SETH MOUNTS V. COMMONWEALTH OF KENTUCKY — NOT TO BE PUBLISHED - OPINION OTHER

RENDERED: OCTOBER 16, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0479-MR SETH MOUNTS APPELLANT v. APPEAL FROM PIKE CIRCUIT COURT HONORABLE EDDY COLEMAN, JUDGE ACTION NO. 23-CR-00423 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING AND REMANDING ** ** ** ** ** BEFORE: CALDWELL, COMBS, AND EASTON, JUDGES. CALDWELL, JUDGE: Seth Mounts (“Mounts”) appeals as a matter of right from his convictions for first-degree burglary and fourth-degree assault under extreme emotional disturbance (“EED”). We affirm the convictions and sentences; however, we remand to the trial court for entry of an amended judgment not containing unnecessary language classifying Mounts as a violent offender.

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-2- BACKGROUND Mounts’ convictions arise from his admitted attack on Brandon Hunt (“Hunt”) at the Extra Mile gas station in Pike County during the early morning hours of August 9, 2023. Mounts and Hunt first encountered one another earlier that evening while Hunt was working the gas station’s third shift. Although the gas station remained open, customers could be served only through the drive-through window at the main building. The main building had a convenience store area, which was open to customers during daytime hours but was locked during the third shift. Extra Mile was equipped with surveillance cameras that recorded video footage on the night in question. At least two cameras inside the main building were focused on the area at the drive-through window. From either camera angle, the video would show an employee’s back if the employee faced the drive-through window, as would occur during interactions with customers. Additionally, at least one camera outside the building was focused on an area that included the drive-through window. As a result, the conduct for which Mounts was charged was depicted in video footage later shown to the jury as evidence during his trial. Apparently, however, no surveillance cameras recorded any audio of the events that transpired that evening.

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-3- Shortly after Hunt began his shift at 10 p.m., Mounts drove to the gas station’s drive-through window. Hunt was the only employee on duty and was stocking shelves when Mounts arrived. After Hunt came to the window, Mounts requested an item and gave Hunt his credit card for payment. Surveillance footage shows that Hunt retrieved an item, rang up the transaction, swiped the credit card at the cash register, and returned both the item and the card through the window. Mounts immediately told Hunt that the item was not what he had requested. The two then discussed what Mounts had intended to purchase. Hunt showed Mounts another item, but it also was not what Mounts wanted. Mounts searched under his car seat for an example of the item but could not locate one. A verbal disagreement soon arose over the misunderstanding. Hunt and Mounts would offer sharply differing accounts of the disagreement and its escalation during Mounts’ trial. It is undisputed that Mounts had become extremely upset by the end of the exchange. The video showed Hunt close and lock the drive-through window while Mounts was still speaking and visibly upset. After Hunt closed the window, the two gestured at one another, and Mounts slammed the window with his fist. Surveillance video showed that, later that evening, around 1 a.m., Mounts returned to the gas station and again approached the drive-through window, this time on foot. He wore a hood and stood sideways at the window,

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-4- making his face less visible than in earlier footage. When Hunt opened the window, Mounts immediately punched him in the face. As Hunt stumbled backward, Mounts climbed through the window into the store. The video showed Mounts get inside and regain his footing just as Hunt stopped staggering backward. The two quickly approached one another, and Mounts repeatedly punched Hunt until Hunt fell to the floor near the drive-through cash register. As Hunt fell, Mounts kicked him several times and then fled back through the drive-through window. Mounts was indicted for second-degree assault and first-degree burglary later in August 2023. In a pretrial motion, he asked the trial court to dismiss or limit the charges, alleging that convicting him of both burglary and assault would violate double jeopardy principles. The Commonwealth opposed the motion, and the trial court denied it. A two-day jury trial began on February 4, 2025. The Commonwealth argued that Mounts unlawfully entered the business to carry out an unprovoked attack and caused a serious injury to Hunt. The defense argued that Hunt incited Mounts by insulting and cursing at him and using a racial slur about his wife during their first interaction. The Commonwealth called Hunt as its only witness. Hunt described the attack, in part, by narrating portions of the surveillance videos as they were

