                                       RENDERED: AUGUST 25, 2016


                                                       xi
                                               TO BE PUBLISHED

           $10tyrrtur 6:turf of         ti   rutu-ritv-,
                        2014-SC-000241-DG

JONATHAN MCDANIEL                                          APPELLANT


               ON REVIEW FROM COURT OF APPEALS
V.       CASE NOS. 2012-CA-001172-MR; 2012-CA-001299-MR;
                     AND 2012-CA-001513-MR
            CALLOWAY CIRCUIT COURT NO. 09-CR-00181


COMMONWEALTH OF KENTUCKY                                    APPELLEE


                        2014-SC-000242-DG


DAVID DESHIELDS                                            APPELLANT


               ON REVIEW FROM COURT OF APPEALS
V.       CASE NOS. 2012-CA-001172-MR; 2012-CA-001299-MR;
                     AND 2012-CA-001513-MR
           MCCRACKEN CIRCUIT COURT NO. 09-CR-00547


COMMONWEALTH OF KENTUCKY                                   APPELLEE


                        2014-SC-000243-DG


JOHN C. MARTIN                                             APPELLANT


               ON REVIEW FROM COURT OF APPEALS
V.       CASE NOS. 2012-CA-001172-MR; 2012-CA-001299-MR;
                     AND 2012-CA-001513-MR
            ANDERSON CIRCUIT COURT NO. 09-CR-00042


COMMONWEALTH OF KENTUCKY                                   APPELLEE
               OPINION OF THE COURT BY JUSTICE HUGHES

        AFFIRMING ON OTHER GROUNDS AND VACATING IN PART

      Prior to an amendment in 2011, Kentucky Revised Statute (KRS)

532.043 provided in part that in addition to the other penalties authorized by

law, any person convicted of certain offenses, including any felony offense

under KRS Chapter 510, the Penal Code chapter addressed to sex offenses,

"shall be subject to a period of conditional discharge" following the "expiration

of sentence." KRS 532.043(1) (2006). In May and July of 2012, Jonathan

McDaniel, David DeShields, and John Martin, all inmates at the State

Reformatory in LaGrange, Kentucky, and all serving sentences for felony sex

offehses, filed very similar pro se motions in their respective trial courts

challenging the legality of the conditional discharge requirement and seeking to

have the discharge period deleted from their sentences. All three trial courts

denied the motion, and all three defendants appealed. In each case, the trial

court, although having denied the defendant's request for Department of Public

Advocacy (DPA) assistance in the trial court with the motion itself, granted his

request for DPA assistance on appeal. The Court of Appeals consolidated the

three cases; denied DPA's request to be allowed to withdraw; and ultimately,

although for reasons having little to do with the issues raised in the trial

courts, affirmed the trial court's ruling in each case. We granted the

defendants' joint motion for discretionary review to address their concern that

the Court of Appeals inappropriately characterized their trial court motions as

having been brought pursuant to Kentucky Rule of Criminal Procedure (RCr)

11.42, and to address our own concern that the Court of Appeals, perhaps in

                                         2
its eagerness to try to calm the waters after the 2011 amendment to KRS

532.043, inappropriately ruled on a question not properly before it. Our review

strengthening rather than allaying these concerns, we affirm the Court of

Appeals' ultimate affirmance of the trial court rulings denying relief, but

"vacate" the Court of Appeals' opinion except as to the issue of whether

Martin's and McDaniel's guilty pleas were subject to appellate review.

                               RELEVANT FACTS

      Although the procedural history of this case, particularly the effect of

appointed counsel's involvement once DPA was belatedly enlisted in the cause,

is most germane to the issues before us, we necessarily begin with brief

accounts of the three defendants' cases. In March 2010, Jonathan McDaniel

pled guilty in the Calloway Circuit Court to one count of first-degree sex abuse,

victim under twelve (KRS 510.110), a class C felony that McDaniel committed

on or about May 19, 2009. In its May 2010 Final Judgment, after previously

accepting McDaniel's plea bargain, the trial court sentenced McDaniel to six

years' imprisonment, subject to the mandatory five-year conditional discharge

period in KRS 532.043.

      David DeShields pled guilty in the McCracken Circuit Court in

September 2010 to two counts of first-degree sex abuse, victim under twelve,.

for crimes committed in June and October of 2009. The trial court's November

2010 Final Judgment reflected DeShields's plea bargain and sentenced

DeShields to two six-year terms of imprisonment, the two terms to run

concurrently. Among other consequences of a sex offense, such as treatment


                                         3
and registration requirements, the Judgment also noted the five-year

conditional discharge requirement.

