of Appeals went on to hold that the only remedy was
to release Moreland from custody. Id. at 105.
30
This Court thereafter granted the Commonwealth’s motion for
discretionary review. Id. The Moreland Court affirmed the Court of Appeals
insofar as it held Moreland’s sentence was illegal and void. 20 Id. at 106-107.
The Court began by noting that because “‘probation is a statutory creature,
this Court is bound by the plain meaning of the probation statutes.’” Id. at 106
(quoting Conrad v. Evridge, 315 S.W.3d 313, 317 (Ky. 2010)). As was germane
to Moreland’s case, KRS 533.020(1) mandated that “when a person is convicted
of or pleads guilty to an offense, and ‘is not sentenced to imprisonment, the
court shall place him on probation if he is in need of the supervision, guidance,
assistance, or direction that the probation service can provide[,]’” while KRS
533.020(4) stated that, “[w]hen the offense is a felony, the period of probation
“‘shall not exceed five (5) years, or the time necessary to complete restitution,
whichever is longer[.]’” Id. Based on these statutory directives, the Court held
that
the probation Moreland received violated the statute in that it was
for ten years, contrary to the five-year limitation declared in KRS
533.020(4). The trial court also violated the statute by supposing
to begin the probationary period ten years in the future,
consecutive to a term of imprisonment in state prison for another
offense that Moreland had already been sentenced to serve. . .
[T]he statutory language is unambiguous, that probation is only
available “[w]hen a person . . . who has entered a plea of guilty to
an offense is not sentenced to imprisonment[.]” KRS 533.020(1)
(emphasis added). Moreland was sentenced to imprisonment for
20 The Court reversed the Court of Appeals’ holding that the proper remedy was
to release Moreland from custody. Id. at 108-09. It instead ruled: “Given that we have
held this issue is one of illegal sentencing and is a failure to follow the statutory
parameters for when probation is available, we hold the remedy in this case is to
remand for resentencing.” Id. at 109.
31
twenty years and ordered to serve ten years of it. Therefore,
probation was not available to him.
...
[S]ince implementation of incarceration was ordered in Moreland's
case, the sentence purporting to probate ten years of that prison
sentence is unlawful. KRS 533.020(1). The statutory scheme
creates an “either/or” option, not a “both/and” option.
Moreland, 681 S.W.3d at 106-07. Significantly, this Court went on to explicitly
state that “[o]ur ruling in [Jennings] does not control here.” Id. at 106. It
expounded that in that case “we held a probationer’s challenge to a condition of
probation ought to have been brought at the time probation was imposed[,]” as
“[a]cceptance of an improper condition of probation is tantamount to waiver.”
Id. In contrast, “Moreland [was] not challenging any conditions of probation[,]”
but rather “the imposition of probation in and of itself.” Id. And, because
Moreland’s “probation was imposed in conjunction with a term of
imprisonment,” the Court believed that the McClanahan rule allowing an illegal
sentence to be challenged at any time was applicable. Id. at 106-07.
Accordingly, it remanded Moreland’s case for resentencing. Id. at 110.
Based on the foregoing, our jurisprudence clearly distinguishes between
when alleged illegal condition of probation may be challenged and when a
sentence that falls outside the available statutory range may be challenged. A
condition of probation must be challenged at the time it is imposed, or within a
reasonable time thereafter, and prior to revocation, whereas an illegal sentence
may be challenged at any time. Ullman’s sentence was not a “split sentence”
like the one at issue in Moreland, and what he challenges is a condition of
32
probation, not the imposition of probation itself. He is accordingly entitled to
no relief pursuant to Moreland. And, he could only seek refuge under the
umbrella of McClanahan and Phon if his twelve-year sentence fell outside the
permissible statutory sentence range for his convictions on three counts of
distributing a matter portraying a sexual performance by a minor, enhanced by
his status as a PFO 2nd. It does not, nor has he ever claimed that it does.
Distributing a matter portraying a sexual performance by a minor, first offense,
is a Class D felony. 21 Class D felonies have an available sentencing range of
one to five years’ imprisonment, 22 which was enhanced to a potential sentence
of five to ten years for each count based on Ullman’s PFO 2nd status. 23 The
trial court could therefore have sentenced Ullman to a maximum of thirty
years’ imprisonment, meaning that his twelve year sentence was well-within
the available statutory range and was not an illegal and void under
McClanahan or Phon.