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-5- played for the jury. He identified Mounts as the other person in the videos and stated that, at the time, he did not know Mounts or Mounts’ family. Hunt said Mounts asked for an e-cigarette item but immediately requested a refund after Hunt rang up the order. Because Hunt was not authorized to issue refunds, he told Mounts he could return the next day to speak with a manager. According to Hunt, Mounts then became aggressive without provocation. Hunt denied using any inappropriate language or engaging in any other antagonistic behavior during the exchange and stated that he discussed only the product Mounts wanted. Hunt testified that Mounts’ unprovoked aggression caused him to close the drive- through window, after which Mounts struck the window and drove away. Hunt confirmed that Mounts was the person who attacked him in the later surveillance videos. After Mounts fled, Hunt called 911 and reported that he had been robbed; Hunt testified he was taken to a local hospital by ambulance. Hunt stated that he sustained two shoulder fractures from the assault and underwent physical therapy because of the injury. He also stated that, at the time of trial, he still had limited range of motion in his shoulder and that his doctor had advised him he might never fully recover his prior range of motion. Photographs of Hunt were introduced into evidence, and he identified them as having been taken on the night following the attack. The photographs showed Hunt with his

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-6- arm in a sling and depicted a cut lip, bruising, and swelling to his face and upper torso around his shoulder. During cross-examination, defense counsel questioned Hunt’s claim that he had not antagonized Mounts. Counsel asked about a moment in the surveillance footage of the initial interaction that appeared to show Hunt extending a middle finger at Mounts after closing the window. Hunt testified that he did not recall seeing that on the video and continued to deny engaging in antagonistic behavior. Counsel also questioned Hunt about his medical treatment, the absence of documentation substantiating his injuries, and his claimed shoulder impairment. Hunt conceded that his new job required him to lift and move gas tanks. Mounts testified in his own defense and conceded he was the person shown in the surveillance videos. He expressed regret and remorse for his actions. Mounts testified that, after Hunt returned his credit card with the incorrect item, he told Hunt the item was not what he had requested. According to Mounts, Hunt immediately responded that he would not provide a refund. Mounts said he tried to clarify what he had requested and simply exchange the incorrect item for the one he intended to purchase. He stated that Hunt continued to refuse a refund and soon began insulting and cursing at him, first saying, “if you weren’t such a dumbass, you’d know what you wanted to buy.” Mounts said he was taken aback and became agitated. He testified that Hunt’s insults then escalated, including a series

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-7- of vulgar names and a homophobic slur. Finally, according to Mounts, Hunt said he knew who Mounts was and used a vulgar term referring to Mounts’ wife with a racial slur. Mounts testified that this occurred just before the point in the video where he lost his temper and struck the closed drive-through window. He then parked, got out of his car, walked to the gas station’s closed doors, and demanded that Hunt come outside to face him. According to Mounts, Hunt refused. Mounts said he then went home and tried to calm down and forget the interaction. But after seeing his wife and thinking of his children, he “snapped” and returned to the gas station. Mounts’ wife, Alexis Starks Mounts (“Starks”), also testified. Starks stated that her father was African American and that she considered herself and her children with Mounts to be biracial. She said she was certain Hunt knew who she was before the altercation because she and Hunt were distant cousins. Although Starks had no personal relationship with Hunt and was not close with his side of the family, she stated that they had encountered one another before at events such as family reunions. Starks testified that she had known Mounts since high school and had never seen him in a state similar to the one he displayed immediately after his initial altercation with Hunt.