      In January 2011, John Martin pled guilty in the Anderson Circuit Court

to six counts of first-degree sex abuse, to two counts of second-degree sodomy

(KRS 510.080, a class C felony), and to one count each of second and third-

degree rape (KRS 510.050, Class C felony, and 510.060, Class D felony). The

crimes were committed against a single victim and spanned the years 2001 to

2007, with at least two of the crimes having been committed after July 2006,

when the General Assembly increased the conditional discharge period from

three years to five. The trial court's April 2011 Final Judgment incorporates

Martin's plea bargain for concurrent sex-abuse and sodomy sentences together

with consecutive rape sentences for a total sentence of twenty-three years'

imprisonment. As do the others, Martin's Final Judgment also notes the five-

year conditional discharge requirement.

      As noted above, the defendants all were incarcerated at the LaGrange

Reformatory, and the motions they each filed seeking to have the conditional

discharge portion of their sentences removed are similar enough to suggest

that they all worked from the same template or had the assistance of the same

"legal aide." They challenged the conditional discharge requirement on a

number of grounds (not all of which are stated with the utmost clarity), but

principally (1) as a sentence "enhancement" imposed on the basis of judicial

fact-finding in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), which

generally requires the jury to find any fact that will allow an "enhanced" or-
"aggravated" sentence;' (2) as a judicially imposed harsher sentence than the

sentence bargained for with the Commonwealth, contrary to Bailey v.

Commonwealth, 70 S.W.3d 414 (Ky. 2002) (construing KRS 532.070, which

allows trial court amelioration of jury-imposed sentences the, court believes too

harsh); 2 and (3) as a "second" sentence for the given crime, in violation of the

Double Jeopardy Clause of the United States Constitution, which clause

generally forbids that crimes be punished more than once. 3




       1 Here, of course, the defendants waived jury fact-finding by pleading guilty,
and each of them, by pleading guilty to a felony offense within KRS Chapter 510,
admitted the fact (no judicial fact-finding required) that subjected them to the
conditional discharge "enhancement."
      2  In Bailey the Court reiterated that KRS 532.070 does not authorize a trial
court to impose a sentence harsher than the one the jury imposed. As Bailey clarified,
of course, KRS 532.070 does not apply to sentences arrived at via guilty plea. To the
extent, however, that the defendants invoked Bailey to assert that trial courts also are
not authorized to impose a harsher sentence than the one bargained for, cf. RCr 8.10,
which disallows, in the guilty-plea context, a harsher than bargained for sentence
unless the trial court gives the defendant notice of the harsher sentence and an
opportunity to withdraw his plea. The gist of the defendants' argument, or at least a
principal part of the argument, appears to be that conditional discharge was precisely
a judicially added "harshener" to the plea bargain. That argument clearly does not
apply to one of the cases, that of DeShields, for at DeShields's plea colloquy the trial
court referred expressly to the conditional discharge requirement. During their
colloquies conditional discharge was not mentioned expressly, but Martin and
McDaniel both acknowledged having been advised by counsel of "all the penalties"
made possible by their crimes, and neither of them objected at sentencing when the
conditional discharge requirement was included as a part (a mandatory part) of their
bargained-for sentences. Martin, to be sure, moved, in the days immediately prior to
his sentencing, to withdraw his plea, and he complained that counsel had failed
generally to explain the plea's consequences. But he did not mention conditional
discharge (or any other specific consequence) in particular, and the trial court, on the
basis of its review of the plea colloquy, concluded that Martin's plea had been
voluntary and did not otherwise justify withdrawal. Martin did not challenge those
rulings by way of appeal. Cf. Commonwealth v. Tigue, 459 S.W.3d 372 (Ky. 2015)
(discussing pre-sentence motions to withdraw a guilty plea).
      3Conditional discharge, of course, although an addition to the term-of-years
sentence either bargained for (as in these cases) or imposed by the jury, is not a
"second" punishment imposed in the course of a "second" jeopardy, as disallowed by
                                            5
       When their respective trial courts rejected these challenges and denied

their motions to amend their sentences, the defendants filed notices of appeal,

and each, as noted, was granted DPA assistance. DPA's motion in the Court of

Appeals to be relieved of that responsibility can fairly be interpreted as DPA's

assertion that the appeals, and the trial court motions underlying them, were

meritless. 4 The Court of Appeals, however, hopeful that DPA briefing would

shed light on an "issue of first impression" before the Court—"a legal challenge

to the conditional discharge provision of KRS 532.043"—denied DPA's request

to withdraw. 5 Order, No. 2012-CA-001172-MR (Oct. 24, 2012).

