ISAAC L. DUNLAP V. COMMONWEALTH OF KENTUCKY — NOT TO BE PUBLISHED - OPINION AND ORDER OTHER

RENDERED: OCTOBER 16, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0163-MR ISAAC L. DUNLAP APPELLANT v. APPEAL FROM PULASKI CIRCUIT COURT HONORABLE EDDY MONTGOMERY, JUDGE ACTION NOS. 23-CR-00481 AND 23-CR-00538 COMMONWEALTH OF KENTUCKY APPELLEE AND NO. 2025-CA-0642-MR ISAAC L. DUNLAP APPELLANT v. APPEAL FROM PULASKI CIRCUIT COURT HONORABLE EDDY MONTGOMERY, JUDGE ACTION NOS. 23-CR-00481 AND 23-CR-00538 COMMONWEALTH OF KENTUCKY APPELLEE

-- 1 of 6 --

-2- OPINION AND ORDER DISMISSING APPEAL ** ** ** ** ** BEFORE: THOMPSON, CHIEF JUDGE; MCNEILL AND MOYNAHAN, JUDGES. MCNEILL, JUDGE: Isaac L. Dunlap (“Dunlap”) appeals from the Pulaski Circuit Court’s judgment convicting him of one count of first-degree fleeing or evading police, four counts of first-degree wanton endangerment, one count of operating a motor vehicle while under the influence of alcohol (third offense), and one count of operating a motor vehicle while license is suspended for driving under the influence (first offense), and sentencing him to ten years in prison. For the reasons below, we dismiss the appeal as moot. BACKGROUND The facts relevant to this appeal are largely procedural. After pleading guilty to the above charges, Dunlap filed a written motion seeking probation. In the motion, he represented that there was some confusion about whether Dunlap’s fleeing or evading conviction required him to be treated as a violent offender under recently enacted House Bill 5.1 Dunlap also noted that 1 2024 Kentucky Laws Ch. 174 § 32. As noted by appellee, this confusion possibly stemmed from House Bill 5’s amendment to both Kentucky Revised Statutes (“KRS”) 439.3401, the violent offender statute, and KRS 520.095, the fleeing-or-evading statute. Both parties and the circuit court below, as well as Dunlap on appeal, make repeated references to “violent offender,” but Dunlap’s conviction for fleeing for first-degree fleeing or evading police does not appear, in any way, to implicate KRS 439.3401.

-- 2 of 6 --

-3- House Bill 5 increased the penalty for first-degree fleeing or evading from a class D felony to a class C felony and required offenders to serve at least 50% of the sentence before being eligible for probation, shock probation, conditional discharge, or parole (“the 50% rule”). Dunlap argued that House Bill 5 was not retroactive and, in any event, its application would not affect his eligibility for probation because he had already served fourteen months in jail, more than the 50% of his two-year sentence required under the amended KRS 520.095. At the sentencing hearing, the circuit court found that House Bill 5 was retroactive because “retroactivity doesn’t apply to sentencing,” and therefore Dunlap was required to serve 50% of his first-degree fleeing-or-evading sentence before becoming eligible for probation. However, the court noted that House Bill 5’s applicability likely made no difference in this case because Dunlap had already served over 50% of the sentence. Ultimately, the court denied probation, finding a substantial risk that Dunlap would commit another offense during probation, that he needed correctional treatment, and that probation would unduly depreciate the seriousness of the offense. The court entered a written judgment in accordance with its oral findings but made no mention of the 50% probation-eligibility issue. The court subsequently entered an amended judgment to reflect that Dunlap must serve at least 50% of his sentence for first-degree fleeing or evading police before being released on probation, shock probation, conditional discharge,

-- 3 of 6 --

-4- or parole pursuant to KRS 520.095.2 Dunlap filed a motion to alter, amend, or vacate the judgment, arguing that the amendments to KRS 520.095 were not retroactive. The circuit court denied the motion, and this appeal followed. ANALYSIS The only issues raised on appeal are (1) whether the circuit court erred in finding that House Bill 5 retroactively applies to Dunlap’s conviction for first- degree fleeing or evading police and (2) whether House Bill 5 is an unconstitutional ex post facto law as applied in this case. Because resolving these issues would have no practical legal effect for Dunlap, the appeal is moot. “The law in Kentucky is well-settled that in order to bring an appeal, a party must be aggrieved or prejudiced by the judgment or order below.” Commonwealth v. Branham, 717 S.W.3d 572, 574 (Ky. App. 2025) (citing Civil Serv. Comm’n v. Tankersley, 330 S.W.2d 392, 393 (Ky. 1959)). “Parties are not allowed to argue moot questions of law on appeal.” Id. (citing Tankersley, 330 S.W.2d at 393). Because an appellate court lacks jurisdiction to reach the merits of a moot appeal, mootness is a threshold issue for a reviewing court. 2 The court, in fact, entered both an amended judgment and a second amended judgment. The amended judgment incorrectly found that Dunlap was a “violent offender” under KRS 439.3401 due to his conviction for first-degree fleeing or evading police. As noted above, the court (as well as the parties below) appear to have been confused by the fact that House Bill 5 amended both the violent offender statute as well as the first-degree fleeing or evading police statute. The second amended judgment corrected this error.

-- 4 of 6 --

-5- Commonwealth, Kentucky Bd. of Nursing v. Sullivan University System, Inc., 433 S.W.3d 341, 343 (Ky. 2014) (citations omitted). “Kentucky caselaw defines [a] ‘moot case’ [as] one which seeks to get a judgment . . . upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy.” Rushin v. Commonwealth, 701 S.W.3d 293, 297 (Ky. 2024) (internal quotation marks and citation omitted). Here, it is undisputed that Dunlap had already served over 50% of his two-year sentence for first-degree fleeing or evading police when the circuit court denied his request for probation. Further, the circuit court denied probation not because it found he was ineligible due to the 50% rule, but because it found there was a substantial risk that Dunlap would commit another crime during the period of probation, that he needed correctional treatment best provided by the Department of Corrections, and that to probate the sentence would unduly depreciate its seriousness. KRS 533.010(2). Thus, any ruling on whether the circuit court erred in applying House Bill 5’s 50% rule to Dunlap’s case would have no practical legal effect for Dunlap. CONCLUSION Accordingly, we dismiss the appeal as moot. ALL CONCUR.

-- 5 of 6 --

-6- ENTERED: ____10/16/2026____ HON. J. CHRISTOPHER MCNEILL JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Shannon Dupree Frankfort, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Joseph Crawford White Assistant Attorney General Frankfort, Kentucky

-- 6 of 6 --