Request By:
Vic Hellard, Jr.
Director of the Legislative
Research Commission
StateCapitol
Frankfort, KY 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Ian G. Sonego, Assistant Attorney General
RE: House Bill 7, 1991 Extraordinary Session Proposed Deletion of Section 2
You have requested our opinion on a proposed amendment to House Bill 7, 1991 Extraordinary Session, now pending in the Senate Judiciary Committee. The proposed amendment would delete Section 2 of the Bill. Section 2 requires that the amendment contained in Section 1 revising KRS 439.3401 ("The Violent Offenders Act") apply only to criminal offenses committed after the effective date of the bill. The apparent intent of the amendment would be to permit the revision of KRS 439.3401 to apply to offenders who have already committed a violent felony as defined in Subsection (1) of KRS 439.3401.
House Bill 7 was drafted for the purpose of overcoming the Kentucky Supreme Court's opinion in
Offutt v. Commonwealth, Ky., 799 S.W.2d 815 (Nov. 29, 1990), in which the court ruled that because murder is always a capital offense a defendant convicted of murder is only required to serve 12 years before being eligible for parole under KRS 439.3401 and is not required to serve 50% of the sentence of years imposed, even though individuals convicted of Class A felonies and Class B violent felonies are required to serve 50% of the sentence when a definite term of years is imposed rather than life sentence. Previously, the statute's twelve-year minimum sentence was assumed to apply to murder only if a life sentence was imposed, and the statute's 50% minimum sentence was assumed to apply to murder when a sentence for a definite term of years was imposed. See
Huff v. Commonwealth, Ky., 763 S.W.2d 106 (1988). The net effecct of the Offutt ruling was that in many cases individuals convicted of murder will be required to serve a shorter prison term before being eligible for parole than individuals convicted of Class A and B felonies.
The deletion of Section 2 of House Bill 7 presents two issues. I shall discuss those issues in reverse order of importance.
KRS 446.080 sets forth general rules of statutory construction. KRS 446.080(3) states, "No statute shall be construed to be retroactive, unless expressly so declared." In
Dennison v. Commonwealth, Ky. App., 767 S.W.2d 327 (1988), the Court of Appeals held that this statutory provision prohibited KRS 640.010 from operating retroactively because the bill enacting the statute had not expressly declared it to be retroactive. Likewise, in
Hudson v. Commonwealth, Ky., 597 S.W.2d 610 (1980), the court held that the sentencing procedures established by KRS 532.025 (which were enacted to permit the death penalty for capital offenses to be reinstated in compliance with the ruling of the United States Supreme Court) would not be applied retroactively since the bill enacting the statute failed to expressly provide for retroactivity. However, the Kentucky Supreme Court has made it clear that KRS 446.080(3) does not apply to a statute which merely revises trial procedures.
Commonwealth v. Reneer, Ky., 734 S.W.2d 794 (1987). In our opinion, the statutory amendments to KRS 439.3401 contained in House Bill 7 reflect a substantive change in the law, and would therefore require an express statement of retroactivity under KRS 446.080(3).
The more important question presented by the proposed deletion of Section 2 of House Bill 7 is whether the application of the revision of KRS 439.3401 to persons who have already been convicted or who have already committed criminal offenses would violate the constitutional prohibition against ex post facto laws. United States Constitution, Article I, Section 10; Kentucky Constitution, Section 10. In
Murphy v. Commonwealth, Ky., 652 S.W.2d 69 (1983), the Kentucky Supreme Court construed the definition of ex post facto law in the Kentucky Constitution as the same as the definition of ex post facto law under the United States Constitution. Hence, this discussion of what constitutes a ex post facto law will be limited to opinions construing the United States Constitution's provision.
The United States Supreme Court has recently clarified the meaning of ex post facto law.
Collins v. Youngblood, 497 U.S. , 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990). Essentially under that case, an ex post facto law is a law that:
. . . does not punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission ; nor deprive one charged with a crime of any defense available according to law at the time of the act was committed. [Emphasis added.]
The question then becomes whether or not the application of the revision of KRS 439.3401 to offenses which have already been committed would make the punishment for those offenses (i.e., murder) more burdensome because of what the punishment was before this statute was enacted.