       DPA then duly filed briefs on behalf of Martin, McDaniel, and DeShields,

but (not surprisingly, perhaps, given DPA's apparent assessment of the

defendants' trial court motions) the arguments DPA raised on appeal did not

have much to do with the issues addressed by the trial courts. Instead, after

DPA entered the case, Martin's and McDaniel's claims that their trial courts




the Double Jeopardy Clause, but is merely a portion of a single sentence imposed in
the course of the original jeopardy.
        4 DPA brought its motion pursuant to KRS 31.110(2)(c), which provides that the
right to counsel under KRS Chapter 31 does not extend to DPA representation in post-
disposition proceedings unless the proceeding is one "that a reasonable person with
adequate means would be willing to bring at his or her own expense." DPA's
insistence that these appeals did not meet that standard, strongly suggests that in
DPA's view the appeals were meritless.
        5 This case well illustrates the difficulties courts, trial and appellate, confront as

they try to make the most of the limited supply of DPA representation. While we
certainly agree with the Court of Appeals that DPA has a vital role to play in the
articulation of novel criminal justice issues, it must be apparent that its ability to fill
that role on appeal will be marginal, at best, where it has had no hand in shaping the
trial court record, and where, by its own estimate, that record provides no opening by
which the "novel" issue might legitimately be reached.

                                              6
had sentenced them beyond their plea bargains morphed into claims that,

because those two defendants were unaware when they entered their pleas of

the conditional discharge portion of their sentences, their pleas were

involuntary and thus invalid.

      DPA's main argument, an argLiment it made on behalf of all three

defendants, had even less to do with the defendants' original motions. An

understanding of this argument requires a brief discussion of KRS 532.043

(2006), the conditional discharge statute. As noted already, that statute

provided that persons convicted of certain specified offenses, including felony

sex offenses, shall serve, in addition to their ordinary term-of-years sentences,

an additional period of conditional discharge. When the statute first came into

effect in 1998, the discharge period was three years. Effective as of July 2006,

the General Assembly increased the discharge period to five years.

      As originally conceived by the General Assembly, conditional discharge

was a sort of probation/parole hybrid. Like parole, the defendant's discharge

came after judicial proceedings had ceased and jurisdiction expired, and the

conditions of discharge were specified by the Department of Corrections. KRS

532.043(3) (2006). As with probation, however, revocation proceedings were

assigned to prosecutors and the courts. KRS 532.043(5) (2006).

      In 2010, in Jones v. Commonwealth, 319 S.W.3d 295 (Ky. 2010), in

response to a separation of powers issue raised by DPA, this Court held that

that hybrid approach violated our Kentucky Constitution's strong separation of

powers provisions by involving the courts—the judicial branch—in the


                                         7
Department of Corrections'—the executive branch's—affairs. While "[t]he

General Assembly can," we explained, "consistent with the separation of

powers doctrine, create a form of conditional release with terms and

supervision by the executive branch[,] . . . the statutory scheme runs afoul of

the separation of powers doctrine when revocation is the responsibility of the

judiciary." 319 S.W.3d at 299-300.

      In response to Jones, in 2011 the General Assembly, as part of the

massive House Bill 463, changed the name from "conditional discharge" to

"postincarceration supervision," and amended subsection 5 of KRS 532.043 to

provide for Parole Board, rather than judicial, oversight of revocations. By

early 2012 the Department of Corrections had issued regulations governing

postincarceration supervision revocation proceedings, including regulations-

501 Kentucky Administrative Regulations (KAR) 1:070—devoted to sex offender

revocation proceedings.

      In its briefs on behalf of Martin, McDaniel, and DeShields, DPA focused

on this statutory shift from the judicial revocation procedures in effect at the

time of the defendants' offenses, to the new Parole Board procedures that

would likely be in effect when the defendants completed their periods of

incarceration and became subject to postincarceration supervision. DPA

argued that the new procedures accorded persons under supervision less

protection against revocation (hence producing additional incarceration) than

did the former procedures, such that application of the new procedures to the

defendants would amount to a due process violation, the sort of "fair warning"


                                         8
violation the United States Supreme Court addressed in Bouie v. City of

Columbia, 378 U.S. 347 (1964). In that case a state supr :eme court's surprising

reinterpretation of one of the state's criminal statutes was held to raise under

the federal Constitution's Due Process Clause "fair warning" concerns

analogous to those addressed by the Ex Post Facto Clause with respect to

criminal-law changes brought about by new legislation. 6

       Simply put, the defendants' cases mutated in DPA's opening Court of

Appeals briefs. They changed from the defendants' relatively straightforward

illegal-sentence claims (claims DPA had already indicated it had no interest in

pursuing), to, in Martin's and McDaniel's cases, challenges to their guilty pleas,

and in all three cases to a "due process" claim that looked a lot like an ex post

facto claim. And the mutating was not over.

      The defendants' original motions to amend their sentences and the trial

courts' orders denying those motions did not make reference to any particular

rule or statute authorizing the motion, but in each of its briefs to the Court of

Appeals, the Commonwealth asserted, parenthetically, that each defendant's




       6 Apparently DPA purports to justify raising on appeal this patently
unpreserved claim by noting that the defendants' trial court motions, in conjunction
with their reference to Apprendi, also refer to the federal Constitution's Due Process
Clauses, as though that bald reference put the trial court on notice of every case
everywhere in which "due process" has in any way been construed. Needless to say
(we would hope), that notion does not comport with an adequate understanding of
notice pleading and its requirements or of motion practice. Ashcroft v. Iqbal, 556 U.S.
662 (2009) (discussing and applying Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), which adopted a "facial plausibility" standard for pleadings under Federal Rule
of Civil Procedure 8(a)(2), the federal counterpart of our CR 8.01(1)). And see CR 7.02,
which requires that motions for trial court orders "state with particularity the grounds
therefor."

