RENDERED: AUGUST 25, 2016
TO BE PUBLISHED
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2014-SC-000241-DG
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JONATHAN MCDANIEL APPELLANT
ac
ON REVIEW FROM COURT OF APPEALS
V. CASE NOS. 2012-CA-001172-MR; 2012-CA-001299-MR;
AND 2012-CA-001513-MR
CALLOWAY CIRCUIT COURT NO. 09-CR-00181
COMMONWEALTH OF KENTUCKY APPELLEE
2014-SC-000242-DG
DAVID DESHIELDS APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NOS. 2012-CA-001172-MR; 2012-CA-001299-MR;
AND 2012-CA-001513-MR
MCCRACKEN CIRCUIT COURT NO. 09-CR-00547
COMMONWEALTH OF KENTUCKY APPELLEE
2014-SC-000243-DG
JOHN C. MARTIN APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NOS. 2012-CA-001172-MR; 2012-CA-001299-MR ;
AND 2012-CA-001513-MR
ANDERSON CIRCUIT COURT NO. 09-CR-00042
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING ON OTHER GROUNDS AND VACATING IN PART
Prior to an amendment in 2011, Kentucky Revised Statute (KRS)
532.043 provided in part that in addition to the other penalties authorized by
law, any person convicted of certain offenses, including any felony offense
under KRS Chapter 510, the Penal Code chapter addressed to sex offenses,
"shall be subject to a period of conditional discharge" following the "expiration
of sentence." KRS 532.043(1) (2006). In May and July of 2012, Jonathan
McDaniel, David DeShields, and John Martin, all inmates at the State
Reformatory in LaGrange, Kentucky, and all serving sentences for felony sex
offenses, filed very similar pro se motions in their respective trial courts
challenging the legality of the conditional discharge requirement and seeking to
have the discharge period deleted from their sentences. All three trial courts
denied the motion, and all three defendants appealed. In each case, the trial
court, although having denied the defendant's request for Department of Public
Advocacy (DPA) assistance in the trial court with the motion itself, granted his
request for DPA assistance on appeal. The Court of Appeals consolidated the
three cases; denied DPA's request to be allowed to withdraw; and ultimately,
although for reasons having little to do with the issues raised in the trial
courts, affirmed the trial court's ruling in each case. We granted the
defendants' joint motion for discretionary review to address their concern that
the Court of Appeals inappropriately characterized their trial court motions as
having been brought pursuant to Kentucky Rule of Criminal Procedure (RCr)
11.42, and to address our own concern that the Court of Appeals, perhaps in
2
its eagerness to try to calm the waters after the 2011 amendment to KRS
532.043, inappropriately ruled on a question not properly before it. Our review
strengthening rather than allaying these concerns, we affirm the Court of
Appeals' ultimate affirmance of the trial court rulings denying relief, but
"vacate" the Court of Appeals' opinion except as to the issue of whether
Martin's and McDaniel's guilty pleas were subject to appellate review.
RELEVANT FACTS
Although the procedural history of this case, particularly the effect of
appointed counsel's involvement once DPA was belatedly enlisted in the cause,
is most germane to the issues before us, we necessarily begin with brief
accounts of the three defendants' cases. In March 2010, Jonathan McDaniel
pled guilty in the Calloway Circuit Court to one count of first-degree sex abuse,
victim under twelve (KRS 510.110), a class C felony that McDaniel committed
on or about May 19, 2009. In its May 2010 Final Judgment, after previously
accepting McDaniel's plea bargain, the trial court sentenced McDaniel to six
years' imprisonment, subject to the mandatory five-year conditional discharge
period in KRS 532.043.
David DeShields pled guilty in the McCracken Circuit Court in
September 2010 to two counts of first-degree sex abuse, victim under twelve,
for crimes committed in June and October of 2009. The trial court's November
2010 Final Judgment reflected DeShields's plea bargain and sentenced
DeShields to two six-year terms of imprisonment, the two terms to run
concurrently. Among other consequences of a sex offense, such as treatment
3
and registration requirements, the Judgment also noted the five-year
conditional discharge requirement.
In January 2011, John Martin pled guilty in the Anderson Circuit Court
to six counts of first-degree sex abuse, to two counts of second-degree sodomy
(KRS 510.080, a class C felony), and to one count each of second and third-
degree rape (KRS 510.050, Class C felony, and 510.060, Class D felony). The
crimes were committed against a single victim and spanned the years 2001 to
2007, with at least two of the crimes having been committed after July 2006,
when the General Assembly increased the conditional discharge period from
three years to five. The trial court's April 2011 Final Judgment incorporates
Martin's plea bargain for concurrent sex-abuse and sodomy sentences together
with consecutive rape sentences for a total sentence of twenty-three years'
imprisonment. As do the others, Martin's Final Judgment also notes the five-
year conditional discharge requirement.
