NOT TO BE PUBLISHED

OPINION AND ORDER

CLAYTON, Judge.

Tori Van Berg appeals the Daviess Circuit Court's denial of a motion for shock probation. While Tori acknowledges that Kentucky Revised Statutes (KRS) 439.265(2) explicitly states that such decisions by a trial court are not reviewable, she maintains that her claim is different because it does not seek a review on the merits of the decision but rather seeks a review of the unconstitutional and illegal procedures of the trial court. After careful review, we hold that because Tori's challenge is based on the merits, we do not have the authority under KRS 439.265(2) to address it and dismiss the appeal.

FACTUAL AND PROCEDURAL HISTORY

On July 10, 2007, Tori Van Berg was indicted on two counts of trafficking in a controlled substance first-degree, methamphetamine, in violation of KRS 218A.1412. A trial on these charges was conducted on March 28 and 29, 2007; it ended in a mistrial. A second trial was held on July 31 and August 1, 2007. The jury found Tori guilty of one count of first-degree trafficking in a controlled substance and one count of first-degree possession of a controlled substance.

The jury recommended a sentence of six (6) years' imprisonment for the trafficking offense and a sentence of three (3) years' imprisonment for the possession charge. Additionally, the jury recommended that the sentences run consecutively for a total of nine (9) years. Judgment was entered on October 18, 2007, with the trial court following the jury's recommendations on sentencing.

Tori appealed the decision. She also filed a motion for bail pending appeal, which the trial court granted and entered on March 11, 2008. In conjunction with its order allowing bail, the trial court ordered Tori to post a cash bond of $100,000. On April 1, 2008, she was released on bail. Our court affirmed the conviction on October 1, 2010.

After the judgment was affirmed, Tori filed a timely notice for shock probation on March 16, 2012. On March 21, 2012, the trial court held an initial hearing on this motion. At the hearing, the Commonwealth orally opposed the motion to grant Tori shock probation. Thereafter, at a continuation of the hearing, held on March 26, 2012, the trial court denied shock probation. Tori now appeals from this order.

Tori contends that she is not seeking a review of the merits of the decision but rather seeks a review of the unconstitutional and illegal procedures and bases used by the trial court in deciding whether to grant shock probation. Accordingly, she maintains that because her challenge is not on the merits, she has the right under the state constitution and the due process clause of the federal constitution to receive appellate review of the constitutionality and legality of the procedures used by the trial court.

From this contention, Tori posits that the trial court erred, caused her substantial prejudice, abused its discretion, and denied her due process. She bases this argument on her belief that the trial court denied shock probation because she availed herself of a jury trial and an appeal. Since the trial court made its decision based on these reasons, she alleges that it penalized her for exercising her protected federal and state constitutional rights.

Further, Tori alleges that the trial court erred, caused her substantial prejudice, abused its discretion, and denied her due process when it noted that it routinely defers to the recommendations of the Commonwealth on its decision concerning shock probation. Finally, Tori argues that even if our court determines that neither of the orders standing alone necessitates reversing the denial of Tori's shock probation, we should grant relief under the doctrine of cumulative error.

In response, the Commonwealth asserts that because of the statutory language of KRS 439.265(2), the trial court's decision to deny shock probation is not reviewable because Tori's claims are merit based, that the trial judge was not biased, and that there was no cumulative error.

ANALYSIS

Does statutory language not allow review of this case?

Initially, we observe that under Kentucky jurisprudence, KRS 439.265 has been held to be constitutional. Commonwealth v. Williamson, 492 S.W.2d 874 (Ky. 1973). While the issue in Williamson concerned a separation of powers issue between the executive and judicial branches, it was held that the statute was constitutional and that a trial court has the authority to decide whether to extend shock probation to a defendant. Notwithstanding the constitutionality of the statute, Tori, however, is not directly challenging the constitutionality of the statute itself.

While Tori acknowledges the language in KRS 439.265(2) that decisions about shock probation are not reviewable, she contends that her challenge is not on the merits of the decision, and therefore, is allowable. Simply put, under Tori's analysis, the trial court's decision to deny her shock probation was based on unconstitutional and illegal procedures. Hence, she opines her challenge is not explicitly disallowed by the statute.

Turning to the statute itself, the pertinent section states:

KRS 439.265(2). Hence, the unambiguous language of the statute says that a trial court's grant or denial of shock probation is not reviewable.

The appellate history of this statute shows that the only time the highest court in Kentucky has permitted an appellate court to review a lower court's order regarding shock probation has been to ascertain whether the trial court acted within its jurisdiction. See Commonwealth ex rel Hancock v. Melton, 510 S.W.2d 250 (Ky. 1974). Therein the Court stated:

Id. at 252. Moreover, the Court went on to hold that the "not reviewable" language precludes a review on the merits. Id.

More recently, in Terhune v. Commonwealth, 907 S.W.2d 779 (Ky. App. 1995), the court addressed the reviewability of shock probation decisions by the lower courts. Again, it reiterated that the only issue that permits our court to review a lower court's decision concerning shock probation is jurisdictional. In fact, the issue in Terhune was jurisdictional since it concerned the necessity for trial courts to strictly comply with the time limits imposed by KRS 439.265(1).

In the case at hand, Tori carefully explains in her brief that she has complied with the time limits mandated by KRS 439.265(1). Furthermore, the Commonwealth does not dispute this assessment. Significantly, Tori never claims that the trial court did not have jurisdiction to decide her shock probation case. Rather, Tori, using Terhune to support her analysis, claims that because her dispute is based on unconstitutional and illegal procedures, it is not based on the merits of the decision, and thus, is reviewable.