                                           9
motion should be understood as having been brought pursuant to RCr 11.42,

which authorizes persons under a criminal sentence to collaterally attack that

sentence by filing an appropriate motion in the sentencing court. Because the

defendants' motions had indeed sought to correct what the defendants

maintained was an invalid portion of their sentences, the Commonwealth's

seemingly offhand proposal to tidy up the record by expressly invoking RCr

11.42 may not at first glance have seemed controversial.

       In fact, however, the proposal was not mere "housekeeping" of the record.

In general, RCr 11.42 gives a person under sentence one, and only one,

opportunity to "state all grounds for holding the sentence invalid." RCr

11.42(3). Generally, a second such motion is not allowed.        Gross v.

Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983) (describing Kentucky's

"organized and complete" set of procedures "for attacking the final judgment of

a trial court in a criminal case"); McQueen v. Commonwealth, 949 S.W.2d 70

(Ky. 1997) (affirming the denial of a successive RCr 11.42 motion). Thus,

characterizing the defendants' motions as RCr 11.42 motions would likely

preclude the defendants from invoking RCr 11.42 "again" to attack their

judgments on the ground, say, of ineffective assistance of counsel, which is

perhaps the most common use of RCr 11.42. 7 Alert to that consequence of the

Commonwealth's proposal, DPA devoted the entirety of its reply briefs in the




       7 Indeed, one of the defendants, Martin, not long after his motion "to amend

sentence" was denied, filed an RCr 11.42 motion asserting, among other things,
ineffective assistance of counsel.

                                          10
appellate court to arguing that the defendants' motions would be more

appropriately understood as brought pursuant to Rule of Civil Procedure (CR)

60.02, which also allows, in narrow circumstances, collateral relief from a

criminal sentence. Gross, 648 S.W.2d at 856-57.

      The cases before the Court of Appeals thus bore little resemblance to the

cases decided by the trial courts. Whereas the trial courts had been asked to

address Apprendi, Bailey (implicitly RCr 8.10), and double jeopardy, the Court

of Appeals had before it whether, and if so how best, to characterize the

defendants' motions; whether Martin and McDaniel pled guilty involuntarily;

and whether the after-the-crime change from "conditional discharge" to

"postincarceration supervision" and from judicial to Parole Board revocation

procedures somehow encroached upon the defendants' right to due process.

Clearly, apples and oranges.

      Unfortunately for DPA, none of this recasting of the case accomplished

anything. The Court of Appeals agreed with the Commonwealth that the

defendants' motions could appropriately be deemed "11.42s"; it declined to

address the validity of Martin's and McDaniel's guilty pleas, since neither

defendant had challenged his plea in the trial court; and, although (somewhat

inconsistently) it did address the equally unpreserved "due process"/"ex post

facto" issue regarding revocations, it rejected DPA's contention that Parole

Board revocation procedures so altered the "postincarceration" revocation

landscape as to implicate the "fair warning" concerns that often accompany

retrospective changes to the criminal law.


                                        11
      We granted the joint motion for discretionary review because we agree

with the defendants that the Court of Appeals' RCr 11.42 characterization of

their trial court motions raises significant fairness concerns similar to those

the United States Supreme Court addressed in Castro v. United States, 540

U.S. 375 (2003). We are persuaded, furthermore, that, even aside from the

lack of preservation, when the defendants presented their "due process"/"ex

post facto" claims to the Court of Appeals they were not ripe and therefore were

not reviewable. We must thus "vacate," as it were, almost all of the Court of

Appeals opinion. Since those issues, however, have virtually no bearing on the

trial court orders underlying these appeals, and since no one has suggested

that those orders were erroneous, we affirm the Court of Appeals' bottom line,

which was to affirm the trial courts' orders.

                                    ANALYSIS

I. The Court Of Appeals Erred By Characterizing the Defendants'
   Unlabeled Motions as RCr 11.42 Motions.

      As noted above, when the Court of Appeals characterized the defendants'

"motions to amend" as having been brought pursuant to RCr 11.42, that

characterization had consequences, or at least potential consequences, beyond

merely establishing the standard of appellate review. Since for the most part a

person under criminal sentence is limited to one RCr 11.42 motion, the effect

of the Court of Appeals' characterization would be to preclude, or at least to

limit severely, the defendants' subsequent resort to that Rule. In Castro, supra,

the United States Supreme Court encountered a similar situation.



                                         12
      There, the appellant, Castro, a federal prisoner under sentence for a drug

conviction, filed in 1994 in the federal district court a pro se motion for a new

trial, a motion Castro styled as having been brought under Rule (Fed. R. Crim.