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-8- During a conference on jury instructions, defense counsel requested a lesser-included instruction on third-degree burglary. After the conference, defense counsel submitted a written proposal for lesser-included instructions on third- degree burglary and first-degree criminal trespass. For the first-degree burglary charge, the trial court instructed only on that offense. On the second-degree assault charge, the trial court instructed on lesser-included offenses of second-degree assault under EED, fourth-degree assault, and fourth-degree assault under EED. In closing, defense counsel argued that the attack was understandable and asked the jury to find Mounts guilty of fourth-degree assault under EED and not guilty of first-degree burglary. The Commonwealth asked for guilty verdicts on the most serious offenses and argued that Mounts had fabricated the story about the insult and had caused a permanent injury to Hunt in a brutal, unprovoked attack. The jury found Mounts guilty of first-degree burglary and the lesser- included offense of fourth-degree assault under EED. During the penalty phase, the trial court instructed the jury on the penalty ranges for first-degree burglary, 10 to 20 years’ imprisonment, and fourth- degree assault under EED, up to 90 days in jail and a $250 fine. Almost immediately after deliberations began, the jury asked: “Everyone is in agreement that the presented penalty is too excessive for a first offense. Is there any way to

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-9- reduce the length of incarceration?” The trial court described its response and a later jury inquiry in a trial order: During deliberation the Jury asked the Court whether they can consider a sentence less than 10 years this being Defendant’s first offense, to which the Court responded, ‘no.’ The Jury continued their deliberation and next asked the Court, if they did not have unanimous agreement for penalty on Count 1 of the Verdict then who would make the decision: The Court responded that if they could not reach agreement on Count 1 of the indictment then the Court would declare a hung jury and impose sentencing itself. Shortly after returning to deliberation, the jury sent another inquiry: “None of us in good conscience can agree to the penalty. The duration of ten years is too much in our opinion. It is the decision of the jury for the judge to decide the penalty for the burglary charge. What do we write on the form?” Along with the inquiry, the jury returned the penalty instructions and the verdict form for fourth-degree assault under EED, fixing punishment at “$0.00 + 0 days.” The verdict form for first-degree burglary was left blank. The trial court then declared a hung jury and mistrial as to the penalty for first-degree burglary and dismissed the jury. The court scheduled sentencing for a later date. At the sentencing hearing, Mounts received the minimum sentence of ten years. The trial court’s judgment included the following:

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-10- Pursuant to KRS[1] 439.3401, the Court makes a finding that the building was occupied by a person other than the Defendant during the commission of burglary in the first degree and the Defendant shall be classified as a violent offender. Accordingly, the Defendant shall not be released on probation, shock probation, parole, conditional discharge, or other form of early release until he has served at least eighty-five percent (85%) of the sentence imposed. PURSUANT TO THE JURY VERDICT, IT IS ORDERED AND ADJUDGED that the Defendant is guilty of the offenses and sentenced for each count as follows: Count I: Burglary, 1st Degree 10 Years Count II: Assault Under Extreme Emotional Disturbance 0 Days The sentence for this indictment shall be ten (10) years to serve in the state penitentiary. This appeal followed. Additional background will be developed as necessary. STANDARD OF REVIEW, BRIEFING DEFICIENCIES, AND PRESERVATION Mounts raises five claims of error on direct appeal. First, he claims that convicting him of both burglary and assault violated statutory and constitutional double jeopardy. Second, he claims the trial court violated the constitutional ex post facto prohibition by designating him as a violent offender in 1 Kentucky Revised Statutes.

