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Friday October 21, 2016

Ex Post Facto Law
posted by Oliver H. Barber, Jr.
Tags: In the news 

This case originated in Meade County, based on a criminal complaint and indictment alleging that you, in concert with your husband, sexually abused your stepdaughter.

On January 14, 2002, you appeared in open court with your attorney, Hon. Mark T. Scott, and, by and with agreement of the Attorney for the Commonwealth, entered a plea to the amended charge of sodomy in the second degree.

On February 22, 2002, you appeared in open court and at that time attempted to withdraw your guilty plea. The Court entered an order denying you the opportunity to withdraw your guilty plea and entered judgment on a plea of guilty, sentencing you to ten (10) years of incarceration.

Hon. Robert Miller, Judge, Meade Circuit Court, in setting the terms and conditions of incarceration, ordered you, pursuant to KRS 532.043, to serve an additional three years of conditional discharge following your release, as well as any other terms and conditions which may be imposed by the Department of Corrections consistent with the terms contemplated and agreed to by the parties as conditions of the plea offer.

The Meade Circuit Court imposed a sentence that was an ex post facto imposition of KRS 532.043 and void ab initio. The Court knew or should have known such application to you was clearly and patently erroneous, as should have the prosecutor and defense counsel.

As noted in the “Judgment and Sentence on Plea of Guilty,” the complained of actions by you were committed in or about Spring, 1987; Summer, 1990; Fall, 1990; Winter, 1990; Spring, 1991; Summer, 1991. On February 21, 2002, you appeared in court with your attorney, Hon. Mark T. Scott, and judgment was entered against you, finding you guilty of sodomy in the second degree, and sentencing you to a term of ten (10) years under the supervision of the Department of Corrections. “IT IS FURTHER ORDERED, pursuant to KRS 532.043, that Defendant be and is sentenced to a three (3) year period of conditional discharge following her release from incarceration upon expiration of sentence or completion of parole….”

In fact, the imposition of the three (3) year term of conditional discharge, pursuant to KRS 532.043, was in violation of the ex post facto provisions of the Kentucky State Constitution, and was null and void at the time of its imposition.

Defense counsel, Hon. Mark T. Scott, should have known that the application of KRS 532.043 to his client was ex post facto and void ab initio. Mr. Scott failed to properly advise his client and the court, and therefore rendered ineffective assistance of counsel.

You served out your sentence on March 30, 2011, and were released from prison.

Having served the entire ten (10) years of your sentence due to your refusal to acknowledge that you sexually abused your stepdaughter. You were ineligible for early release because you were not eligible to enter a treatment program.

Prior to your release in March, 2011, the Kentucky Justice and Public Safety Cabinet contacted the Meade Circuit Court and advised them that under the terms of the sentence, you were to serve a three (3) year period of sexual offender conditional discharge under KRS 532.043.

Despite the fact that the Meade Circuit Court and the Division of Probation and Parole had a second bite at the apple to recognize the error in the ex post facto application of KRS 532.043, the Court and state agency once again failed to acknowledge that, and required your to comply with KRS 532.043.

Subsequently you, due to your failure to attend and complete a sexual offender training program and leaving the area of supervision without permission, a Notice of Proposed Revocation of Parole was issued by Sabrina Farris on July 19, 2011. Hon. Kimberly A. Morris, Administrative Law Judge, on August 8, 2011, recommended revocation of your conditional discharge.

The Kentucky Parole Board then ordered you to serve out the three (3) year term of your conditional discharge. You would thus be required to serve an additional fourteen (14) months of incarceration subject to control of the Department of Corrections. The Kentucky Justice and Public Safety Cabinet, Kentucky Department of Corrections, and the Kentucky Parole Board were aware or should have been aware that the application of KRS 532.043 to you was void ab initio. The Parole Board and ALJ were so informed during the parole revocation hearing. The Appellants failed to properly acknowledge the fact that the statute clearly was an ex post facto imposition with regard to you; and that the Parole Board had no jurisdiction to imprison you and impose a serve out of the conditional discharge.

Before the Administrative Law Judge, Hon. Kimberly A. Morris, and the Parole Board, you and your counsel, Hon. Joe Mills, PDA, Louisville, Kentucky, specifically raised the specter that you were not subject to the sex offender conditional discharge laws as they did not exist at the time of your crimes. The acts for which you were sentenced occurred prior to the applicability of these sex offender laws.

The Department of Corrections and Parole Board were clearly on notice of the defect in the parole revocation proceeding regarding the application of KRS 532.043 to you. The Administrative Law Judge did not investigate the assertion; counsel for the Parole Board did not investigate the assertion; the Parole Board, itself, did not investigate or request an investigation into the applicability of the sex offender statute under which your conditional discharge was being revoked. The Parole Board could have abated the revocation proceedings to allow you to seek relief in the Meade Circuit Court, but the Board did not. You filed a Petition for Writ of Habeas Corpus in the Shelby County Circuit Court requesting your immediate release due to the violation of the ex post facto provisions of the Kentucky State Constitution.

In a scathing Opinion and Order, Hon. Charles R. Hickman, Judge, Shelby Circuit Court, granted the Appellee’s motion for immediate release, setting aside the objections of the Warden that “notwithstanding the alternative grounds under RCr 11.42, the prisoner had a right to an expeditious release through habeas corpus when it is patently obvious she is being unlawfully detained.”

So – you did 1.4 years in prison – illegally!

Tell me how much is that “prison time” worth to you in dollars?