Proc.) 33. In its response, the Government noted that the motion was more

appropriately construed to invoke the federal habeas statute, 28 U.S.C. § 2255,

and then a couple of times in the Opinion accompanying its denial of the

motion, the district court referred to it as a "§ 2255" motion. Like our RCr

11.42, 28 U.S.C. 2255 allows persons under sentence to attack the sentence

collaterally, but it strictly limits a person's "second or successive" use of its

procedure. Still pro se, Castro appealed from the denial of his 1994 motion,

but he did not challenge the district court's recharacterization of it.

      Some three years later, in 1997, Castro, again pro se, filed what he called

a "§ 2255" motion, wherein he alleged, among other things, that he had

received ineffective assistance of counsel. After some back-and-forth between

the district court and the Eleventh Circuit Court of Appeals, the district court

ruled that the 1997 motion was Castro's second "§ 2255" motion—the 1994

motion being the first—and dismissed the 1997 motion for failing to meet one

of the conditions (prior appellate court approval) for a "second or successive"

motion under the habeas statute. The Eleventh Circuit affirmed the dismissal,

but in doing so it urged district courts prior to recharacterizing prisoners' pro

se pleadings to "'warn prisoners of the consequences of recharacterization and

provide them with the opportunity to amend or dismiss their filings."'      Castro,




                                          13
540 U.S. at 379 (quoting Castro v. United States, 290 F.3d 1270, 1274 (11th

Cir. 2002)).

      The United States Supreme Court granted Castro's petition for certiorari,

and early in its analysis it noted the widespread recognition among the federal

circuit courts that "by recharacterizing as a first § 2255 motion a pro se

litigant's filing that did not previously bear that label, [a] court may make it

significantly more difficult for that litigant to file another such motion."                                                         Castro,

540 U.S. at 382. In light of that risk (and in accord with what already was the

practice in most of the federal circuits), the Court then, pursuant to its

supervisory powers over the federal judiciary, held that before a district court

may recharacterize a pro se litigant's motion as a first § 2255 motion, it

      must notify the pro se litigant that it intends to recharacterize
      the pleading, warn the litigant that this recharacterization
      means that any subsequent § 2255 motion will be subject to
      the restrictions on 'second or successive' motions, and provide
      the litigant an opportunity to withdraw the motion or to amend
      it so that it contains all the § 2255 claims he believes he has.

Castro, 540 U.S. at 383. Absent this admonition, "the motion cannot be

considered to have become a § 2255 motion for purposes of applying to later

motions the law's 'second or successive' restrictions." Id.

      As we have noted, RCr 11.42, like the federal habeas statute, 8

                                                                          contemplatesforthemostpart hat hoseinvokingitwil dos onlyonce,



       8 Kentucky Rule of Criminal Procedure 11.42 was originally conceived as an
analogue in our system to 28 U.S.C. § 2255, and while our Rule departed in its
specifics from the federal law, its function remains similar. Fraser v. Commonwealth,
59 S.W.3d 448, 452 (Ky. 2001) (discussing the advent of our current Criminal Rules
and in particular of RCr 11.42).

                                          14
raising in a single motion all grounds for collateral relief from the challenged

sentence that could then reasonably be presented. RCr 11.42(3). In

furtherance of that purpose, our rule implicitly imposes similarly strict limits

on subsequent motions, Gross, supra, and there is thus the risk that the

characterization of a pro se litigant's pleading as an initial RCr 11.42 motion

could "make it significantly more difficult for that litigant to file another such

motion." Castro, 540 U.S. at 382.

      We agree with the defendants, accordingly, and invoke our supervisory

power to hold, that before a trial court characterizes a pro se litigant's

unlabeled motion as an "11.42" or recharacterizes a motion the pro se litigant

has labeled some other way as an "11.42," it must advise the litigant that it is

doing so, must warn the litigant about the possible subsequent-motion

consequences, and must give the litigant an opportunity to withdraw or to

amend his or her motion. If pro se litigants are not so admonished, the subject

motion cannot later be used against them as a bar to a "subsequent" motion

under RCr 11.42. Accord, People v. Shellstrom, 833 N.E.2d 863 (Ill. 2005)

(adopting a Castro like admonition rule for pro se petitions deemed to come
                   -




within the state's Post-Conviction Hearing Act); Dorr v. Clarke, 733 S.E.2d 235

(Va. 2012) (requiring a Castro like admonishment before recharacterization of a
                               -




pro se pleading as a petition pursuant to the state habeas corpus statute); and

see Barker v. Commonwealth, 379 S.W.3d 116 (Ky. 2012) (discussing this

Court's supervisory power over the judicial branch and applying that power to

require that probationers be admonished, before testifying at a revocation


                                         15
hearing, of the extent to which their testimony could be used against them at a

subsequent criminal trial).