As noted above, the defendants all were incarcerated at the LaGrange
Reformatory, and the motions they each filed seeking to have the conditional
discharge portion of their sentences removed are similar enough to suggest
that they all worked from the same template or had the assistance of the same
"legal aide." They challenged the conditional discharge requirement on a
number of grounds (not all of which are stated with the utmost clarity), but
principally (1) as a sentence "enhancement" imposed on the basis of judicial
fact-finding in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), which
generally requires the jury to find any fact that will allow an "enhanced" or
4
"aggravated" sentence;' (2) as a judicially imposed harsher sentence than the
sentence bargained for with the Commonwealth, contrary to Bailey v.
Commonwealth, 70 S.W.3d 414 (Ky. 2002) (construing KRS 532.070, which
allows trial court amelioration of jury-imposed sentences the court believes too
harsh); 2 and (3) as a "second" sentence for the given crime, in violation of the
Double Jeopardy Clause of the United States Constitution, which clause
generally forbids that crimes be punished more than once. 3
1Here, of course, the defendants waived jury fact-finding by pleading guilty,
and each of them, by pleading guilty to a felony offense within KRS Chapter 510,
admitted the fact (no judicial fact-finding required) that subjected them to the
conditional discharge "enhancement."
2 In Bailey the Court reiterated that KRS 532.070 does not authorize a trial
court to impose a sentence harsher than the one the jury imposed. As Bailey clarified,
of course, KRS 532.070 does not apply to sentences arrived at via guilty plea. To the
extent, however, that the defendants invoked Bailey to assert that trial courts also are
not authorized to impose a harsher sentence than the one bargained for, cf. RCr 8.10,
which disallows, in the guilty-plea context, a harsher than bargained for sentence
unless the trial court gives the defendant notice of the harsher sentence and an
opportunity to withdraw his plea. The gist of the defendants' argument, or at least a
principal part of the argument, appears to be that conditional discharge was precisely
a judicially added "harshener" to the plea bargain. That argument clearly does not
apply to one of the cases, that of DeShields, for at DeShields's plea colloquy the trial
court referred expressly to the conditional discharge requirement. During their
colloquies conditional discharge was not mentioned expressly, but Martin and
McDaniel both acknowledged having been advised by counsel of "all the penalties"
made possible by their crimes, and neither of them objected at sentencing when the
conditional discharge requirement was included as a part (a mandatory part) of their
bargained-for sentences. Martin, to be sure, moved, in the days immediately prior to
his sentencing, to withdraw his plea, and he complained that counsel had failed
generally to explain the plea's consequences. But he did not mention conditional
discharge (or any other specific consequence) in particular, and the trial court, on the
basis of its review of the plea colloquy, concluded that Martin's plea had been
voluntary and did not otherwise justify withdrawal. Martin did not challenge those
rulings by way of appeal. Cf. Commonwealth v. Tigue, 459 S.W.3d 372 (Ky. 2015)
(discussing pre-sentence motions to withdraw a guilty plea).
3Conditional discharge, of course, although an addition to the term-of-years
sentence either bargained for (as in these cases) or imposed by the jury, is not a
"second" punishment imposed in the course of a "second" jeopardy, as disallowed by
5
When their respective trial courts rejected these challenges and denied
their motions to amend their sentences, the defendants filed notices of appeal,
and each, as noted, was granted DPA assistance. DPA's motion in the Court of
Appeals to be relieved of that responsibility can fairly be interpreted as DPA's
assertion that the appeals, and the trial court motions underlying them, were
meritless. 4 The Court of Appeals, however, hopeful that DPA briefing would
shed light on an "issue of first impression" before the Court—"a legal challenge
to the conditional discharge provision of KRS 532.043"—denied DPA's request
to withdraw. 5 Order, No. 2012-CA-001172-MR (Oct. 24, 2012).
DPA then duly filed briefs on behalf of Martin, McDaniel, and DeShields,
but (not surprisingly, perhaps, given DPA's apparent assessment of the
defendants' trial court motions) the arguments DPA raised on appeal did not
have much to do with the issues addressed by the trial courts. Instead, after
DPA entered the case, Martin's and McDaniel's claims that their trial courts
the Double Jeopardy Clause, but is merely a portion of a single sentence imposed in
the course of the original jeopardy.
4 DPA brought its motion pursuant to KRS 31.110(2)(c), which provides that the
right to counsel under KRS Chapter 31 does not extend to DPA representation in post-
disposition proceedings unless the proceeding is one "that a reasonable person with
adequate means would be willing to bring at his or her own expense." DPA's
insistence that these appeals did not meet that standard, strongly suggests that in
DPA's view the appeals were meritless.