Accordingly, because Ullman’s challenge to his condition of probation
was untimely, the circuit court’s decision to grant his motion for relief under
CR 60.02 was a clear abuse of discretion pursuant to Weigand, Butler, and
21 KRS 531.340(3)(a).
22 KRS 532.060(2)(d).
23 KRS 532.080(5) provides that “[a] person who is found to be a persistent
felony offender in the second degree shall be sentenced to an indeterminate term of
imprisonment pursuant to the sentencing provisions of KRS 532.060(2) for the next
highest degree than the offense for which convicted.” Class C felonies carry a potential
sentence of five to ten years. KRS 532.060(2)(c).
33
Jennings. We must therefore reverse the Court of Appeals and reinstate the
circuit court’s May 2018 revocation order.
B. A sentencing court may order a defendant not convicted of a “sex
crime” under KRS 17.500 to complete SOTP as a condition of
probation if the court deems the condition “reasonably necessary” in
accordance with KRS 533.030.
Notwithstanding our holding that the primary issue in this case is
resolved pursuant to the foregoing section of this opinion, this case presents us
with an opportunity to clarify an important point of law regarding the authority
of our sentencing courts to impose conditions of probation. We therefore take
this opportunity to address, as a matter of first impression, whether a trial
court’s broad discretion under KRS 533.030 includes the ability to order a
defendant that has not been convicted of a “sex crime” under KRS 17.500 to
complete an SOTP as a condition of probation. We conclude that it does.
KRS 17.500(8)(a) defines a “sex crime,” in relevant part, as “[a] felony
offense defined in KRS Chapter 510, KRS 529.100 or 529.110 involving
commercial sexual activity, 530.020, 530.064(1)(a), 531.310, 531.320, or
531.335[.]” Ullman’s convictions for distribution of matter portraying a sexual
performance by a minor, KRS 531.340, is not included in KRS 17.500’s
definition of a “sex crime.” It is instead considered a “criminal offense against a
minor.” KRS 17.500(3)(a)(11). In turn, the statutes governing SOTPs provide
that “[t]he department [of corrections] shall operate a specialized treatment
program for sexual offenders,” and define “sexual offender” as an individual
that “has been adjudicated guilty of a sex crime, as defined in KRS 17.500[.]”
Consequently, Ullman argues that the circuit court erred by requiring him to
34
complete SOTP as a condition of his probation because he was not convicted of
a “sex crime” under KRS 17.500. We disagree.
While we do not dispute that Ullman was not convicted of a “sex crime,”
we hold that the trial court nevertheless did not err by requiring him to
complete an SOTP as a condition of his probation. “In the first place, it is
entirely within the discretion of the trial court whether a defendant shall be
given his liberty conditionally. This is regarded as a privilege or a ‘species of
grace extended to a convicted criminal’ for his welfare and the welfare of
organized society.’” Ridley v. Commonwealth, 287 S.W.2d 156, 158 (Ky. 1956)
(quoting Darden v. Commonwealth, 125 S.W.2d 1031, 1033 (Ky. 1939)”. See
also Burke v. Commonwealth, 506 S.W.3d 307, 314 (Ky. 2016) (noting “the
granting of probation is wholly within the discretion of the trial court.).” This
discretion has been codified by the General Assembly via KRS 533.030 which
states, in pertinent part:
(1) The conditions of probation and conditional discharge shall
be such as the court, in its discretion, deems reasonably
necessary to ensure that the defendant will lead a law-abiding
life or to assist him or her to do so. The court shall provide as
an explicit condition of every sentence to probation or conditional
discharge that the defendant not commit another offense during
the period for which the sentence remains subject to revocation.
(2) When imposing a sentence of probation or conditional
discharge, the court may, in addition to any other reasonable
condition, require that the defendant. . .
(emphasis added). The statute then provides a list of twelve potential
conditions of probation that may be imposed by the court. The “Kentucky
35
Crime Commission/LRC Commentary” that accompanies KRS 533.030 clarifies
that
It is not intended that the list [in subsection (2)] be exhaustive or
that it limit in any way the discretion of a trial court in
tailoring the conditions of probation or conditional discharge to
the rehabilitative needs of individual offenders. . . The only
limitation on the trial judges with respect to such conditions is
contained in subsection (1). This provision requires that
conditions imposed upon a convicted offender be considered
“reasonably necessary to insure that the defendant will lead a
law-abiding life or to assist him to do so.”