      In these cases, of course, it was the Court of Appeals and not the trial

courts that characterized the pro se motions as "11.42s," and so the rule we

have just announced is implicated only indirectly. We understand the

appellate panel's desire to be certain about what it was dealing with, since the

character of a motion or pleading bears not only on standing prerequisites and

the showing the movant must make to be entitled to relief, but also on an

appellate court's standard of review. As the Supreme Court noted in Castro,

there are thus good reasons in many instances for a trial court to characterize

or to recharacterize a pro se motion or pleading. The court may want "to avoid

an unnecessary dismissal, . . . to avoid inappropriately stringent application of

formal labeling requirements, . . . or to create a better correspondence between

the substance of a pro se motion's claim and its underlying legal basis."

Castro, 540 U.S. at 381-82. RCr 11.42 itself, moreover, contemplates trial

court characterization or recharacterization by indicating that application of

the Rule hinges on the motion's substance, not the manner in which it is

styled. RCr 11.42(4). The rule we announce today is in no way intended to

discourage trial courts from characterizing pro se motions as "11.42s" when

appropriate, it is only meant to ensure that the pro se litigant be made aware of

the possible consequences and be given an opportunity in light thereof to

reconsider.




                                        16
       On the other hand, neither is our ruling here intended to require trial

courts to characterize pro se motions. Where, for example, as seems likely to

have occurred in these cases, the trial court determines that regardless of how

the motion is characterized it could not give rise to any sort of relief—the legal

theory being patently off the mark—the court is not obliged to engage in

(re)characterization. In that instance, however, unless the litigant himself has

expressly invoked RCr 11.42, the motion will not count as an initial "11.42" so

as to limit the litigant's subsequent resort to that rule.

       Notwithstanding its good intentions, therefore, the Court of Appeals

panel erred by characterizing as "11.42s" the motions the trial courts left

ambiguous. At the appellate stage the defendants could not withdraw or recast

their motions, and, for the reasons discussed above, without that opportunity

we deem it unfair to saddle those defendants with the difficulty of showing the

justification for a successive RCr 11.42 motion should they file one.

       Aside from the possible "successive motion" consequence, however,

which we hereby preclude, 9 the defendants have not suggested how they were

prejudiced by the Court of Appeals' characterization of their motions. In our

view, likewise, the appellate panel's error in characterizing the motion as

"11.42s" was otherwise harmless.




      9 Because the defendants will not suffer any prejudice from the fact that their
motions were not characterized in the trial court, we reject their suggestion that the
remedy for the appellate panel's error should be a remand to the trial courts for
characterization there.

                                           17
          Theoretically, we suppose, by construing the defendants' trial court

motions as "11.42s," the Court of Appeals inappropriately limited the scope of

its review and could be thought to have neglected the possibility that the

motions might have fared better under the standards of some other rule, a

possibility the trial courts implicitly considered and rejected. As noted above,

however, DPA, on behalf of the defendants, made no attempt whatsoever before

the Court of Appeals to argue that the trial courts erred in their assessments of

the defendants' original motions. It argued instead that the defendants were

entitled to relief on grounds never before raised or addressed. Similarly, before

this Court the defendants have made no attempt to show that, had it not

limited itself to RCr 11.42, the Court of Appeals might have assessed some part

of their appeals differently. Aside from the "successive RCr 11.42 motion"

concern addressed above, therefore, we are convinced that to the extent the

Court of Appeals erred by characterizing the defendants' motions as "11.42s,"

the error was harmless and does not entitle the defendants to any additional

relief.

II. The Court Of Appeals Should Not Have Addressed the Merits of the
    Defendants' Unripe "Due Process"' " Ex Post Facto" Claim.

          The defendants also maintain that the legislative and regulatory changes

enacted during 2011 and 2012, whereby responsibility for revocations of

postincarceration supervision was transferred from the courts to the Parole

Board,rn constitute, as applied to anyone whose offense predates the 2011


      10 Cf. KRS 532.043(5) (2006): "If a person violates a provision specified in

subsection (3) of this section, the violation shall be reported in writing to the

                                           18
amendment of KRS 532.043(5), a violation of both the Kentucky and the federal

constitutional guarantees against ex post facto laws.il & 12 As the defendants

correctly note, those provisions forbid, among other things, "[e]very law that

changes the punishment, and inflicts a greater punishment, than the law

annexed to the crime, when committed. Peugh v. United States,                  U.S.

133 S. Ct. 2072, 2078 (2013) (quoting Calder v. Bull, 3 Dall. 386, 390, 1 L. Ed.

648 (1798)).

