Joshua Creutz v. Commonwealth of Kentucky ( 2023 )

RENDERED: OCTOBER 20, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-0432-MR
JOSHUA CREUTZ APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE MARY K. MOLLOY, JUDGE
ACTION NO. 06-CR-00004
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING
AND REMANDING
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BEFORE: COMBS, JONES, AND MCNEILL, JUDGES.
COMBS, JUDGE: On January 6, 2006, a Kenton County Grand Jury indicted the
Appellant, Joshua Creutz (Creutz), of sodomy in the first degree, a class A felony,
in violation of KRS1 510.070, occurring on or about October 28, 2005. On
September 1, 2006, the Grand Jury indicted Creutz of Count 2, sodomy in the first
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Kentucky Revised Statutes.
degree, a class A felony, in violation of KRS 510.070, occurring between August
1, 2005, and October 28, 2005.
On March 19, 2007, Creutz entered a plea of guilty to the charge of
sodomy in the first degree, a class A felony. Upon the Commonwealth’s motion,
the charge contained in count 2 of the indictment was dismissed.
On May 4, 2007, the Kenton Circuit Court entered final judgment.
The court sentenced Creutz to a term of twenty (20) years and “FURTHER
ORDERED AND ADJUDGED that, in addition to the foregoing sentence,
pursuant to KRS 532.043, the Defendant is sentenced to a period of conditional
discharge for five (5) years from and after expiration of his sentence or completion
of parole.” (Emphasis original.)
On June 29, 2022, Blake Taylor, Offender Information Services,
Department of Corrections, filed a letter in Kenton Circuit Court dated June 23,
2022, as follows in relevant part:
This correspondence is in reference to the Final
Judgment Sentence of Imprisonment the Department of
Corrections has received for Joshua Creutz in Kenton
Circuit Court indictment number 06-CR-00004.
Joshua Creutz stands convicted of Sodomy, 1st Degree --
victim LT 12 YOA which was committed 10/28/05.
The court[’]s order states that Joshua Cruetz [sic] is
sentenced to a five (5) year period of conditional
discharge which appears not to be in agreement with
KRS 532.043 which requires a three (3) year period of
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conditional discharge based upon the dates the offenses
were committed.
It was not the intent of the court to place this offender on
a five (5) year period of conditional discharge, I
respectfully request an amended order be forwarded to
our office. If no amendment is received, he will remain
on a five (5) year period of conditional discharge as
ordered by the court.
A hand-written notation at the bottom of the letter signed by
Honorable Mary K. Molloy, Judge, dated 7/13/22, states that “I defer to previous
judge (Greg Bartlett) decision on this matter.”
On December 27, 2022, Creutz, pro se, filed a motion to correct final
judgment and sentence, stating in relevant part:
1. That the Movant is currently being housed at the
Kentucky State Reformatory [KSR] . . . under the
custody and care of the Kentucky Department of
Corrections.
2. That the Movant stands convicted of Sodomy 1st
Degree [sic] that was allegedly occurred on October
28, 2005.
3. That the charge that the Movant stands convicted of
was alleged to have occurred prior to July 12, 2006.
4. That pursuant to 2000 Ky. HB 475 the Movant is only
subject to a three year Conditional Discharge.
5. That the Movant has exhausted his Administrative
Remedies when he filed a “17.4 Administrative
Review Form.”
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6. That as a result of the “17.4 Administrative Review
Form”, Blake Taylor, Correctional Offender
Information Supervisor, KSR sent a letter to this
Honorable Court requesting the amendment of the
Judgment of Conviction. (SEE EXHIBIT 1)
7. That since the date of June 23, 2022, the Judgment of
Conviction in the above mentioned case has not been
amended.
(Emphasis original.)
By Order entered March 10, 2023, the Kenton Circuit Court denied
Creutz’s motion as follows in relevant part:
The relevant statute (KRS 532.043) prior to July 12,
2006, allowed for a conditional discharge of three (3)
years but was changed on July 12, 2006, to allow for a
conditional discharge of five (5) years. The acts for
which the Defendant stands convicted occurred in 2005,
while the Final Judgment and Sentence was not imposed
until 2007, after the statute changed. Under these
circumstances, the determination of the term of years for
the conditional discharge was within the discretion of the
Judge who imposed that sentence. This Court shall not
disturb the prior Judge’s decision to impose the longer
period of conditional discharge.
Creutz, pro se, appeals and argues that the trial court abused its
discretion in denying his motion. The Commonwealth responds that it is
compelled to concede that Creutz is subject to the three-year period of post-
incarceration, not five years.
As the Commonwealth explains, KRS 532.043 requires that any
person convicted of an offense under KRS Chapter 510 -- which includes first-
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degree sodomy -- is subject to a period of post-incarceration supervision. The
Commonwealth also notes that the five-year period has only been in effect since
the statute was amended in 2006; that the statute previously required a three-year
period;2 and that under Kentucky law, defendants are subject to the law in effect
when the offense was committed, citing Sanderson v. Commonwealth, 291
S.W.3d 610 (Ky. 2009).
In Sanderson, the appellant was convicted of two counts of second-
degree sodomy and three counts of first-degree sexual abuse and was sentenced to
five years of conditional discharge. Our Supreme Court held that:
[T]he version of KRS 532.043 in effect at the time these
offenses were allegedly committed (prior to July 2006)
only allowed for a conditional discharge of three years.
The situation here is on point with Purvis v.
Commonwealth, 14 S.W.3d 21 (Ky. 2000), where a prior
amendment of KRS 532.043 increased the maximum
length of conditional discharge. In Purvis, this Court
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The version of KRS 532.043 which was effective to July 11, 2006, provided as follows in
relevant part:
(1) In addition to the penalties authorized by law, any person
convicted of, pleading guilty to, or entering an [North Carolina
v. Alford, 400 U.S. 25, 901 S. Ct. 160, 27 L. Ed. 2d 162(1970),] plea to a felony offense under KRS Chapter 510 . . .
shall be subject to a period of conditional discharge following
release from:
(a) Incarceration upon expiration of sentence; or
(b) Completion of parole.
(2) The period of conditional discharge shall be three (3) years.
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held that the amendment disadvantaged the Appellant in
that case and that its retroactive application was an ex
post facto law and, thus unconstitutional. Id. at 24. The
situation here is identical. Therefore, Appellant’s
sentence to conditional discharge could not exceed
three years, the statutory maximum at the time the
alleged offenses took place.
Sanderson, 291 S.W.3d at 615 (Ky. 2009)(emphasis added). Accordingly, we
conclude that the trial court abused its discretion in denying Creutz’s motion.
We reverse the Order of the Kenton Circuit Court denying Creutz’s
motion to correct final judgment and sentence and remand this case for entry of an
amended judgment imposing a conditional discharge of three years.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Joshua Creutz, pro se Daniel Cameron
LaGrange, Kentucky Attorney General of Kentucky
Stephanie L. McKeehan
Assistant Attorney General
Frankfort, Kentucky
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