(Emphasis added). Accordingly, by statute, a sentencing court has the
discretion to impose any reasonable condition of probation that it deems
reasonably necessary to ensure that the defendant will lead a law-abiding life
or that will assist him or her in doing so.
Here, the circuit court was presented with a defendant in his thirties
who, without question, had multiple sexually explicit images of a fourteen-year-
old girl on his cellphone 24 and pled guilty to distribution of a matter portraying
a sexual performance by a minor. Even if his crimes were not “sex crimes”
under KRS 17.500, they were indisputably of a sexual nature. Moreover, the
circuit court was advised by the Department of Corrections, via Ullman’s SORA
evaluation, that in order to ensure that Ullman “[maintains] an offense-free
lifestyle. . . and to minimize his chances of acting out again” he should
24 Despite Ullman’s counsel’s attempt to victim blame during the oral
arguments held in this case by proclaiming that Jane sent the photographs to Ullman,
the fact remains that Ullman is an adult, the victim is a child, and having those
images is a felony offense.
36
complete a treatment program for sexual offenders, and that he was unlikely to
do so in the absence of a court order.
Furthermore, while the statutes that govern SOTP—KRS 197.400
through KRS 197.440—direct that the Department of Corrections “shall
operate a specialized treatment program for sexual offenders,” 25 i.e.,
individuals convicted of a “sex crime” under KRS 17.500, 26 nothing in those
statutes explicitly precludes individuals not convicted of a “sex crime” from
participating in an SOTP. Likewise, KRS 532.045, which mandates that
completion of a community based SOTP be ordered as a condition of probation
for defendants convicted of a sex crime, 27 does not explicitly state that those
not convicted of a sex crime cannot be ordered to complete SOTP. Put simply,
just because SOTP is mandated for certain offenses does not mean it is
precluded for others. This is a sensible conclusion because SOTP is not a
punishment, it is a rehabilitative treatment program that endeavors to ensure
that sex offenders do not commit additional sexual offenses. If the General
Assembly believes in the efficacy of SOTP to such an extent that it has
mandated it for certain offenses, why then would we preclude participation by
a defendant who may benefit from it simply because they were not convicted of
25 KRS 197.400.
26 KRS 197.410.
27 KRS 532.045(4) (“If the court grants probation or conditional discharge, the
offender shall be required, as a condition of probation or conditional discharge, to
successfully complete a community-based sexual offender treatment program operated
or approved by the Department of Corrections or the Sex Offender Risk Assessment
Advisory Board.”).
37
a crime for which it is mandated? We therefore hold that a sentencing court
may impose completion of SOTP as a condition of probation for defendants not
convicted of a “sex crime” under KRS 17.500 if the court finds that the
condition is reasonable and is reasonably necessary to ensure that the
defendant will lead a law-abiding life or that it will assist him or her in doing
so.
There are two cases that give this Court pause in coming to this
conclusion: Ladriere, supra, and Miller v. Commonwealth, 391 S.W.3d 801 (Ky.
2013). They accordingly warrant discussion. In Ladriere, Robert Ladriere
watched a ten-year old girl use the bathroom in a restroom stall of a county
library. 329 S.W.3d at 279. Ladriere entered the girl’s stall before she could
leave and backed her against the wall but fled when the girl screamed. Id. at
279-80. He eventually entered a guilty plea to kidnapping and was sentenced
to twenty years’ imprisonment. Id. at 280. Although the sentencing court
acknowledged that kidnapping was not a sex offense per se, it further imposed
several conditions on his sentence based on his duty to register as a sex
offender, including that he complete SOTP. Id.
The Ladriere Court, reviewing for palpable error, first held that Ladriere
could not be subjected to a five-year period of conditional discharge under KRS
532.043 because kidnapping is not listed as a qualifying offense. Id. at 282. It
then held that he could not be required to complete SOTP, and the entirety of
its analysis was as follows:
38
For the same reasons, ordering Ladriere to complete a Sex Offender
Treatment Program (SOTP) was not statutorily authorized. SOTP is
a treatment program for sexual offenders. Participation in the
program may be ordered when the sentencing court, department
officials, or both determine that a sexual offender may have a
mental, emotional, or behavioral disorder and is likely to benefit
from the program. KRS 197.010(4). However, “sexual offender” as
used in KRS Chapter 197 is a person who has committed a “sex
crime” as defined by KRS 17.500. KRS 197.410(1). Given that
Ladriere did not commit an offense within the purview of the
statute's definition of “sex crime,” it stands to reason that he is not
a “sexual offender” for purposes of the SOTP provisions either.
