Background
Simeyon Johnson was indicted in December 2023 for the murder of Thomas Wideman in Franklin Circuit Court. Through mediation in September 2024, Johnson and the Commonwealth reached a tentative plea agreement under which he would plead guilty to second-degree manslaughter (a Class C felony) and receive a ten-year sentence. At the time of the agreement, both parties understood that Johnson would not be classified as a violent offender and would be eligible for parole after serving twenty percent of his sentence.
The understanding proved complicated by an amendment to KRS 439.3401, Kentucky’s violent-offender parole statute, which took effect on July 15, 2024—after the commission of the crime but before Johnson entered his plea. The amended statute expanded the definition of “violent offender” to include any felony involving the death of a victim or serious physical injury, rather than limiting that category to Class B felonies or higher. Because second-degree manslaughter is a Class C felony involving death, Johnson would fall within the new definition and be required to serve eighty-five percent of his sentence before parole eligibility. The Department of Corrections (DOC) released a parole-eligibility chart confirming that persons sentenced after July 15, 2024 would be subject to the amended statute.
In December 2024, Johnson moved for a declaratory judgment within his criminal case, arguing that applying the amended statute to him would constitute an impermissible ex post facto violation. He served the motion on the Attorney General and the DOC, both of which responded—raising not only the merits but also procedural objections including standing, ripeness, and the absence of the DOC as a party. The Franklin Circuit Court nonetheless ruled in Johnson’s favor in February 2025, holding that the pre-amendment version of KRS 439.3401 governed his parole eligibility. Johnson then entered a conditional guilty plea, and the court entered a judgment memorializing the twenty-percent parole eligibility term. The Attorney General appealed both the interlocutory order and the final judgment, which were consolidated on appeal.
The Court’s Holding
The Kentucky Court of Appeals reversed and remanded without reaching the ex post facto merits, holding that the Franklin Circuit Court lacked authority to adjudicate Johnson’s violent-offender classification in the context of his criminal case. The court emphasized that it is the DOC—not the sentencing court—that classifies convicted offenders for parole purposes, citing Pate v. Department of Corrections, 466 S.W.3d 480 (Ky. 2015). Because the DOC was not a party to the criminal proceeding, the trial court had no basis to enter orders binding on the DOC’s classification decisions under KRS 418.075.
The court reaffirmed longstanding Kentucky precedent—including Mason v. Commonwealth, 331 S.W.3d 610 (Ky. 2011), and Hoskins v. Commonwealth, 158 S.W.3d 214 (Ky. App. 2005)—that a criminal offender who disputes a parole classification must bring a separate declaratory action against the DOC in Franklin Circuit Court, where the DOC can be made a party and heard. The court also cited its recent unpublished decision in Bass v. Commonwealth, No. 2025-CA-0615-MR (Ky. App. Jan. 16, 2026), which reached the same procedural conclusion on the identical KRS 439.3401 amendment question.
The court distinguished the Kentucky Supreme Court’s decision in Rushin v. Commonwealth, 701 S.W.3d 293 (Ky. 2024), where the Supreme Court had excused an identical procedural defect and reviewed the merits because the DOC had participated at all stages of the dispute without raising procedural or jurisdictional objections. Here, by contrast, the Attorney General and DOC affirmatively raised jurisdictional and procedural objections in the circuit court, and the DOC’s limited participation—filing a response to the motion—did not rise to the level of participation across all stages that justified the Rushin exception.
Key Takeaways
- A criminal defendant who disputes the DOC’s classification of him as a violent offender for parole purposes cannot obtain relief through a motion in his criminal case; he must file a separate civil declaratory action against the DOC in Franklin Circuit Court, where the DOC is a named party.
- The Rushin exception—allowing merits review of a procedurally improper declaratory motion in a criminal case—applies only when the DOC participates at all stages of the dispute without raising procedural or jurisdictional objections; actively contesting jurisdiction forecloses that exception.
- The 2024 amendment to KRS 439.3401 expanding the violent-offender definition to include Class C felonies involving death continues to generate litigation; the ex post facto question remains unresolved by this decision and must be addressed in a proper civil action.
- A conditional guilty plea preserving the right to withdraw if the parole-eligibility ruling is reversed does not cure the underlying procedural defect; the court’s reversal reopens that contingency for Johnson.
Why It Matters
This decision reinforces a procedural rule with significant practical consequences for defendants navigating plea negotiations in the wake of the 2024 amendment to Kentucky’s violent-offender statute. Defense counsel who secure favorable parole-eligibility rulings within a criminal case—rather than through a separate civil action against the DOC—risk having those rulings vacated on procedural grounds, potentially destabilizing conditional plea agreements built around them. The ruling makes clear that the proper forum for challenging a DOC parole classification is a standalone declaratory action, and that defendants should pursue that remedy before, or independently of, their criminal proceedings.
More broadly, the decision leaves the underlying ex post facto question—whether the 2024 amendment to KRS 439.3401 can constitutionally be applied to offenders whose crimes predate the amendment—entirely open. Given that both this case and the unpublished Bass decision turned on procedure rather than substance, defense attorneys across Kentucky face ongoing uncertainty about whether clients convicted of Class C felonies involving death and sentenced after July 15, 2024, must serve twenty or eighty-five percent of their sentences before parole eligibility. That question will ultimately need to be resolved by the Kentucky Supreme Court in a properly postured declaratory action.