5 This case well illustrates the difficulties courts, trial and appellate, confront as
they try to make the most of the limited supply of DPA representation. While we
certainly agree with the Court of Appeals that DPA has a vital role to play in the
articulation of novel criminal justice issues, it must be apparent that its ability to fill
that role on appeal will be marginal, at best, where it has had no hand in shaping the
trial court record, and where, by its own estimate, that record provides no opening by
which the "novel" issue might legitimately be reached.
6
had sentenced them beyond their plea bargains morphed into claims that,
because those two defendants were unaware when they entered their pleas of
the conditional discharge portion of their sentences, their pleas were
involuntary and thus invalid.
DPA's main argument, an argument it made on behalf of all three
defendants, had even less to do with the defendants' original motions. An
understanding of this argument requires a brief discussion of KRS 532.043
(2006), the conditional discharge statute. As noted already, that statute
provided that persons convicted of certain specified offenses, including felony
sex offenses, shall serve, in addition to their ordinary term-of-years sentences,
an additional period of conditional discharge. When the statute first came into
effect in 1998, the discharge period was three years. Effective as of July 2006,
the General Assembly increased the discharge period to five years.
As originally conceived by the General Assembly, conditional discharge
was a sort of probation/parole hybrid. Like parole, the defendant's discharge
came after judicial proceedings had ceased and jurisdiction expired, and the
conditions of discharge were specified by the Department of Corrections. KRS
532.043(3) (2006). As with probation, however, revocation proceedings were
assigned to prosecutors and the courts. KRS 532.043(5) (2006).
In 2010, in Jones v. Commonwealth, 319 S.W.3d 295 (Ky. 2010), in
response to a separation of powers issue raised by DPA, this Court held that
that hybrid approach violated our Kentucky Constitution's strong separation of
powers provisions by involving the courts—the judicial branch—in the
7
Department of Corrections'—the executive branch's—affairs. While "[t]he
General Assembly can," we explained, "consistent with the separation of
powers doctrine, create a form of conditional release with terms and
supervision by the executive branch[,] . . . the statutory scheme runs afoul of
the separation of powers doctrine when revocation is the responsibility of the
judiciary." 319 S.W.3d at 299-300.
In response to Jones, in 2011 the General Assembly, as part of the
massive House Bill 463, changed the name from "conditional discharge" to
"postincarceration supervision," and amended subsection 5 of KRS 532.043 to
provide for Parole Board, rather than judicial, oversight of revocations. By
early 2012 the Department of Corrections had issued regulations governing
postincarceration supervision revocation proceedings, including regulations-
501 Kentucky Administrative Regulations (KAR) 1:070—devoted to sex offender
revocation proceedings.
In its briefs on behalf of Martin, McDaniel, and DeShields, DPA focused
on this statutory shift from the judicial revocation procedures in effect at the
time of the defendants' offenses, to the new Parole Board procedures that
would likely be in effect when the defendants completed their periods of
incarceration and became subject to postincarceration supervision. DPA
argued that the new procedures accorded persons under supervision less
protection against revocation (hence producing additional incarceration) than
did the former procedures, such that application of the new procedures to the
defendants would amount to a due process violation, the sort of "fair warning"
8
violation the United States Supreme Court addressed in Bouie v. City of
Columbia, 378 U.S. 347 (1964). In that case a state supr :eme court's surprising
reinterpretation of one of the state's criminal statutes was held to raise .under
the federal Constitution's Due Process Clause "fair warning" concerns
analogous to those addressed by the Ex Post Facto Clause with respect to
criminal-law changes brought about by new legislation. 6
Simply put, the defendants' cases mutated in DPA's opening Court of
Appeals briefs. They changed from the defendants' relatively straightforward
illegal-sentence claims (claims DPA had already indicated it had no interest in
pursuing), to, in Martin's and McDaniel's cases, challenges to their guilty pleas,
and in all three cases to a "due process" claim that looked a lot like an ex post
facto claim. And the mutating was not over.
The defendants' original motions to amend their sentences and the trial
courts' orders denying those motions did not make reference to any particular
rule or statute authorizing the motion, but in each of its briefs to the Court of
Appeals, the Commonwealth asserted, parenthetically, that each defendant's
6 Apparently DPA purports to justify raising on appeal this patently
unpreserved claim by noting that the defendants' trial court motions, in conjunction
with their reference to Apprendi, also refer to the federal Constitution's Due Process
Clauses, as though that bald reference put the trial court on notice of every case'
everywhere in which "due process" has in any way been construed. Needless to say
(we would hope), that notion does not comport with an adequate understanding of
notice pleading and its requirements or of motion practice. Ashcroft v. Iqbal, 556 U.S.