       With respect to this "greater punishment" sort of ex post facto claim, the

"touchstone" of the inquiry, the Supreme Court has explained, "is whether a

given change in law presents a 'sufficient risk of increasing the measure of

punishment attached to the covered crimes."' Peugh, 133 S. Ct. at 2082



Commonwealth's attorney in the county of conviction. The Commonwealth's attorney
may petition the court to revoke the defendant's conditional discharge and
reincarcerate the defendant as set forth in KRS 532.060." and KRS 532.043(5) (2011):
"If a person violates a provision specified in subsection (3) of this section, 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." (Emphasis supplied to indicate amendment.).
       11 Section 19(1) of the Kentucky Constitution provides that "[n]o ex post facto
law, nor any law impairing the obligation of contracts, shall be enacted." Article 1, §
10 of the Constitution of the United States provides that "[n]o State shall . . . pass any
Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts."
       12 As noted above, before the Court of Appeals the defendants argued that the
new revocation procedures violated their right under the Due Process Clause of the
federal Constitution to "fair notice" of the consequences of their crimes, an argument,
as discussed by the Commonwealth in its Court of Appeals response, more at home, in
this case at least, under the Ex Post Facto Clause. Before us, the defendants, as is
their wont, have shifted ground somewhat and have made the ex post facto claim
express by citing ex-post-facto cases and by insisting that "the lack of due process
afforded to defendants facing post-incarceration supervision revocation is so great, it
amounts to an ex post facto violation." It is the ex post facto claim, therefore, that we
discuss. We note, however, that any vestigial claim remaining under the Due Process
Clause would share the ex post facto claim's lack of ripeness.

                                             19
(quoting Garner v. Jones, 529 U.S. 244, 250 (2000), which in turn quotes

California Dept. of Corrections v. Morales, 514 U.S. 499, 509 (1995)). "Not every

retroactive procedural change creating a risk of affecting an inmate's terms or

conditions of confinement is prohibited." . Garner, 529 U.S. at 250 (citation

omitted). Whether a change in law creates a sufficient risk of increased

punishment, rather, "is 'a matter of degree[,]"' the Court has noted, and the test

"cannot be reduced to a 'single formula."' Peugh, 133 S. Ct. at 2082.

      In Garner, the Court acknowledged that "[r]etroactive changes in laws

governing parole of prisoners, in some instances, may be violative of this

precept [the precept against retroactively increasing punishment]." 529 U.S. at

250. But in the parole context, too, the controlling inquiry is "whether

retroactive application of the change in . . . law created 'a sufficient risk of

increasing the measure of punishment attached to the covered crimes."' Id.

(quoting Morales, 514 U.S. at 509).

      The defendants contend that the change in law whereby the Parole

Board, rather than the courts, oversees revocations from postincarceration

supervision creates a sufficiently serious risk of increased punishment—

increased incarceration as a result of more readily imposed revocation—to

render the 2011 amendment to KRS 532.043(5) an ex post facto law with

respect to persons whose crimes predate the amendment. They base this

contention on a comparison, in some detail, of the revocation procedures

recently promulgated by the Parole Board with those formerly provided by the

courts. This comparison shows, they maintain, that the Parole Board


                                         20
procedures provide less protection against revocation than did the judicial

ones.

         The Court of Appeals rejected this argument outright (or at least the beta

version of it with which it was confronted). In the panel's view, "the new

procedures actually afford offenders more due process than did the previous

proceedings." Martin v. Commonwealth, No. 2012-CA-001172-MR, p. 6 (April 4,

2014).

         We decline to enter this debate, because we are convinced that it was

premature. The Supreme Court has made clear that the federal Ex Post Facto

Clause 13 does not provide a platform for the launching of speculative or

abstract complaints about changes to the criminal law, but requires that the

complainant be affected by the change in some real and concrete way.             Dobbert

v. Florida, 432 U.S. 282, 300-01 (1977) (refusing to consider a claim that parole

ineligibility provisions added to a statute authorizing a life sentence amounted

in that case to an ex post facto violation, because the claimant did not receive a

life sentence); Morales, 514 U.S. at 509 (reversing grant of habeas corpus,

because statutory change allowing deferrals of parole reconsideration "create[d]

only the most speculative and attenuated possibility of producing the

prohibited effect[,] [i.e, increased punishment]. . and such conjectural effects

are insufficient" to establish a violation of the Ex Post Facto Clause); Weaver v.

Graham, 450 U.S. 24, 29 (1981) (noting that "two critical elements must be



        13 There is no claim here that Section 19 of the Kentucky Constitution calls for
a different interpretation.

                                            21
present for a criminal or penal law to be ex post facto: it must be retrospective,

that is, it must apply to events occurring before its enactment, and it must

disadvantage the offender affected by it.") (footnotes and citations omitted,

emphasis added); cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)

(explaining that the "irreducible constitutional minimum of standing" includes,

among other elements, the requirement that "the plaintiff must have suffered

an 'injury in fact' . . . which is (a) concrete and particularized, . . . and (b)

actual or imminent, not 'conjectural' or 'hypothetical!) (citations and internal

quotation marks omitted).

