JOSEPH CARTER V. COMMONWEALTH OF KENTUCKY — NOT TO BE PUBLISHED - OPINION OTHER

RENDERED: OCTOBER 16, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2026-CA-0416-MR JOSEPH CARTER APPELLANT v. APPEAL FROM HARDIN CIRCUIT COURT HONORABLE JOHN D. SIMCOE, JUDGE ACTION NO. 23-CR-00830 COMMONWEALTH OF KENTUCKY APPELLEE OPINION VACATING AND REMANDING ** ** ** ** ** BEFORE: COMBS, A. JONES, AND MOYNAHAN, JUDGES. JONES, A., JUDGE: Joseph Carter appeals from the Hardin Circuit Court’s judgment and sentence following his guilty plea to three counts of possession or viewing of matter portraying a sexual performance by a minor over twelve but under eighteen, in violation of KRS1 531.335. Carter raises a single assignment of error: the trial court erred when it concluded that it lacked discretion to probate his 1 Kentucky Revised Statutes.

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-2- sentence. The Commonwealth concedes the error and agrees that remand for resentencing is required. Carter entered an Alford2 plea on December 19, 2025, to three counts under KRS 531.335. On February 24, 2026, the circuit court sentenced him in accordance with the plea agreement to an aggregate term of twelve years’ imprisonment. During sentencing, the circuit court stated that Carter was ineligible for probation and that it therefore lacked discretion to consider probation. The final judgment indicated that Carter was ineligible for probation based on KRS 532.080, KRS 439.3401, and/or KRS 533.060. On appeal, the Commonwealth acknowledges that none of the cited statutes applies to Carter’s sentence.3 The Commonwealth concedes “that the trial court incorrectly determined that Carter was ineligible for probation.” Commonwealth’s Brief at 2. It further agrees that the error requires remand so that the circuit court may consider probation. 2 An Alford plea permits a defendant to plead guilty without admitting the factual basis for the charge, while acknowledging that the Commonwealth possesses sufficient evidence to obtain a conviction. See North Carolina v. Alford, 400 U.S. 25, 37-38 (1970). For purposes of sentencing, an Alford plea is treated the same as any other guilty plea. Wilfong v. Commonwealth, 175 S.W.3d 84, 102 (Ky. App. 2004). 3 KRS 532.080(5) and (7) prohibit a defendant who is found to be a first-degree or second-degree persistent felony offender from being eligible for probation. KRS 533.060(2) makes a defendant who is convicted of a crime while on parole, probation, or other conditional discharge ineligible for probation on the new conviction. Neither provision applies to Carter. KRS 439.3401(4) makes violent offenders ineligible for probation and includes several crimes from KRS Chapter 531 under the violent offender definition. But violations of KRS 531.335 are not included among them.

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-3- Because Carter was not statutorily ineligible for probation, the circuit court erred by concluding that it lacked discretion to consider probation.4 KRS 533.010(2); Knox v. Commonwealth, 361 S.W.3d 891, 896 (Ky. 2012). Our Supreme Court has explained that when an illegal sentence results from a failure to follow the statutory parameters governing the availability of probation, “the remedy in this case is remand for resentencing.” Commonwealth v. Moreland, 681 S.W.3d 102, 109 (Ky. 2023). Accordingly, for the foregoing reasons, we VACATE Carter’s sentence and REMAND this matter to the Hardin Circuit Court for resentencing consistent with this Opinion. On remand, the Commonwealth remains free to oppose probation, and nothing in this Opinion should be construed as expressing any view as to whether probation should or should not be granted. That determination remains soundly within the circuit court’s discretion. ALL CONCUR. 4 The General Assembly subsequently amended KRS 531.335 to provide that “[a]ny person convicted under this section shall not be released on probation or parole until he or she has served at least eighty-five percent (85%) of the sentence imposed.” 2026 Ky. Acts ch. 109 § 1 (effective Jul. 15, 2026). That amendment was not in effect when Carter committed the offenses, entered his guilty plea, or was sentenced. A defendant is sentenced in accordance with the law in effect when the offense was committed unless the defendant specifically consents to application of a subsequent law that is “certainly” or “definitely” mitigating. Lawson v. Commonwealth, 53 S.W.3d 534, 550 (Ky. 2001). Carter plainly did not consent to application of the later amendment. Indeed, at sentencing he specifically questioned the circuit court’s conclusion that probation was unavailable. Moreover, the amended statute had not even become effective yet.

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-4- BRIEF FOR APPELLANT: Travis Bewley Assistant Public Advocate Louisville, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky

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