662 (2009) (discussing and applying Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), which adopted a "facial plausibility" standard for pleadings under Federal Rule
of Civil Procedure 8(a)(2), the federal counterpart of our CR 8.01(1)). And see CR 7.02,
which requires that motions for trial court orders "state with particularity the grounds
therefor."
9
motion should be understood as having been brought pursuant to RCr 11.42,
which authorizes persons under a criminal sentence to collaterally attack that
sentence by filing an appropriate motion in the sentencing court. Because the
defendants' motions had indeed sought to correct what the defendants
maintained was an invalid portion of their sentences, the Commonwealth's
seemingly offhand proposal to tidy up the record by expressly invoking RCr
11.42 may not at first glance have seemed controversial.
In fact, however, the proposal was not mere "housekeeping" of the record.
In general, RCr 11.42 gives a person under sentence one, and only one,
opportunity to "state all grounds for holding the sentence invalid." RCr
11.42(3). Generally, a second such motion is not allowed. Gross v.
Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983) (describing Kentucky's
"organized and complete" set of procedures "for attacking the final judgment of
a trial court in a criminal case"); McQueen v. Commonwealth, 949 S.W.2d 70
(Ky. 1997) (affirming the denial of a successive RCr 11.42 motion). Thus,
characterizing the defendants' motions as RCr 11.42 motions would likely
preclude the defendants from invoking RCr 11.42 "again" to attack their
judgments on the ground, say, of ineffective assistance of counsel, which is
perhaps the most common use of RCr 11.42. 7 Alert to that consequence of the
Commonwealth's proposal, DPA devoted the entirety of its reply briefs in the
7 Indeed, one of the defendants, Martin, not long after his motion "to amend
sentence" was denied, filed an RCr 11.42 motion asserting, among other things,
ineffective assistance of counsel.
10
appellate court to arguing that the defendants' motions would be more
appropriately understood as brought pursuant to Rule of Civil Procedure (CR)
60.02, which also allows, in narrow circumstances, collateral relief from a
criminal sentence. Gross, 648 S.W.2d at 856-57.
The cases before the Court of Appeals thus bore little resemblance to the
cases decided by the trial courts. Whereas the trial courts had been asked to
address Apprendi, Bailey (implicitly RCr 8.10), and double jeopardy, the Court
of Appeals had before it whether, and if so how best, to characterize the
defendants' motions; whether Martin and McDaniel pled guilty involuntarily;
and whether the after-the-crime change from "conditional discharge" to
"postincarceration supervision" and from judicial to Parole Board revocation
procedures somehow encroached upon the defendants' right to due process.
Clearly, apples and oranges.
Unfortunately for DPA, none of this recasting of the case accomplished
anything. The Court of Appeals agreed with the Commonwealth that the
defendants' motions could appropriately be deemed "11.42s"; it declined to
address the validity of Martin's and McDaniel's guilty pleas, since neither
defendant had challenged his plea in the trial court; and, although (somewhat
inconsistently) it did address the equally unpreserved "due process"/"ex post
facto" issue regarding revocations, it rejected DPA's contention that Parole
Board revocation procedures so altered the "postincarceration" revocation
landscape as to implicate the "fair warning" concerns that often accompany
retrospective changes to the criminal law.
11
We granted the joint motion for discretionary review because we agree
with the defendants that the Court of Appeals' RCr 11.42 characterization of
their trial court motions raises significant fairness concerns similar to those
the United States Supreme Court addressed in Castro v. United States, 540
U.S. 375 (2003). We are persuaded, furthermore, that, even aside from the
lack of preservation, when the defendants presented their "due process"/"ex
post facto" claims to the Court of Appeals they were not ripe and therefore were
not reviewable. We must thus "vacate," as it were, almost all of the Court of
Appeals opinion. Since those issues, however, have virtually no bearing on the
trial court orders underlying these appeals, and since no one has suggested
that those orders were erroneous, we affirm the Court of Appeals' bottom line,
which was to affirm the trial courts' orders.
ANALYSIS
I. The Court Of Appeals Erred By Characterizing the Defendants'
Unlabeled Motions as RCr 11.42 Motions.
As noted above, when the Court of Appeals characterized the defendants'
"motions to amend" as having been brought pursuant to RCr 11.42, that
characterization had consequences, or at least potential consequences, beyond
merely establishing the standard of appellate review. Since for the most part a
person under criminal sentence is limited to one RCr 11.42 motion, the effect
of the Court of Appeals' characterization would be to preclude, or at least to
limit severely, the defendants' subsequent resort to that Rule. In Castro, supra,
the United States Supreme Court encountered a similar situation.
12
There, the appellant, Castro, a federal prisoner under sentence for a drug
conviction, filed in 1994 in the federal district court a pro se motion for a new
trial, a motion Castro styled as having been brought under Rule (Fed. R. Crim.