      At the time they brought their "due process"/"ex post facto" contentions

to the Court of Appeals, all of the defendants were still serving their sentences

and so had not even graduated to postincarceration supervision, much less

been confronted by a Parole Board revocation proceeding. None of them, in

other words, had yet been affected, and certainly not disadvantaged or injured,

in any concrete way by the amendment to KRS 532.043(5). There was every

possibility that the defendants would emerge from their terms of

postincarceration supervision without encountering the new revocation

process. Their concerns at the time they raised them were thus purely

conjectural. The Court of Appeals should not have addressed them.

      Their claims, moreover, based solely on a facial analysis of the numerous

provisions of the new Parole Board regulations, also raise the sort of ripeness

concerns we discussed recently in W.B. v. Commonwealth, 388 S.W.3d 108 (Ky.

2012), another case in which the plaintiff challenged the constitutionality of a


                                           22
complex administrative investigative procedure—the Department of Community

Based Services' process for investigating (and substantiating or not) allegations

of child abuse. Although in W.B. the agency had initiated the administrative

process, and thus confronted the plaintiff with a real enough risk of injury, we

nevertheless denied the plaintiff's request for a sort of preemptive

constitutional review ahead of the administrative action.

      We did so, we explained, lest the lack of a concrete record involve us in

factual speculation and require us to address the statute more generally than

would be necessary were the case allowed to play out. "'Passing upon the

possible significance of the manifold provisions of a broad statute[,]"' we noted,

"in advance of efforts to apply the separate provisions is analogous to

rendering an advisory opinion upon a statute or a declaratory judgment upon a

hypothetical case."' 388 S.W.3d at 113 (quoting Communist Party of the United

States v. Subversive Activities Control Bd., 367 U.S. 1, 71 (1961)). Without "an

actual administrative proceeding to review," we worried, our consideration of

the case "would in large part be confined to engaging in an academic and

abstract view of the Cabinet's regulatory scheme. The basic rationale of the

ripeness requirement is to prevent the courts, through the avoidance of

premature adjudication, from entangling themselves in abstract

disagreements[.]'" 388 S.W.3d at 314 (quoting Abbott Labs. v. Gardner, 387

U.S. 136, 148 (1967), abrogated on other grounds by Califano' v. Sanders, 430

U.S. 99 (1977)). But abstract disagreement about the merits of judicial vis-d-




                                        23
vis Parole Board revocation procedures and academic commentary on the

Parole Board's regulatory scheme are the essence of the defendants' claims.

      Again, we decline the invitation to join that debate. We impose no undue

hardship by insisting that the defendants' claims must wait until they have

become concrete and immediate enough to implicate real ex post facto

concerns.

                                   CONCLUSION

      In sum, although we affirm the bottom line at which the Court of Appeals

arrived in these cases—i.e., affirmance of the trial court orders denying the

defendants' motions to amend their sentences, we "vacate," in effect, two

aspects of the Court of Appeals' Opinion.

      We do not approve, first, the Court of Appeals' characterization of the

defendants' unlabeled trial court motions as RCr 11.42 motions. Trial courts

may characterize or recharacterize a pro se litigant's pleading as an initial

"11.42," to spare the litigant, for example, from the summary consequences of

an inappropriate label, or simply to clarify for all concerned the procedural

context and lay of the land. Before the trial court does so, however, it must

advise the litigant of its intention, warn the litigant that the characterization

will likely make it harder for the litigant to bring a subsequent motion under

that Rule, and allow the litigant an opportunity to withdraw the pleading or to

supplement it. Because generally an appellate court will not be in a position to

offer the litigant this opportunity to reconsider, it will generally be

inappropriate, and was inappropriate in this case, for the appellate court to


                                          24
(re)characterize as an RCr 11.42 motion a pro se pleading. The defendants'

"motions to amend" in these cases should not, therefore, be used against them

as any sort of bar to their subsequent resort to RCr 11.42.

      Also inappropriate, we are convinced, was the Court of Appeals' decision

to address the merits of the defendants' unpreserved and unripe "due

process"/"ex post facto" challenge to the amended version of KRS 532.043(5).

The defendants will have ample opportunity to raise that challenge if the Parole

Board ever invokes its new revocation procedures against them.

With these caveats, we hereby affirm the decision of the Court of Appeals to the

extent it affirms the trial courts' orders denying defendants' motions.

      All sitting. All concur.

COUNSEL FOR APPELLANTS
JONATHAN MCDANIEL AND
DAVID DESHIELDS:

Meredith Krause
Assistant Public Advocate
Department of Public Advocacy

COUNSEL FOR APPELLANT
JOHN C. MARTIN:

Margaret Anne Ivie
Assistant Public Advocate
Department of Public Advocacy


COUNSEL FOR APPELLEES:

Andy Beshear, Attorney General of Kentucky

Thomas Allen Van De Rostyne
Christian Kenneth Ray Miller
Assistant Attorney General
Office of the Attorney General
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