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-11- the judgment when his crime was not so designated when he committed it. In two related claims, he alleges reversible error based on inconsistent verdicts or verdict forms and on the trial court’s decision to sentence him for burglary after declaring a hung jury during penalty deliberations. Finally, Mounts claims he was denied effective assistance of counsel during trial. Mounts broadly asserts that each of his claims should be reviewed for abuse of discretion. Before we can examine the substance of Mounts’ claims, we must first address the Commonwealth’s threshold objections to his amended brief. Those objections affect both the scope of our review and the standard under which the claims will be considered. Mounts presents his claims in an Amended Appellant brief. The Commonwealth objected to Mounts’ initial Appellant brief and moved this Court to strike it and dismiss the appeal. The Commonwealth alleged that the brief violated the appellate rules in multiple respects: it contained no statement of the case, no preservation statements, and almost no citations to the appellate record. Mounts timely responded and moved to file an attached amended brief. In his response, Mounts asserted that a statement of the case had been prepared but inadvertently omitted from the filed version of his initial brief.

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-12- The Commonwealth filed a response opposing Mounts’ motion to file an amended brief and restated its request for dismissal of the appeal. In the alternative, the Commonwealth requested that we treat Mounts’ issues as unpreserved and reviewable only for palpable error, decline to search the record, and confine our review to the content of the parties’ briefs. The motion panel denied the motion to dismiss the appeal and granted the motion to file an amended appellant brief. Addressing the Commonwealth’s alternative request for limited review, the motion panel determined that those issues would be more appropriately raised in the Appellee brief and addressed by the panel considering the merits of the appeal. In its Appellee brief, the Commonwealth restates its requests that we strike Mounts’ Amended Appellant brief and dismiss the appeal or, in the alternative, confine our review as previously requested. As this matter is now ripe for our consideration, we must “address, yet again, an attorney’s failure to comply with rules of appellate procedure.” French v. French, 581 S.W.3d 45, 47 (Ky. App. 2019). A central deficiency alleged by the Commonwealth is that Mounts’ brief includes no preservation statement. Preservation should be addressed at the outset because “the fact and manner of preservation generally determines the

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-13- applicable standard of review.” Gasaway v. Commonwealth, 671 S.W.3d 298, 311 (Ky. 2023). RAP2 32(A)(4) provides that the argument section of an appellant’s opening brief “shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.” Mounts’ Amended Appellant brief contains no explicit preservation statement for any argument. “[O]ur Supreme Court has strictly mandated compliance with the preservation statement requirements in briefs since its inception under the prior Kentucky Rules of Civil Procedure.” Saner v. Cabinet for Health & Fam. Servs., 734 S.W.3d 778, 783 (Ky. App. 2026) (quoting W.I.S. v. K.M.B., 722 S.W.3d 569, 576 (Ky. App. 2025)). A review of the record and the Appellee brief shows that Mounts brought two of his five claims of error, the double jeopardy and ex post facto claims, to the trial court’s attention in some manner. Two other claims allege that inconsistent verdicts, inconsistent verdict forms, or the trial court’s decision to sentence Mounts after declaring a mistrial on burglary sentencing require reversal; we note no indication that Mounts raised those issues in the trial court. Nor does it appear that Mounts presented his ineffective assistance claim to the trial court in 2 Kentucky Rules of Appellate Procedure.

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-14- any manner. We decline review of that issue for this reason and for the additional reasons stated below. It is worth noting here that Mounts’ failure to include an explicit preservation statement is not merely technical. Aside from incidental references and citations to his pretrial motion concerning double jeopardy, Mounts’ brief fails to mention or reference that some issues he raises on appeal were brought to the attention of the trial court. The Commonwealth’s counterstatement of the case provides numerous citations to the video record, including occasions where Mounts raised some issues he now appeals before the trial court. Any assistance the Court received as to whether any specific issues were preserved in the record, or the location of any specific occurrence during the jury trial, was offered exclusively by the Commonwealth. And, despite providing information concerning Mounts’ preservation, the Commonwealth requests that we treat all issues as entirely unpreserved if we decline its request to strike the brief entirely. Mounts failed to file any Reply brief, despite the Commonwealth’s allegations that his brief was so deficient it merited dismissal of the appeal. The Commonwealth also alleges that the amended brief continues to contain inadequate record citations. RAP 32(A)(3) requires the statement of the case to include “ample references to the specific location in the record supporting each of the statements contained in the summary.” RAP 32(A)(4) likewise