Proc.) 33. In its response, the Government noted that the motion was more
appropriately construed to invoke the federal habeas statute, 28 U.S.C. § 2255,
and then a couple of times in the Opinion accompanying its denial of the
motion, the district court referred to it as a "§ 2255" motion. Like our RCr
11.42, 28 U.S.C. 2255 allows persons under sentence to attack the sentence
collaterally, but it strictly limits a person's "second or successive" use of its
procedure. Still pro se, Castro appealed from the denial of his 1994 motion,
but he did not challenge the district court's recharacterization of it.
Some three years later, in 1997, Castro, again pro se, filed what he called
a "§ 2255" motion, wherein he alleged, among other things, that he had
received ineffective assistance of counsel. After some back-and-forth between
the district court and the Eleventh Circuit Court of Appeals, the district court
ruled that the 1997 motion was Castro's second "§ 2255" motion—the 1994
motion being the first—and dismissed the 1997 motion for failing to meet one
of the conditions (prior appellate court approval) for a "second or successive"
motion under the habeas statute. The Eleventh Circuit affirmed the dismissal,
but in doing so it urged district courts prior to recharacterizing prisoners' pro
se pleadings to "'warn prisoners of the consequences of recharacterization and
provide them with the opportunity to amend or dismiss their filings."' Castro,
13
540 U.S. at 379 (quoting Castro v. United States, 290 F.3d 1270, 1274 (11th
Cir. 2002)).
The United States Supreme Court granted Castro's petition for certiorari,
and early in its analysis it noted the widespread recognition among the federal
circuit courts that "by recharacterizing as a first § 2255 motion a pro se
litigant's filing that did not previously bear that label, [a] court may make it
significantly more difficult for that litigant to file another such motion." Castro,
540 U.S. at 382. In light of that risk (and in accord with what already was the
practice in most of the federal circuits), the Court then, pursuant to its
supervisory powers over the federal judiciary, held that before a district court
may recharacterize a pro se litigant's motion as a first § 2255 motion, it
must notify the pro se litigant that it intends to recharacterize
the pleading, warn the litigant that this recharacterization
means that any subsequent § 2255 motion will be subject to
the restrictions on 'second or successive' motions, and provide
the litigant an opportunity to withdraw the motion or to amend
it so that it contains all the § 2255 claims he believes he has.
Castro, 540 U.S. at 383. Absent this admonition, "the motion cannot be
considered to have become a § 2255 motion for purposes of applying to later
motions the law's 'second or successive' restrictions." Id.
As we have noted, RCr 11.42, like the federal habeas statute, 8
contemplatesforthemostpart hat hoseinvokingitwil doso nlyonce,
8 Kentucky Rule of Criminal Procedure 11.42 was originally conceived as an
analogue in our system to 28 U.S.C. § 2255, and while our Rule departed in its
specifics from the federal law, its function remains similar. Fraser v. Commonwealth,
59 S.W.3d 448, 452 (Ky. 2001) (discussing the advent of our current Criminal Rules
and in particular of RCr 11.42).
14
raising in a single motion all grounds for collateral relief from the challenged
sentence that could then reasonably be presented. RCr 11.42(3). In
furtherance of that purpose, our rule implicitly imposes similarly strict limits
on subsequent motions, Gross, supra, and there is thus the risk that the
characterization of a pro se litigant's pleading as an initial RCr 11.42 motion
could "make it significantly more difficult for that litigant to file another such
motion." Castro, 540 U.S. at 382.
We agree with the defendants, accordingly, and invoke our supervisory
power to hold, that before a trial court characterizes a pro se litigant's
unlabeled motion as an "11.42" or recharacterizes a motion the pro se litigant
has labeled some other way as an "11.42," it must advise the litigant that it is
doing so, must warn the litigant about the possible subsequent-motion
consequences, and must give the litigant an opportunity to withdraw or to
amend his or her motion. If pro se litigants are not so admonished, the subject
motion cannot later be used against them as a bar to a "subsequent" motion
under RCr 11.42. Accord, People v. Shellstrom, 833 N.E.2d 863 (Ill. 2005)
(adopting a Castro like admonition rule for pro se petitions deemed to come
-
within the state's Post-Conviction Hearing Act); Dorr v. Clarke, 733 S.E.2d 235
(Va. 2012) (requiring a Castro like admonishment before recharacterization of a
-
pro se pleading as a petition pursuant to the state habeas corpus statute); and
see Barker v. Commonwealth, 379 S.W.3d 116 (Ky. 2012) (discussing this
Court's supervisory power over the judicial branch and applying that power to
require that probationers be admonished, before testifying at a revocation
15
hearing, of the extent to which their testimony could be used against them at a
subsequent criminal trial).