Id. This Court vacated the portions of Ladiere’s sentencing order that imposed
the five-year period of conditional discharge and ordered him to complete
SOTP. 28 Id. at 283.
But, as Ladriere was not granted probation and was instead required to
complete SOTP as part of his sentence, the trial court’s broad discretion under
KRS 533.030 was not implicated or considered. Further, as explained supra,
this Court does not believe it is prudent to bar defendants that would benefit
from SOTP from participation simply because they were not convicted of an
offense enumerated in KRS 17.500. This, likewise, was not explicitly
considered by the Ladriere Court.
Next, in Miller, Elmer Miller pled guilty to criminal attempt to commit
first-degree unlawful transaction with a minor, victim over the age of sixteen, a
Class A misdemeanor. 391 S.W.3d at 803. He was sentenced to one year,
which the court probated for two years. Id. As a condition of probation, the
28 It also vacated the requirement that he submit to HIV testing based on the
same reasoning. Id. at 283.
39
court ordered him to “[a]ttend any counseling recommended by probation and
parole.” Id. In turn, probation and parole recommended that Miller enroll in
SOTP, and he did so. Id. However, SOTP typically took three years to
complete, and the length of Miller’s probation was only two years. Id. Shortly
before Miller’s probationary period expired, his parole officer informed the court
that Miller would be unable to complete the program before his probation
expired. Id. The court ordered briefing on the issue of whether his
probationary period could be extended beyond the two-year limit for
misdemeanor offenses provided by KRS 533.020(4), and ultimately found that
it could under KRS 532.045(4), which required the completion of SOTP as a
probation condition for sex crimes. Id.
The Miller Court vacated the circuit court’s ruling and ordered that Miller
be discharged from probation. Id. at 809. The Court first held that the circuit
court could not extend Miller’s probation based on the plain language of KRS
533.020(4). Id. at 805. It further disagreed with the circuit court’s conclusion
that the two-year probation time limit in KRS 533.020(4) was “trumped” by
KRS 532.045’s requirement that SOTP be completed because Miller was not
convicted of a “sex crime” under KRS 17.500 and was therefore not “statutorily
required” to complete SOTP. Id. More importantly, though, the Court
concluded that Miller was never ordered to complete SOTP as a condition of his
probation. Id. at 808. Rather, “the trial court's probation order. . . conditioned
Miller's probation on his ‘[a]ttend[ing] any counseling recommended by
probation and parole[]’” and said nothing about completing SOTP. Id. Rather,
40
“[t]hat condition only appeared when Probation and Parole recommended that
Miller complete sex offender treatment, which Probation and Parole believed,
incorrectly, was required by statute.” Id. Accordingly, the Court held that
Miller did not violate the imposed probation condition that he attend “any
counseling recommended by probation and parole.” Id. His probation could
therefore not be extended absent his consent, which he did not provide. Id. at
809.
Miller is distinguishable from this case because Miller was never ordered
to complete SOTP as a condition of his probation. And, as in Ladriere, the
Miller Court did not consider the sentencing Court’s discretion under KRS
533.030. Though, even if the court had imposed SOTP, because Miller’s
conviction was for a misdemeanor, and he therefore could not complete SOTP
before the expiration of his probationary period, we would agree that it could
not have been considered a “reasonable condition” by the sentencing court.
Based on the foregoing, we hereby hold that under KRS 533.030, a
sentencing court may impose SOTP as a condition of probation if the court
finds it is reasonable condition within the facts of the case before it and that it
is reasonably necessary to ensure that the defendant will lead a law-abiding life
or that it will assist him in doing so.
C. Ullman’s assertion that the circuit court’s revocation order failed to
comply with KRS 439.3106 was not properly preserved for review.
Ullman further asserts that, in the event that we reinstate the circuit
court’s revocation order based on the Commonwealth’s argument that his
41
challenge was untimely, as we do in Section II(A) of this opinion, we must
nevertheless uphold the circuit court’s later decision to vacate the revocation
order because the circuit court did not make fact findings sufficient under KRS
439.3106 and Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014) to
support the revocation decision. Specifically, Ullman argues that the circuit
court failed to make any finding that Ullman’s failure to comply with the
conditions of his probation constituted a significant risk to his victim or the
community at large and that he could not be appropriately managed in the
community. KRS 439.3106(1)(a); Andrews, 448 S.W.3d at 780 (holding “that
KRS 439.3106(1) requires trial courts to consider whether a probationer's
failure to abide by a condition of supervision constitutes a significant risk to
prior victims or the community at large, and whether the probationer cannot be
managed in the community before probation may be revoked.”).
