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Court of Appeals of Kentucky.


NO. 2009–CA–002099–MR

Decided: June 17, 2011

BEFORE:  LAMBERT AND STUMBO, JUDGES;  SHAKE, Double SENIOR JUDGE. BRIEF FOR APPELLANT:  Robert Dunson Pro Se West Liberty, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General James C. Shackleford Assistant Attorney General Frankfort, Kentucky



Robert Dunson appeals pro se from a Fayette Circuit Court order, entered on October 15, 2009, denying his motion to correct his sentence.   Dunson claims that the Department of Corrections improperly applied KRS 197.045(4) retroactively to his sentence.   After a careful review of the record and applicable law, we affirm the Circuit Court order.

In April 2001, a Fayette County grand jury indicted Dunson on the charges of first-degree rape and first-degree sexual abuse.   The charges stemmed from the 1997 sexual assault of a child living in Dunson's home.

During plea negotiations, both the prosecutor and defense counsel acknowledged that sentencing was controlled by the statutes that existed in 1997, when the crime was committed.   The primary distinction between the 1997 sentencing statutes and the current sentencing statute is found in the parole eligibility of violent offenders.   The 1997 version of KRS 439.3401 provided that offenders could meet the parole board after serving 50% of their sentence rather than 85% of their sentence, as required by the current statute.   During the plea colloquy, Dunson, the trial court, and the attorneys discussed the parole eligibility ramifications of the 1997 statutes.

On January 4, 2002, Dunson entered a plea of guilty to a charge of first-degree rape based upon the Commonwealth's recommendation of ten years imprisonment.   The plea was conditioned upon Dunson's appeal of the trial court's refusal to suppress his confession.   Dunson filed a belated appeal of the trial court's suppression ruling.   In 2006, this Court affirmed Dunson's conviction Double .

In August 2004, Dunson moved the trial court to amend his judgment of conviction and sentence.   He argued that the statute was applied retroactively and that the ex post facto clause was violated.   On September 1, 2004, the trial court denied this motion without holding an evidentiary hearing.

In March 2006, Dunson moved the circuit court for post-conviction relief under the Kentucky Rules of Criminal Procedure (RCr) 11.42.   His motion stated:

Movant submits that, because of KRS 197.045(4), he is being denied the right to his [s]tatutory [g]ood [t]ime [credits] by the Department of corrections, and he has been prohibited from his opportunity to be reviewed by the Kentucky Parole Board until he enrolls in and complete[s] the “Sex Offender Treatment Program,” as required by said [s]tatute.

On September 29, 2009, Dunson moved the trial court to correct or enforce his plea agreement.   He claimed that the Department of Corrections improperly applied KRS 197.045(4)(1) and improperly required him to complete a sexual offender treatment program prior to parole review.   On October 15, 2009, the trial court denied this motion.   It is from this denial that Dunson appeals.

The Ex Post Facto Clause prohibits the imposition of a more severe punishment for a crime than was available at the time that the crime was committed.   Weaver v. Graham, 450 U.S. 24, 29;  101 S.Ct. 960, 964;  67 L.Ed.2d 17 (1981).

Although recognizing important concerns in this area of law, the United States Supreme Court has noted that the Ex Post Facto Clause should not be used for micromanagement of an endless array of legislative adjustments to parole and sentencing procedures.   The Court also stated that individual states must have flexibility in formulating parole procedures and addressing problems associated with confinement and release.

Stewart v. Commonwealth, 153 S.W.3d 789, 793 (Ky.2005) (Citations omitted).

Kentucky law has consistently concluded that the retroactive application of the sexual offender treatment program does not create an unconstitutional ex post facto violation.  Stewart, 153 S.W.3d at 793.   A statute violates the Ex Post Facto Clause when the statute:  (1) is retrospective;  and (2) disadvantages the offender.  KRS 197.045(4) provides in part, “A sexual offender who does not complete the sex offender treatment program for any reason shall serve his or her entire sentence without benefit of good time, parole, or other form of early release.”

In Lozier v. Commonwealth, 32 S.W.3d 511 (Ky.App.2000), this Court concluded that an offender was not disadvantaged by a retroactive application of KRS 197.045.  Id. at 514.   This Court reasoned:

KRS 197.045(4) does not deprive Lozier of the opportunity to earn good time credit and to qualify for early parole.   Rather, KRS 197.045(4) merely defers the effective date of any good time credit which Lozier may earn in prison until she has successfully completed a sex offender treatment program.   Once she completes the program, her accrued good time credit will be credited against her sentence.   Consequently, we find no indication Lozier will be disadvantaged by the application of KRS 197.045(4).

Id., at 514.

Further, this appeal is procedurally deficient.   Dunson presents the same issues in this appeal that he raised to the trial court in his August, 2004, motion and his March, 2006, motion.   Although Dunson did not appeal the trial court's denial of these motions, an appellant may not re-litigate issues that could have previously been ruled upon.   See McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky.1997).

Accordingly, we affirm the Fayette Circuit Court order.