In these cases, of course, it was the Court of Appeals and not the trial
courts that characterized the pro se motions as "11.42s," and so the rule we
have just announced is implicated only indirectly. We understand the
appellate panel's desire to be certain about what it was dealing with, since the
character of a motion or pleading bears not only on standing prerequisites and
the showing the movant must make to be entitled to relief, but also on an
appellate court's standard of review. As the Supreme Court noted in Castro,
there are thus good reasons in many instances for a trial court to characterize
or to recharacterize a pro se motion or pleading. The court may want "to avoid
an unnecessary dismissal, . . . to avoid inappropriately stringent application of
formal labeling requirements, . . . or to create a better correspondence between
the substance of a pro se motion's claim and its underlying legal basis."
Castro, 540 U.S. at 381-82. RCr 11.42 itself, moreover, contemplates trial
court characterization or recharacterization by indicating that application of
the Rule hinges on the motion's substance, not the manner in which it is
styled. RCr 11.42(4). The rule we announce today is in no way intended to
discourage trial courts from characterizing pro se motions as "11.42s" when
appropriate, it is only meant to ensure that the pro se litigant be made aware of
the possible consequences and be given an opportunity in light thereof to
reconsider.
16
On the other hand, neither is our ruling here intended to require trial
courts to characterize pro se motions. Where, for example, as seems likely to
have occurred in these cases, the trial court determines that regardless of how
the motion is characterized it could not give rise to any sort of relief—the legal
theory being patently off the mark—the court is not obliged to engage in
(re)characterization. In that instance, however, unless the litigant himself has
expressly invoked RCr 11.42, the motion will not count as an initial "11.42" so
as to limit the litigant's subsequent resort to that rule.
Notwithstanding its good intentions, therefore, the Court of Appeals
panel erred by characterizing as "11.42s" the motions the trial courts left
ambiguous. At the appellate stage the defendants could not withdraw or recast
their motions, and, for the reasons discussed above, without that opportunity
we deem it unfair to saddle those defendants with the difficulty of showing the
justification for a successive RCr 11.42 motion should they file one.
Aside from the possible "successive motion" consequence, however,
which we hereby preclude, 9 the defendants have not suggested how they were
prejudiced by the Court of Appeals' characterization of their motions. In our
view, likewise, the appellate panel's error in characterizing the motion as
"11.42s" was otherwise harmless.
9 Because the defendants will not suffer any prejudice from the fact that their
motions were not characterized in the trial court, we reject their suggestion that the
remedy for the appellate panel's error should be a remand to the trial courts for
characterization there.
17
Theoretically, we suppose, by construing the defendants' trial court
motions as "11.42s," the Court of Appeals inappropriately limited the scope of
its review and could be thought to have neglected the possibility that the
motions might have fared better under the standards of some other rule, a
possibility the trial courts implicitly considered and rejected. As noted above,
however, DPA, on behalf of the defendants, made no attempt whatsoever before
the Court of Appeals to argue that the trial courts erred in their assessments of
the defendants' original motions. It argued instead that the defendants were
entitled to relief on grounds never before raised or addressed. Similarly, before
this Court the defendants have made no attempt to show that, had it not
limited itself to RCr 11.42, the Court of Appeals might have assessed some part
of their appeals differently. Aside from the "successive RCr 11.42 motion"
concern addressed above, therefore, we are convinced that to the extent the
Court of Appeals erred by characterizing the defendants' motions as "11.42s,"
the error was harmless and does not entitle the defendants to any additional
relief.
II. The Court Of Appeals Should Not Have Addressed the Merits of the
Defendants' Unripe "Due Process"' " Ex Post Facto" Claim.
The defendants also maintain that the legislative and regulatory changes
enacted during 2011 and 2012, whereby responsibility for revocations of
postincarceration supervision was transferred from the courts to the Parole
Board,m constitute, as applied to anyone whose offense predates the 2011
10 Cf. KRS 532.043(5) (2006): "If a person violates a provision specified in
subsection (3) of this section, the violation shall be reported in writing to the
18
amendment of KRS 532.043(5), a violation of both the Kentucky and the federal
constitutional guarantees against ex post facto laws." 8 ' 12 As the defendants
correctly note, those provisions forbid, among other things, "[e]very law that
changes the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed. Peugh v. United States, U.S.
133 S. Ct. 2072, 2078 (2013) (quoting Calder v. Bull, 3 Dall. 386, 390, 1 L. Ed.
648 (1798)).