From the mere recognition that Terhune permitted an appeal on jurisdiction, she jumps to the position that it supports her claim for review here. Even though the language of Melton and Terhune refer to jurisdictional issues, contrary to Tori's position, these cases never suggest that unconstitutional or illegal procedures, other than not complying with the strictures of the statute, obviate the plain meaning of the statute. Nowhere does the caselaw allow for an order of shock probation to be reviewed for these reasons. But given Tori's arguments on these issues, we now do a more thorough review of her interpretation that these claims are not merit-based.

Is this a review on the merits?

We begin by observing that Tori's characterization of the issues as ones that necessitate a non-merit based review is not persuasive. Indeed, it seems that Tori's reasoning is an attempt to circumvent the non-reviewability of trial court's decisions concerning shock probation.

Clearly, her arguments do not resonate as jurisdictional. In fact, Tori does not argue that the issues are jurisdictional. But instead, she draws attention to certain actions by the trial court, which she deems are unconstitutional and illegal. The purported illegal procedures, however, are never specifically identified by Tori. Looking at KRS 439.265, however, the trial court followed the mandate of the statute — the motion was considered within sixty days of its filing, the ruling was timely issued, and a hearing was held. Thus, Tori's claim of illegal procedures is not substantiated.

Next, Tori maintains that the trial court's actions were unconstitutional and that she was deprived of due process. She provides the following examples. The trial judge comments, both at the hearing and in his decision, that other people with similar offenses accept a plea offer from the Commonwealth, and thereafter, are given shock probation. But the trial judge noted that Tori's case was different since she had a jury trial, which ended in a mistrial, then another jury trial, and ultimately an appeal, in which she did not prevail. Based on the judge's remarks, Tori's counsel extrapolated that the trial judge did not grant shock probation because Tori chose to engage in a protracted litigation process. Counsel then argued that to punish her for reliance on her legal rights is patently unconstitutional. Additionally, Tori's counsel complained about the judge's statement that typically he relies on the Commonwealth's recommendations regarding shock probation. From this statement, defense counsel jumped to the conclusion that the trial judge abdicated his discretion when he made this decision.

Counsel's interpretation of the trial judge's comments herein does not, however, comport with our understanding of the matter. As noted by Tori herself, she has no right to shock probation. In addition, since KRS 439.265(2) provides in pertinent part that "[t]he defendant may, in the discretion of the trial court, have the right to a hearing on any motion he may file, or have filed for him, that would suspend further execution of sentence." (Emphasis added). Consequently, shock probation is a discretionary sentencing option for the trial court. Finally, Kentucky courts have consistently held that there is no constitutional right to probation. Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999).

It is our conclusion that the trial judge did not violate Tori's constitutional rights when he made the aforementioned remarks. The trial judge never stated that because Tori opted for a jury trial, she could not now receive shock probation. Second, even though the trial judge indicated that he often accepts the recommendation of the Commonwealth about shock probation, he did not state that he automatically takes their recommendation.

Here, the trial judge's statements and actions demonstrate the use of discretion in making a decision. For instance, the trial judge took a few days to review the case before making his decision about shock probation. Furthermore, he carefully considered the arguments of all parties, studied the papers submitted by defense counsel, and refrained from making any ruling until he studied the file. When the judge finally ruled from the bench, he opined that he had given this particular case a great deal of thought. He offered his opinion that Tori was seriously involved with methamphetamine and that methamphetamine abuse was a serious problem for communities. Nor do we construe that these actions by the judge showed bias toward Tori.

Therefore, as stated in the March 26, 2012 order, the judge felt compelled to deny the shock probation motion because granting it would "unduly depreciate the serious nature of the offenses of which she was found guilty." In the case at bar, the judge most definitely used his discretion appropriately in making his decision.

Besides addressing the judge's actions as appropriate here, we also decide that the issues presented by Tori are merit-based, and thus, non-reviewable. Statutory and caselaw hold such an appeal is not within the jurisdiction of our court. "If the words of the statute are plain and unambiguous, the statute must be applied to those terms without resort to any construction or interpretation." Terhune, 907 S.W.2d at 782 (1995) (quoting Kentucky Unemployment Ins. Com'n v. Kaco Unemployment Insurance Fund, Inc., 793 S.W.2d 845, 847 (Ky. App. 1990)).

Further, we note that Kentucky Courts must follow the legal conclusions of higher appellate courts when reviewing issues that have already been decided. When an appellate court rejects a legal argument on the merits, the court's decision becomes the "law of the case," and all lower courts are bound by the decision. Williamson v. Commonwealth, 767 S.W.2d 323, 325 (Ky.1989). The law of the case doctrine regarding review of shock probation decisions is that review on the merits is not permissible. Thus, we do not have the authority to address the issues proffered by Tori. Given that we have no authority to review this decision, it is not necessary to address the remaining arguments of the defense counsel.

Lastly, on May 2, 2013, the Commonwealth made a motion to cancel oral arguments and dismiss this action as moot. Tori was granted parole and released from the physical custody of the Department of Corrections on May 1, 2013. The Commonwealth contends that since Tori is no longer in custody, no issue regarding shock probation exists. We concur that there is no longer a case in controversy so that the issue is now moot. See Department of Corrections v. Engle, 302 S.W.3d 63 (Ky. 2010). Therefore, we dismiss the appeal for this reason, too.

CONCLUSION

To conclude, the appeal herein is dismissed because the Court of Appeals lacks authority to review it under KRS 439.265(2) and also because the matter is moot. The decision of the Daviess Circuit Court is affirmed.

ALL CONCUR.