Case Explained: AG seeks emergency appeal over retroactive sentencing ruling – Legal Perspective

LOUISVILLE, Ky. (WAVE) – Kentucky Attorney General Russell Coleman filed an emergency appeal Friday asking a higher court to intervene in a legal challenge to the Safer Kentucky Act, after a circuit court judge struck down part of the law’s application to inmates convicted before it took effect.

The dispute centers on Toby Berry, who pleaded to assault, strangulation and unlawful imprisonment in May 2024 and received a nine-year sentence. At the time of the crimes, the mandated serve rate for those offenses was 20%.

When the Safer Kentucky Act became law in July 2024, strangulation was reclassified as a crime carrying an 85% serve rate and that standard has since been applied to Berry’s case.

Berry is represented by Tim Arnold of Kentucky’s Department of Public Advocacy in a class action lawsuit challenging that application.

In February, Franklin Circuit Court Judge Phillip Shepherd struck down part of the law, ruling the Department of Corrections had applied the new serve rate retroactively to people whose crimes occurred before the law changed. The judge said that violated the state constitution’s ban on ex post facto laws — laws that punish people for something that was not illegal, or was not as serious, when they committed it.

Coleman disagreed with the ruling and filed an emergency appeal Friday asking the Court of Appeals to step in and pause the reversal while litigation continues. In a statement, Coleman warned that without court action, more than 240 violent offenders could soon be released into Kentucky neighborhoods.

“Unless the Court of Appeals steps in, more violent criminals could soon be back in your neighborhood,” Coleman said in a statement.

Arnold said the ruling does not result in any immediate releases.

“All the judge did was require the Department of Corrections to enforce the law that existed at the time of the crime,” Arnold said. “It doesn’t release anybody. The claim that we have 242 violent offenders about to be released into the public is histrionic.”

Arnold also said the higher serve rate was never authorized by the legislature for crimes committed before the law changed.

“Whatever the penalty for the crime was on the day it was committed should be the penalty,” Arnold said. “They are applying a penalty that wasn’t the penalty at the time of the offense to these individuals and they’re doing so based not on a legal directive from the legislature. The legislature didn’t pass a law that said to do that.”

The judge who denied Coleman’s initial request to pause the ruling also disagreed with the attorney general’s position.

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