With respect to this "greater punishment" sort of ex post facto claim, the
"touchstone" of the inquiry, the Supreme Court has explained, "is whether a
given change in law presents a 'sufficient risk of increasing the measure of
punishment attached to the covered crimes."' Peugh, 133 S. Ct. at 2082
Commonwealth's attorney in the county of conviction. The Commonwealth's attorney
may petition the court to revoke the defendant's conditional discharge and
reincarcerate the defendant as set forth in KRS 532.060." and KRS 532.043(5) (2011):
"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." (Emphasis supplied to indicate amendment.).
11Section 19(1) of the Kentucky Constitution provides that "[n]o ex post facto
law, nor any law impairing the obligation of contracts, shall be enacted." Article 1, §
10 of the Constitution of the United States provides that "[n]o State shall . . . pass any
Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts."
12 As noted above, before the Court of Appeals the defendants argued that the
new revocation procedures violated their right under the Due Process Clause of the
federal Constitution to "fair notice" of the consequences of their crimes, an argument,
as discussed by the Commonwealth in its Court of Appeals response, more at home, in
this case at least, under the Ex Post Facto Clause. Before us, the defendants, as is
their wont, have shifted ground somewhat and have made the ex post facto claim
express by citing ex-post-facto cases and by insisting that "the lack of due process
afforded to defendants facing post-incarceration supervision revocation is so great, it
amounts to an ex post facto violation." It is the ex post facto claim, therefore, that we
discuss. We note, however, that any vestigial claim remaining under the Due Process
Clause would share the ex post facto claim's lack of ripeness.
19
(quoting Gamer v. Jones, 529 U.S. 244, 250 (2000), which in turn quotes
California Dept. of Corrections v. Morales, 514 U.S. 499, 509 (1995)). "Not every
retroactive procedural change creating a risk of affecting an inmate's terms or
conditions of confinement is prohibited." Gamer, 529 U.S. at 250 (citation
omitted). Whether a change in law creates a sufficient risk of increased
punishment, rather, "is 'a matter of degree[,]"' the Court has noted, and the test
"cannot be reduced to a 'single formula."' Peugh, 133 S. Ct. at 2082.
In Gamer, the Court acknowledged that "[r]etroactive changes in laws
governing parole of prisoners, in some instances, may be violative of this
precept [the precept against retroactively increasing punishment]." 529 U.S. at
250. But in the parole context, too, the controlling inquiry is "whether
retroactive application of the change in . . . law created 'a sufficient risk of
increasing the measure of punishment attached to the covered crimes."' Id.
(quoting Morales, 514 U.S. at 509).
The defendants contend that the change in law whereby the Parole
Board, rather than the courts, oversees revocations from postincarceration
supervision creates a sufficiently serious risk of increased punishment—
increased incarceration as a result of more readily imposed revocation—to
render the 2011 amendment to KRS 532.043(5) an ex post facto law with
respect to persons whose crimes predate the amendment. They base this
contention on a comparison, in some detail, of the revocation procedures
recently promulgated by the Parole Board with those formerly provided by the
courts. This comparison shows, they maintain, that the Parole Board
20
procedures provide less protection against revocation than did the judicial
ones.
The Court of Appeals rejected this argument outright (or at least the beta
version of it with which it was confronted). In the panel's view, "the new
procedures actually afford offenders more due process than did the previous
proceedings." Martin v. Commonwealth, No. 2012-CA-001172-MR, p. 6 (April 4,
2014).
We decline to enter this debate, because we are convinced that it was
premature. The Supreme Court has made clear that the federal Ex Post Facto
Clause 13 does not provide a platform for the launching of speculative or
abstract complaints about changes to the criminal law, but requires that the
complainant be affected by the change in some real and concrete way. Dobbert
v. Florida, 432 U.S. 282, 300-01 (1977) (refusing to consider a claim that parole
ineligibility provisions added to a statute authorizing a life sentence amounted
in that case to an ex post facto violation, because the claimant did not receive a
life sentence); Morales, 514 U.S. at 509 (reversing grant of habeas corpus,
because statutory change allowing deferrals of parole reconsideration "create[d]
only the most speculative and attenuated possibility of producing the
prohibited effect[,] [i.e, increased punishment]. . and such conjectural effects
are insufficient" to establish a violation of the Ex Post Facto Clause); Weaver v.
Graham, 450 U.S. 24, 29 (1981) (noting that "two critical elements must be
13 There is no claim here that Section 19 of the Kentucky Constitution calls for
a different interpretation.
21
present for a criminal or penal law to be ex post facto: it must be retrospective,
that is, it must apply to events occurring before its enactment, and it must
disadvantage the offender affected by it.") (footnotes and citations omitted,
emphasis added); cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(explaining that the "irreducible constitutional minimum of standing" includes,
among other elements, the requirement that "the plaintiff must have suffered
an `injury in fact' . . . which is (a) concrete and particularized, . . . and (b)
actual or imminent, not 'conjectural' or 'hypothetical.) (citations and internal
quotation marks omitted).