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-15- requires the argument to include “ample references to the specific location in the record and citations of authority pertinent to each issue of law.” The Amended Appellant brief contains citations to the written record but only one general citation to the video record, citing the entire trial. The Commonwealth points out that Mounts includes arguments concerning events that occurred during trial without providing citations or even describing the events with enough particularity to identify them unambiguously. Even before filing its Appellee brief, in its response opposing Mounts’ motion to file an amended brief, the Commonwealth complained that it was forced to “scour the record to identify the relevant parts where Mounts has failed to do so. And with insufficient citations to the record in the opening brief, the Commonwealth is left to respond half blindly to what Mounts might believe supports his claims.” The Commonwealth’s complaint here is not frivolous. We recognize that Mounts discusses some specific trial events in his ineffective assistance argument, and the Commonwealth has provided citations to record events that appear consistent with those allegations. As noted, however, we decline to review the ineffective assistance issue because it is not properly before this Court. That does not render the absence of pinpoint citations to the video record insignificant. The deficiency extends to Mounts’ remaining arguments. There, as in his statement of the case, if the absence of pinpoint citations to the

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-16- video record is less glaring, it is only because Mounts largely omits any mention of trial events or evidence from his discussion altogether. A statement of the case should “consist[] of a summary of the facts and procedural events relevant and necessary to an understanding of the issues presented by the appeal[.]” RAP 32(A)(3). The statement of the case in Mounts’ Amended Appellant brief spans just over two pages. Yet, most of that section consists of recitations of general legal principles concerning illegal sentences and summaries of Mounts’ appellate arguments that follow. And the statement of the case identifies very few facts or procedural events relevant to the arguments it summarizes. Even viewing Mounts’ brief as a whole, one can gather only the most cursory factual and procedural background of the case, and much of the information that is provided is murky or incomplete. For example, the particular assault offense of which Mounts was found guilty is never explicitly identified anywhere in the text of his Amended Appellant brief. While the brief does mention that Mounts was found guilty of an assault under EED rather than second- degree assault, only the attached judgment expressly indicates that Mounts was found guilty of fourth-degree assault under EED. We leniently decline to strike Mounts’ brief. Additionally, we decline the Commonwealth’s request to strictly confine our review to the content of the parties’ briefs. The Court has reviewed the written and video record on appeal,

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-17- and our Opinion today includes references to procedural events and evidence in the record beyond those discussed in the appellate briefs. However, this Court’s resources are not unlimited. Guidance regarding the facts and procedural events relevant and necessary to understanding the issues on appeal has been provided overwhelmingly by the party opposing reversal. Under these circumstances, we cannot confidently provide the full scope of appropriate review without engaging in a practice that would tax the Court’s resources beyond our capacity. Consequently, because the Appellant failed to substantially comply with the appellate rules, we decline to overlook the brief’s deficiencies. RAP 10(B). Despite indications that some issues were at least partially preserved, we grant the Commonwealth’s alternative request and review each issue presented on appeal only for palpable error. As to Mounts’ brief’s other failures, we impose a fine on counsel by separate order issued this same date. See RAP 10(B)(4) (permitting “[i]mposition of fines on counsel for failing to comply with these rules of not more than $1,000”). I. The denial of Mounts’ double jeopardy motions was not palpable error. Mounts first claims that he could not properly be convicted of both burglary and assault. He renews on appeal the argument he presented to the trial court in his pretrial motion to dismiss. He alleges that double jeopardy prohibited

