NOT TO BE PUBLISHED

OPINION

DIXON, Judge.

The Commonwealth of Kentucky appeals an order of the Lincoln Circuit Court granting the appellee, David Ice's, motion to terminate the period of conditional discharge he was serving pursuant to Kentucky Revised Statutes (KRS) 532.043. We reverse.

Ice plead guilty to one count of sexual abuse, first-degree, for engaging in inappropriate sexual acts with his fourteen-year-old stepdaughter. On August 13, 2010, final judgment was entered and Ice was sentenced to two years' imprisonment and five years' conditional discharge in accordance with KRS 532.043. Approximately one month after judgment was entered, the Supreme Court of Kentucky determined that the 2010 version of KRS 532.043(5)1 was unconstitutional because it violated the separation of powers provision of the Kentucky Constitution. See generally Jones v. Commonwealth, 319 S.W.3d 295 (Ky. 2010)(requiring the circuit court to impose conditions set by the executive branch was unconstitutional). The court also determined that the section was severable and the remainder of the statute stayed in effect. Id. In 2011, the statute was amended by the Public Safety and Offender Accountability Act, House Bill 463, which replaced the term "conditional discharge" with "postincarceration supervision" and amended the statute's revocation procedures by vesting revocation power in the parole board.2 Gen. Assemb., 11 Reg. Sess. HB-463, at 117-18 (Ky. 2011).

In the meantime, on June 3, 2011, Ice was released on conditional discharge. On January 4, 2013, Ice filed a "motion to terminate period of post-incarceration supervision." The motion did not state which rule the request was being brought under, but simply asserted that the 2010 version of KRS 532.043 was unconstitutional because it violated double jeopardy. Although the constitutionality of the statute was in question, the Attorney General was not notified or given a chance to respond as required by KRS 439.265. Despite this fact, the circuit court determined that it could review the case for palpable error pursuant to Kentucky Rules of Criminal Procedure (RCr) 10.26. Ultimately, the circuit court declined to address the argument presented by Ice and instead held that the remainder of Ice's conditional discharge must be terminated because section five was not severable from the remainder of the statute and, as a result, the portion of the judgment relating to conditional discharge was void.3 The court went on to conclude that manifest injustice would result if Ice's period of conditional discharge was not terminated.

On appeal, the Commonwealth asserts that the circuit court did not have jurisdiction to hear the motion. The Commonwealth also points out that Ice has not violated his conditional discharge and is asking the court to predict what might happen if he does. Further, the Commonwealth contends the statute was corrected and retroactive application would not amount to an ex post facto law. Ice responds by asserting that the court had jurisdiction to vacate pursuant to Kentucky Rule 5 of Civil Procedure (CR) 60.02 because the judgment, as it relates to conditional discharge, was void.4 Ice also asserts that the Jones decision, although finding that the provision was severable, had not provided a means for enforceability. As a result, Ice contends the entire statute became unconstitutional. Finally, Ice avers that applying the amended provision would amount to an ex post facto violation.

We review the circuit court's decision to grant the CR 60.02 motion for an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). "A trial court abuses its discretion when it renders a decision which is arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Williams v. Commonwealth, 229 S.W.3d 49, 51 (Ky. 2007). In this case, the circuit court opinion is unsupported by sound legal principles because it directly contradicts the Kentucky Supreme Court's holding in Jones.5 Furthermore, there is room for debate regarding whether or not Ice is asking this Court to issue an advisory opinion because he has yet to violate his conditional discharge. However, even assuming the case is ripe for review, we are unable to reach the substantive issues because procedural irregularities precluded review by the circuit court. Therefore, we reverse.

Ice asserts that the judgment is void, which is an argument that could and should have been raised under RCr 11.42. "A defendant who is in custody under sentence or on probation, parole or conditional discharge, is required to avail himself of RCr 11.42 as to any ground of which he is aware, or should be aware, during the period when the remedy is available to him." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). In other words, "[t]he language of RCr 11.42 forecloses the defendant from raising any questions under CR 60.02 which are `issues that could reasonably have been presented' by RCr 11.42 proceedings." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). Jones v. Commonwealth, was finalized long before the statutory period set forth in RCr 11.42 ended. Thus, assuming for the sake of argument that the judgment was rendered void as a result of Jones, Ice should have been aware of this fact and raised the issue via an RCr 11.42 motion.

Lastly, although no rule was cited by Ice below, his brief on appeal acknowledges that his motion was brought under CR 60.02. While the circuit court relied on Jones, for the proposition that RCr 10.26 allows for palpable error review despite failure to comply with KRS 438.075, this reliance is misplaced because the procedural posture of this case is distinguishable. Jones, involved an appeal from a revocation hearing, whereas this case involves a collateral attack on a judgment. This Court has held that "[n]either RCr 10.26 nor its language has application when reviewing a decision under CR 60.02. . . ." Stoker v. Commonwealth, 289 S.W.3d 592, 598 (Ky. App. 2009). Thus, we follow the general rule that "[u]nless the record shows that the requirements of KRS 418.075 have been observed, any judgment rendered which decides the constitutionality of a statute shall be void." Maney v. Mary Chiles Hosp., 785 S.W.2d 480, 482 (Ky. 1990). Notifying the Attorney General in this matter is particularly important because if the statute is declared unconstitutional, anyone who was sentenced under the old version of the statute, who is currently serving conditional discharge, could have his conditional discharge terminated.

In summary, this matter was not properly before the circuit court and the court acted outside the scope of its authority by issuing an opinion that directly contradicted existing precedent. For the foregoing reasons, we reverse.

NICKELL, JUDGE, CONCURS.

TAYLOR, JUDGE, CONCURS IN RESULT ONLY.