At the time they brought their "due process" /"ex post facto" contentions
to the Court of Appeals, all of the defendants were still serving their sentences
and so had not even graduated to postincarceration supervision, much less
been confronted by a Parole Board revocation proceeding. None of them, in
other words, had yet been affected, and certainly not disadvantaged or injured,
in any concrete way by the amendment to KRS 532.043(5). There was every
possibility that the defendants would emerge from their terms of
postincarceration supervision without encountering the new revocation
process. Their concerns at the time they raised them were thus purely
conjectural. The Court of Appeals should not have addressed them.
Their claims, moreover, based solely on a facial analysis of the numerous
provisions of the new Parole Board regulations, also raise the sort of ripeness
concerns we discussed recently in W.B. v. Commonwealth, 388 S.W.3d 108 (Ky.
2012), another case in which the plaintiff challenged the constitutionality of a
22
complex administrative investigative procedure—the Department of Community
Based Services' process for investigating (and substantiating or not) allegations
of child abuse. Although in W.B. the agency had initiated the administrative
process, and thus confronted the plaintiff with a real enough risk of injury, we
nevertheless denied the plaintiff's request for a sort of preemptive
constitutional review ahead of the administrative action.
We did so, we explained, lest the lack of a concrete record involve us in
factual speculation and require us to address the statute more generally than
would be necessary were the case allowed to play out. "'Passing upon the
possible significance of the manifold provisions of a broad statute[,]"' we noted,
"'in advance of efforts to apply the separate provisions is analogous to
rendering an advisory opinion upon a statute or a declaratory judgment upon a
hypothetical case."' 388 S.W.3d at 113 (quoting Communist Party of the United
States v. Subversive Activities Control Bd., 367 U.S. 1, 71 (1961)). Without "an
actual administrative proceeding to review," we worried, our consideration of
the case "would in large part be confined to engaging in an academic and
abstract view of the Cabinet's regulatory scheme. The basic rationale of the
ripeness requirement is to prevent the courts, through the avoidance of
premature adjudication, from entangling themselves in abstract
disagreements[.]"" 388 S.W.3d at 314 (quoting Abbott Labs. v. Gardner, 387
U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430
U.S. 99 (1977)). But abstract disagreement about the merits of judicial
23
vis Parole Board revocation procedures and academic commentary on the
Parole Board's regulatory scheme are the essence of the defendants' claims.
Again, we decline the invitation to join that debate. We impose no undue
hardship by insisting that the defendants' claims must wait until they have
become concrete and immediate enough to implicate real ex post facto
concerns.
CONCLUSION
In sum, although we affirm the bottom line at which the Court of Appeals
arrived in these cases—i.e., affirmance of the trial court orders denying the
defendants' motions to amend their sentences, we "vacate," in effect, two
aspects of the Court of Appeals' Opinion.
We do not approve, first, the Court of Appeals' characterization of the
defendants' unlabeled trial court motions as RCr 11.42 motions. Trial courts
may characterize or recharacterize a pro se litigant's pleading as an initial
"11.42," to spare the litigant, for example, from the summary consequences of
an inappropriate label, or simply to clarify for all concerned the procedural
context and lay of the land. Before the trial court does so, however, it must
advise the litigant of its intention, warn the litigant that the characterization
will likely make it harder for the litigant to bring a subsequent motion under
that Rule, and allow the litigant an opportunity to withdraw the pleading or to
supplement it. Because generally an appellate court will not be in a position to
offer the litigant this opportunity to reconsider, it will generally be
inappropriate, and was inappropriate in this case, for the appellate court to
24
(re)characterize as an RCr 11.42 motion a pro se pleading. The defendants'
"motions to amend" in these cases should not, therefore, be used against them
as any sort of bar to their subsequent resort to RCr 11.42.
Also inappropriate, we are convinced, was the Court of Appeals' decision
to address the merits of the defendants' unpreserved and unripe "due
process"/"ex post facto" challenge to the amended version of KRS 532.043(5).
The defendants will have ample opportunity to raise that challenge if the Parole
Board ever invokes its new revocation procedures against them.
With these caveats, we hereby affirm the decision of the Court of Appeals to the
extent it affirms the trial courts' orders denying defendants' motions.
All sitting. All concur.
COUNSEL FOR APPELLANTS
JONATHAN MCDANIEL AND
DAVID DESHIELDS:
Meredith Krause
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLANT
JOHN C. MARTIN:
Margaret Anne Ivie
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEES:
Andy Beshear, Attorney General of Kentucky
Thomas Allen Van De Rostyne
Christian Kenneth Ray Miller
Assistant Attorney General
Office of the Attorney General
25
David Deshields v. Commonwealth of Kentucky
Combined Opinion