However, Ullman failed to challenge this alleged error before the circuit
court, and it is therefore not preserved for our review. Accord Lainhart v.
Commonwealth, 534 S.W.3d 234, 237 (Ky. App. 2017). And, nowhere in
Ullman’s brief to this Court does he request review for palpable error pursuant
to RCr 10.26. 29 “Absent extreme circumstances amounting to a substantial
miscarriage of justice, an appellate court will not engage in palpable error
29 RCr 10.26 provides that “[a] palpable error which affects the substantial
rights of a party may be considered by the court on motion for a new trial or by an
appellate court on appeal, even though insufficiently raised or preserved for review,
and appropriate relief may be granted upon a determination that manifest injustice
has resulted from the error.”
42
review pursuant to RCr 10.26 unless such a request is made and briefed by the
appellant.” Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008)
(citing Thomas v. Commonwealth, 153 S.W.3d 772, 782 (Ky.2004); Bray v.
Commonwealth, 177 S.W.3d 741, 752 (Ky.2005), overruled on other grounds by
Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010)).
We do not believe the circumstances presented by this case constitute
extreme circumstances amounting to a substantial miscarriage of justice and
therefore decline to address Ullman’s argument. The Division of Probation and
Parole first sought revocation of Ullman’s probation in March 2017 for several
violations of his probation conditions, namely: evading a drug screen and
failing to report to his probation officer as directed the following day; another
failure to report to his probation officer thereafter; failing a drug screen which
showed the presence of Lortab and methamphetamine; and for being
terminated from his SOTP for failing a drug screen.
The circuit court nevertheless gave Ullman a second chance to comply
with the conditions of his probation, but by the following March the Division of
Probation and Parole was again seeking revocation, this time for even more
violations, specifically: being terminated from his outpatient substance use
disorder treatment program for excessive absences and missed drug screens;
failing to report to his probation officer as directed on six separate occasions;
failing a drug screen which showed the presence of Oxycodone; being
discharged from his substance use disorder treatment class for excessive
43
absences; and being terminated from his SOTP for a second time based on six
distinct violations of that program’s contract.
Based on the foregoing, we cannot conclude that the circumstances of
this case warrant sua sponte review for palpable error.
D. Ullman’s RCr 11.42 claims must be remanded for consideration by a
fact-finding court.
Ullman’s final argument is that his revocation hearing counsel’s
representation constituted prejudicial ineffective assistance of counsel
pursuant to RCr 11.42. He faults his revocation hearing counsel for failing to
challenge the conditions of his probation during his revocation hearing and for
failing to object to and/or appeal the circuit court’s failure to make the
required findings under KRS 439.3106 prior to revoking his probation. He
contends that if this Court reverses the Court of Appeals and reinstates the
circuit court’s revocation order, we should further order that the case be
remanded so that a fact-finding court may address his RCr 11.42 arguments in
the first instance. As noted, both the circuit court and the Court of Appeals
forewent addressing Ullman’s RCr 11.42 arguments on the basis that his CR
60.02 relief was dispositive. As we have already ruled in Section II(A) of this
Opinion that Ullman’s challenge to the conditions of his probation were
untimely, that issue need not be considered. Nevertheless, we agree that
remanding to allow the circuit court to address his argument regarding his
counsel’s failure to challenge the circuit court’s failure to make the required
findings under KRS 439.3106 prior to revocation is warranted.
44
III. CONCLUSION
Based on the foregoing, we reverse the Court of Appeals and hereby
reinstate the circuit court’s May 24, 2018, revocation order. We further
remand this case to the circuit court for consideration of Ullman’s RCr 11.42
arguments.
VanMeter, C.J.; Bisig, Conley, Keller, Lambert and Nickell, JJ., sitting.
VanMeter, C.J.; Bisig, Conley, and Nickell, JJ., concur. Keller, J.,
concurs in result only. Thompson, J., not sitting.
COUNSEL FOR APPELLANT:
Russell Coleman
Attorney General of Kentucky
Jacob Michael Abrahamson
Assistant Attorney General
Bryan Darwin Morrow
Assistant Attorney General
Courtney J. Hightower
Assistant Attorney General
COUNSEL FOR APPELLEE:
Joseph V. Aprile, II
Lynch, Cox, Gilman & Goodman, P.S.C.
45