NOT TO BE PUBLISHED
OPINION
THOMPSON, Judge.
Russell Gayle Milburn appeals from the following opinion and orders of the Jefferson Circuit Court: (1) opinion and order denying his motion for modification of sentence, entered on February 15, 2013 (2013-CA-000417-MR); (2) order denying his motion to correct his presentence investigation report (PSI), entered on April 30, 2013 (2013-CA-000926-MR); and (3) opinion and order denying his motion to withdraw his guilty plea and for DNA testing, entered on June 27, 2014 (2014-CA-1156-MR).
In May 2008, a Jefferson County grand jury indicted Milburn for rape in the third degree and illegal possession of drug paraphernalia. Milburn entered into a plea agreement which provided for a total sentence of five years and a recommendation of probation by the Commonwealth. Milburn was required to pay restitution for his victim's counseling and treatment expenses, to complete sex offender treatment, and to register as a sex offender. The agreement specified that Milburn would be subject to a period of five-years' conditional discharge after completing his five-year probationary period. The agreement also provided that if he failed to appear for sentencing, failed to cooperate with the preparation of the PSI, or incurred any new charges, he would have to serve the entire five-year sentence with no motions for probation or shock probation.
On October 16, 2009, the trial court entered final judgment in accordance with the terms of the agreement, except for an adjustment in the amount of restitution, and placed Milburn on probation for five years.
Milburn's probation was revoked about one year later for failing to pay restitution and court costs, and receiving a new felony charge of failure to comply with the sex offender registry. Milburn was sentenced to serve five years.
On June 4, 2012, Milburn filed a pro se motion to amend sentence, asking the court to remove the conditional release provision of his sentence, claiming that it was unconstitutional. The trial court found him to be indigent and appointed the Department of Public Advocacy to assist him. The Department later withdrew, in reliance on Kentucky Revised Statutes (KRS) 31.110(2)(c), indicating it was not a proceeding "that a reasonable person with adequate means would be willing to bring at his or her own expense[.]"
On November 29, 2012, Milburn filed a successive pro se motion to amend sentence pursuant to Kentucky Rules of Civil Procedure (CR) 60.02(e) and (f). The Jefferson Circuit Court entered an opinion and order denying the motion and Milburn appealed (2013-CA-000417-MR).
In April 2013, Milburn filed a motion to correct his PSI, which was denied. He appealed (2013-CA-000926-MR).
In January 2014, Milburn filed a motion to withdraw his guilty plea pursuant to Kentucky Rules of Criminal Procedure (RCr) 8.10. The Department of Public Advocacy was again appointed to represent him, and later withdrew in reliance on KRS 31.110(2)(c). Milburn filed an additional motion for genetic testing (DNA) pursuant to KRS 422.285. On June 27, 2014, the Jefferson Circuit Court entered an opinion and order denying the motion to withdraw the guilty plea and the motion for DNA testing. Milburn filed an appeal (2014-CA-001156-MR).
This opinion will address the three appeals in the order they were filed.
2013-CA-000417-MR
At the time Milburn was sentenced in 2009, KRS 532.043 required the imposition of a period of conditional discharge following the service of a sentence for certain sex offenses. Section (5) provided that if a person violated a provision of discharge, the violation would be "reported in writing to the Commonwealth's attorney in the county of conviction." The Commonwealth's attorney could then petition the court "to revoke the defendant's conditional discharge and reincarcerate the defendant[.]"
Shortly thereafter, the Kentucky Supreme Court held KRS 532.043(5) violated the separation of powers doctrine by improperly conferring upon the judiciary an executive power to revoke post-incarceration conditional release. Jones v. Commonwealth, 319 S.W.3d 295 (Ky. 2010). The Court explained its holding as follows:
The conditions and supervision of the felony conditional discharge are set by the executive branch. Violations, however, are reported to the judicial branch (the court in the county of conviction) by the Commonwealth Attorney, for revocation (as opposed to an appeal of a decision by the Parole Board). Thus, the statute imposes upon the judiciary the duty to enforce conditions set by the executive branch.
