NOT TO BE PUBLISHED
OPINION
STUMBO, Judge.
Barbara Gordon appeals from an order of the Shelby Circuit Court denying her petition for a declaration of rights and permanent injunctive relief from a decision of the Kentucky Parole Board. Gordon argues that the circuit court improperly failed to conclude that the Board applied an ex post facto law when it increased the deferment of Gordon's parole eligibility from 144 to 240 months. We conclude that an evidentiary hearing is required to determine if the law imposes a risk of increasing Gordon's time of incarceration and is therefore an unconstitutional ex post facto law. As such, we reverse the circuit court's determination that the Board did not apply an ex post facto law when it increased the deferment of Gordon's parole eligibility, and remand the matter for an evidentiary hearing.
On July 17, 1997, the Kenton Circuit Court rendered a judgment reflecting a jury verdict finding Gordon guilty of one count each of murder and attempted murder. Gordon was sentenced to 70 years in prison, which she is serving at the Kentucky Correctional Institution for Women in Shelby County, Kentucky. At the time of Gordon's conviction, the statutory maximum deferral period for parole consideration was 144 months or 12 years. That law was amended in 1998 to increase the maximum period of deferral to 240 months or 20 years. Gordon went before the Parole Board on November 19, 2008 — after the implementation of the amended law — at which time the Board denied her request for parole and deferred the next parole consideration date for 240 months.
Thereafter, Gordon filed a Petition for Declaration of Rights and Permanent Injunctive Relief in Shelby Circuit Court challenging the Board's decision as an ex post facto violation, an arbitrary exercise of government power, and an incorrect application of 501 KAR 1:030 Section 3(f). Gordon argued that by extending the term of her parole eligibility deferral from 144 months to 240 months, the Board's decision was an improper and retroactive application of the law, thus violating the state and federal constitutional prohibitions against the application of ex post facto laws. The focus of her argument was that the maximum deferral period at the time of her conviction must apply, and that the subsequent application of the amended law, which increased the deferral period, was ex post facto and therefore, unconstitutional.
After the circuit court overruled the Commonwealth's motion to dismiss the action as not subject to judicial review, it rendered an order on January 19, 2011, denying Gordon's petition for relief. The court determined in relevant part that there is no right to parole in Kentucky and that the Board's exercise of parole consideration is purely discretionary. It went on to conclude that an ex post facto law is a new statute which makes more onerous the punishment for crimes committed before its enactment. The court determined that the statute which increased the maximum parole deferment from 144 to 240 months, and which was enacted after Gordon's conviction, did not disadvantage Gordon nor make more onerous the punishment for her crimes. The court also found that irrespective of the statute, Gordon was not entitled to parole at any stage of her incarceration, and that the application of the amended parole statute did not increase her 70-year sentence. As such, the court concluded that the Board did not improperly apply an ex post facto law. This appeal followed.
Gordon now argues that the circuit court erred in denying her petition for a declaration of rights and injunctive relief. She contends that the Board and the circuit court incorrectly interpreted 501 KAR 1:030 Section 3(f) and KRS 439.3401 to allow a deferment of her parole eligibility for up to 20 years. She also maintains that the deferment is violative of the constitutional prohibition against the application of ex post facto laws and that the circuit court employed an incorrect standard in reviewing the law. She also argues that the Board improperly applied the law retroactively because it was enacted after her conviction, that the deferment was otherwise arbitrary, and that the court erred in denying her petition without conducting an evidentiary hearing. She seeks an order reversing the Shelby Circuit Court order and granting her request for a declaration of rights and permanent injunctive relief.
The United States Constitution at Article 1, Section 9, bars the passage of an ex post facto law, and was made applicable to the states by Article 1, Section 10. An ex post facto law is a new statute which makes more onerous the punishment for crimes committed before its enactment. Lattimore v. Corrections Cabinet, 790 S.W.2d 238 (Ky. App. 1990), citing Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). In order to be characterized as ex post facto, the law must 1) apply to events occurring before the enactment, and 2) disadvantage the offender. Id. And finally, the Kentucky Supreme Court has interpreted the Kentucky Constitution's ex post facto clause at Section 19(1) as equivalent to the U.S. Constitution's provision.
KRS 439.3401(2) states that a "violent offender who has been convicted of a capital offense and who has received a life sentence . . . shall not be released on probation or parole until he has served at least twenty (20) years in the penitentiary[.]" This provision is made applicable to persons, like Gordon, who receive less than a life sentence by application of 501 KAR 1:030(3)(f).
The question for our consideration, then, is whether the Shelby Circuit Court properly concluded that Kentucky's amended deferment statute (in concert with the regulatory provision applied by the Board) did not apply to events occurring before its enactment and did not disadvantage Gordon. Stated differently, in order to determine whether Gordon was subject to an unconstitutional ex post facto law, we must ask whether the application of the amended deferment statute under the facts at bar poses a sufficient risk of increasing her time of incarceration. If that question is answered in the affirmative, the amended statute cannot be applied to Gordon because such application would be ex post facto.
We find persuasive the reasoning of Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), and California Department of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). These cases, and their progeny, stand for the proposition that retroactive changes in statutes governing the parole of prisoners may violate the ex post facto clause of the United States Constitution. While the Commonwealth properly notes that there is no right to parole in Kentucky, the United States Supreme Court has held that the presence or absence of an affirmative, enforceable right is not relevant to the ex post facto analysis. Weaver v. Graham, 450 U.S. 24, 32, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). Rather, the prohibition against ex post facto legislation centers on the lack of fair notice when punishment is increased retroactively. Id. "Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense." Id. The statute at issue — which reflects a privilege rather than a right — is properly characterized as one which is "accorded by the grace of the legislature[.]" Id.
This leads us to the question of whether every change in parole procedure which produces any risk of producing a retroactive and onerous effect is necessarily unconstitutional. We must answer this question in the negative. The court in Morales opined that the question of whether the change constitutes a violation of the ex post facto prohibition is whether it "produces a sufficient risk of increasing the measure of punishment attached to the covered crimes." Morales, 514 U.S. at 509. This standard is applicable herein. The Morales court declined to construct a formula for determining what constitutes a "sufficient risk." Rather, it looked to the entirety of the record and opined that such a determination "must be a matter of degree." Id. The court expressly avoided constructing a formula so that it would not find itself in the position of micromanaging every change in parole procedure. Id.
The question of whether the application of the amended statute herein poses a "sufficient risk" of increasing Gordon's time of incarceration cannot be answered by reference to the appellate record, and must be addressed by the circuit court rather than de novo on appeal. Accordingly, additional discovery and a hearing on the issue are required.
For the foregoing reasons, we reverse the opinion and order of the Shelby Circuit Court, and remand the matter for a determination of whether the application of the amended statute poses a sufficient risk of increasing Gordon's time of incarceration.
KELLER, JUDGE, CONCURS.
VANMETER, JUDGE, DISSENTS WITHOUT OPINION.
