APPELLANT 

RENDERED: AUGUST 25, 2016 

TO BE PUBLISHED 

$10tyrrtur 6:turf of ti rutu-ritv-,xi 

2014-SC-000241-DG 

JONATHAN MCDANIEL 

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 thirddegree 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 fiveyear 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); 2and (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 

1Here, 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." 

2In 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). 

3 Conditional 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. 4The 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. 5Order, 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. 

4DPA 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 postdisposition 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. 

5This 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 regulations501 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 

6Apparently 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. 7Alert 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 

 contemplates for the most part that those invoking it will do so only once, 

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, 9the 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 

10Cf. 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 & 12As 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." 

12As 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 

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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 13does 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. 

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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-d23 
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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