Id. at 298-99 (internal footnotes omitted). The Court concluded that "[o]nce a prisoner is turned over to the Department of Corrections for execution of the sentence, the power to determine the period of incarceration passes to the executive branch." Id. at 300.
In response to the Supreme Court's decision, the Kentucky Legislature amended KRS 532.043 to replace "conditional discharge" with "postincarceration supervision." Under the amended statute, "[p]ersons under postincarceration supervision . . . shall be subject to the supervision of the Division of Probation and Parole and under the authority of the Parole Board." KRS 532.043(4). If a person violates the terms of the postincarceration supervision, "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." KRS 532.043(5). The revised terms of the statute were made applicable to persons "convicted, pleading guilty, or entering an Alford plea after July 15, 1998." KRS 532.043(6). The amendments became effective on March 3, 2011.
Milburn argues that the amended section (5) of the statute cannot be applied retroactively to him as it would violate the ex post facto clauses of the United States and Kentucky constitutions.
In denying Milburn's motion, the trial court found that his motion was not ripe for review. We agree.
[T]wo of the most fundamental rules applied by the courts when considering constitutional challenges are "one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully." Liverpool, New York & Philadelphia S.S. Co. v. Commissioners, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885); Communist Party of United States, 367 U.S. at 71-72, 81 S.Ct. 1357. In part, this principle is based upon the realization that, by the very nature of the judicial process, courts can most wisely determine issues precisely defined by the confining circumstances of particular situations.
W.B. v. Commonwealth, 388 S.W.3d 108, 113-14 (Ky. 2012).
Milburn is presently serving his five-year sentence, or may already have been released on postincarceration supervision. In any event, he may never be subject to revocation proceedings before the Parole Board.
His situation differs significantly from that of the appellants in the Jones case, who mounted their constitutional challenge to KRS 532.043(5) after they served their sentences, were released and placed on conditional discharge, violated the terms of their discharge, and were revoked and reincarcerated. By contrast, any opinion in Milburn's case would be purely advisory in nature, and thus beyond the scope of our jurisdiction. Commonwealth v. Hughes, 873 S.W.2d 828, 829-30 (Ky. 1994).
Moreover, Milburn has failed to show that the amended section of the statute is potentially an ex post facto law.
An ex post facto law is any law, which criminalizes an act that was innocent when done, aggravates or increases the punishment for a crime as compared to the punishment when the crime was committed, or alters the rules of evidence to require less or different proof in order to convict than what was necessary when the crime was committed. The key inquiry is whether a retrospective law is punitive.
Buck v. Commonwealth, 308 S.W.3d 661, 664-65 (Ky. 2010) (internal citations omitted). Milburn has not explained how the amended section, which simply shifts the authority to revoke postincarceration supervision to the Parole Board, is punitive in nature. As a panel of this Court recently held, "given that the 2011 amendments to KRS 532.043 were merely procedural in nature, the fact that [the appellant] committed his offenses prior to their enactment is irrelevant." Melcher v. Commonwealth, 471 S.W.3d 699, 702 (Ky.App. 2015).
The trial court's order denying Milburn's motion for modification of sentence is affirmed.
2013-CA-000926-MR
Milburn argues that the trial court erred in denying his motion to amend his PSI. The trial court denied the motion on the grounds that it was untimely, Milburn had been given an opportunity to correct the PSI at his sentencing on August 30, 2009, and that opportunity had expired.
KRS 532.050(6) provides:
Before imposing sentence, the court shall advise the defendant or his or her counsel of the factual contents and conclusions of any presentence investigation or psychiatric examinations and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The court shall provide the defendant's counsel a copy of the presentence investigation report.
Milburn argues he was never given the opportunity to review or correct his PSI. He claims he was not in court on August 30, 2009, as the trial court stated, but was actually in court for final sentencing on October 7, 2009. He further claims his attorney never obtained a copy of the PSI and never reviewed it with him.
The record shows the trial court ordered a PSI on June 4, 2009, after Milburn entered his guilty plea. In its judgment granting probation, entered on October 16, 2009, the trial court stated Milburn was present for sentencing with his attorney on September 30, 2009 and October 7, 2009, and the trial court had considered the PSI report. The trial court misstated the date of the sentencing in its order denying the motion to amend, but this error has no impact on the reasoning underlying its decision. There is absolutely no indication in the record that Milburn's attorney was not provided a copy of the report.