The Kentucky Supreme Court Opinion in Offutt v. Commonwealth, supra, clearly establishes that the offense of murder is not subject to the 50% minimum sentence established by KRS 439.3401(3). Therefore, the application of that statute to individuals who have already committed the offense of murder would operate to increase the prisoners' minimum parole eligibility and increase their minimum period of incarceration, if a sentence other than life imprisonment and exceeding 24 years imprisonment has been imposed.
In our opinion, this issue requires analysis of Supreme Court's opinion in
Miller v. Florida, 482 U.S. 423, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987). The court's opinion in that case was unanimous. We believe that the opinion in this case remains valid under
Collins v. Youngblood, supra. As the Supreme Court noted in Miller v. Florida , citing
Lindsey v. Washington, 301 U.S. 297, 57 S. Ct. 797, 81 L. Ed. 1182 (1937), a statute which operates to automatically increase the minimum sentence for offenses which have already been committed constitutes an ex post facto law, even though the statute did not increase the maximum sentence that could be imposed. The statutory change established in Miller v. Florida had the effect of increasing the number of points assigned for sexual offenses under the Florida sentencing guidelines. The higher number of points increased the presumptive sentece to be imposed for such offenses from a range of three and one-half to four and one-half years in prison under the former law to a range of five and one-half to seven years in prison under the new law. Florida sentencing guidelines permitted the sentencing judge to decrease or increase the presumptive sentence, but only if the sentencing judge expressly set forth clear and convincing reasons in writing reflecting facts proved beyond a reasonable doubt. A sentence deviating from the statutory presumptive sentence was subject to appellate review. The court concluded that the application of the revised sentencing guidelines in Miller constituted an ex post facto law. The court quoted (482 U.S. at 432) from
Lindsey v. Washington, supra, 301 U.S. at 401-402, as follows:
It is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentece which would give them freedom from custody and control prior to the expiration of the 15 year [mandatory minimum] term [of imprisonment].
Stated differently, the rule recognized in
Miller v. Florida, supra, and
Lindsey v. Washington , supra , was that a statute which has the effect of automatically increasing the minimum sentence of incarceration constitutes an ex post facto law.
In
Blondell v. Commonwealth, Ky., 556 S.W.2d 682 (1977), the Kentucky Supreme Court held that the application of KRS 533.060(1), which prohibits probation for Class A, B, and C felony offenses involving the use of a firearm, to Blondell so as to deny Blondell shock probation for an offense committed before the effective date constituted an ex post facto law. The court stated in part:
It may be 'legislative grace' for the General Assembly to provide for shock probation but when it expressly removes all hope of shock probation upon conviction and sentence for certain offenses this is in the nature of an additional penalty.
Likewise in
Wethington v. Commonwealth, Ky. App., 549 S.W.2d 530 (1977), the Court of Appeals concluded that the application of KRS 533.060(2), to Wethington so as to impose mandatory consecutive sentences for two offenses committed before the effective date constituted an ex post facto law in violation of
Lindsey v. Washington , supra .
Therefore, in our opinion the application of Section 1 of House Bill 7 to offenses committed before the effective date would constitute an ex post facto law in violation of the United States Constitution and the Kentucky Constitution since the effect of the Bill would be to increase the minimum sentence for the offense of murder, when a sentence other than life imprisonment or death was imposed, from 12 years under the current law to 50% of the sentence of years imposed. We note that under KRS 532.030(1), the minimum sentence for murder is 20 years; hence the application of House Bill 7 to an offense of murder already committed in which a sentence is less than 24 years was imposed will in those cases result in a shorter minimum period of incarceration. Nevertheless, we interpret Miller v. Florida as requiring that the analysis focus on the effect of the statute on the particular offender's case and disregard the fact that certain other offenders may benefit from the new statute.
In reference to the particular question presented, the deletion of Section 2 of House Bill 7 will not effect the application of the proposed revision of KRS 439.3401 because of the constitutional prohibition against ex post facto lawa and because of the requirement of KRS 446.080(3) that retrospective bills contain an express statement of retroactivity.