Furthermore, whatever the merits of Milburn's claims, he filed his motion to correct the PSI on April 11, 2013, over three years after he was sentenced. He has provided no legitimate reason to explain this delay. Under the circumstances, the trial court did not abuse its discretion in denying his motion to correct the PSI.
2014-CA-001156-MR
Milburn argues he should have been allowed to withdraw his guilty plea because he received an "illegal sentence" when he was granted probation on his five-year sentence for rape in the third degree; his plea was not voluntary; and the trial court violated the "statutory intent" of KRS 439.3401.
After sentencing, "the trial court should not `exercise its judicial discretion by allowing the withdrawal of the plea . . ., unless it appears that the accused's consent to plead guilty was unwillingly given and made under circumstances of fear, deceit, or coercion."' Allee v. Commonwealth, 454 S.W.2d 336, 341 (Ky. 1970) (quoting Kidd v. Commonwealth, 255 Ky. 498, 74 S.W.2d 944 (1934)).
Under KRS 532.047, "[p]robation shall not be granted to . . . a person who has been designated as a violent offender as defined in KRS 439.3401, unless such probation is granted in accordance with KRS 439.3401." KRS 439.3401(1)(e) defines "violent offender" to include an individual who has pled guilty or been convicted of the "commission or attempted commission of a felony sexual offense described in KRS Chapter 510[.]" Milburn was convicted of rape in the third degree, a class D felony, under KRS 510.060(1)(b). Thus, the plea agreement conferred a considerable benefit on Milburn to which he was not statutorily entitled. He reaped the benefit of that agreement when he was granted probation and remained on probation for almost two years before he violated its terms. Having benefitted, he cannot withdraw the plea and renegotiate the agreement when he is no longer benefitting from its terms.
Milburn further claims he was coerced into entering the plea because the Commonwealth offered to dismiss a bail jumping charge that would have led to a property bond foreclosure on a family home. The dismissal of this charge was simply one of the benefits of the plea agreement, and all the evidence in the record indicates his plea was entered knowingly and voluntarily.
Because Milburn received a benefit under the plea agreement to which he was not statutorily entitled, and has failed to demonstrate the plea was entered unknowingly or unwillingly, the trial court did not abuse its discretion in refusing to allow him to withdraw from it.
Finally, Milburn argues the trial court abused its discretion in refusing his motion for DNA testing. He raises this argument for the first time in his reply brief. The reply brief is not the appropriate device for raising original arguments on appeal. CR 76.12(4)(c)(v); Milby v. Mears, 580 S.W.2d 724, 728 (Ky.App. 1979). In any event, the claim is without merit.
Entry of a voluntary, intelligent plea of guilty has long been held by Kentucky Courts to preclude a post-judgment challenge to the sufficiency of the evidence. E.g. King v. Commonwealth, Ky., 408 S.W.2d 622, 623 (1966); Harris v. Commonwealth, Ky., 441 S.W.2d 143 (1969); Bartley v. Commonwealth, Ky., 463 S.W.2d 321 (1971). The reasoning behind such a conclusion is obvious. A defendant who elects to unconditionally plead guilty admits the factual accuracy of the various elements of the offenses with which he is charged. By such an admission, a convicted appellant forfeits the right to protest at some later date that the state could not have proven that he committed the crimes to which he pled guilty. To permit a convicted defendant to do so would result in a double benefit in that defendants who elect to plead guilty would receive the benefit of the plea bargain which ordinarily precedes such a plea along with the advantage of later challenging the sentence resulting from the plea on grounds normally arising in the very trial which defendant elected to forego.
Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky.App. 1986).
Milburn's request for DNA testing is a challenge to the sufficiency of the evidence and, consequently, is barred by his entry of a valid guilty plea. The trial court's order denying his motion for such testing is affirmed.
Based on the foregoing, the opinion and orders of the Jefferson Circuit court are affirmed.
ALL CONCUR.