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-18- the Commonwealth from pursuing both second-degree assault and first-degree burglary, contending that “the prosecution of both burglary and assault from the same course of conduct of which proof one requires the elements of the other is unconstitutional and in violation of KRS 505.020.” Amended Appellant brief, p. 5. Where a double jeopardy violation has been established, it is palpable error requiring reversal even when unpreserved. Cardine v. Commonwealth, 283 S.W.3d 641, 651 (Ky. 2009). In support of his argument, Mounts cites Marshall v. Commonwealth, 625 S.W.2d 581 (Ky. 1981). In that case, our Supreme Court applied the double jeopardy bar to convictions for wanton endangerment and first-degree robbery. Id. The Commonwealth points out that distinction and argues that factually closer precedent from our Supreme Court, although unmentioned by Mounts, establishes that a defendant convicted of both burglary and assault arising from the same course of conduct cannot claim a double jeopardy violation. In support, the Commonwealth cites Commonwealth v. McCombs, 304 S.W.3d 676, 679 (Ky. 2009), and Grundy v. Commonwealth, 25 S.W.3d 76, 87 (Ky. 2000). In Grundy, the Court examined a double jeopardy challenge to convictions for burglary and second-degree assault. 25 S.W.3d at 87. The Court applied the Blockburger[3] “additional element” test to determine whether 3 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

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-19- constitutional double jeopardy principles barred convictions for both offenses. Id. The Court noted that assault required proof of a culpable mental state regarding causation of a physical injury. Id. By contrast, for first-degree burglary, KRS 501.060 required only a causal connection between the defendant’s conduct and the physical injury to a nonparticipant. 25 S.W.3d at 87 n.36. Because first-degree burglary requires no culpable mental state to prove the physical injury aggravator, the Court reasoned that assault’s culpable mental state requirement was an “additional element” under Blockburger. Id. at 87. In McCombs, the Court upheld convictions for fourth-degree assault and first-degree burglary against a double jeopardy challenge. 304 S.W.3d at 680. The Court explained that “[t]he physical injury element of fourth-degree assault and the physical injury element of first-degree burglary are not one and the same.” Id. at 679. First-degree burglary requires only proof that the defendant caused a physical injury, which “could be accidental.” Id. Fourth-degree assault, however, required “a specific finding of an intentional, wanton, or reckless mental state.” Id. Because the physical injury element of first-degree burglary required no such finding, the convictions did not violate double jeopardy principles. Id. The Commonwealth argues that the convictions in McCombs—for fourth-degree assault and first-degree burglary—are the same offenses of which Mounts was convicted. 304 S.W.3d at 680. But there is an obvious factual

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-20- distinction: Mounts was convicted not of ordinary fourth-degree assault under KRS 508.030, but of fourth-degree assault under EED under KRS 508.040. The instructions required the jury to find that, when he committed the fourth-degree assault, Mounts was in a “temporary state of mind so enraged, inflamed, or disturbed as to overcome [his] judgment, and to cause [him] to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes.” The instruction closely tracks precedent defining EED. See Spears v. Commonwealth, 30 S.W.3d 152, 155 (Ky. 2000) (quoting McClellan v. Commonwealth, 715 S.W.2d 464, 468–69 (Ky. 1986)). KRS 508.040(1) provides, in relevant part, that “[i]n any prosecution under . . . KRS 508.030 in which intentionally causing physical injury . . . is an element of the offense, the defendant may establish in mitigation that he acted under the influence of extreme emotional disturbance, as defined in subsection (1)(a) of KRS 507.020.” KRS 508.040(1). The statutory definition of EED referenced in KRS 508.040(1) is in a subsection of the murder statute and states: a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a

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-21- prosecution for or preclude a conviction of manslaughter in the first degree or any other crime[.] KRS 507.020(1)(a). To establish an EED defense, a criminal defendant must provide sufficient proof of a sudden and uninterrupted triggering event that prompts an explosion of violence. Foster v. Commonwealth, 827 S.W.2d 670, 678 (Ky. 1991). The EED must have a reasonable explanation or excuse, judged from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. Spears, 30 S.W.3d at 155. The language defining EED might suggest that the mens rea required for other types of fourth-degree assault differs from the mens rea required for fourth-degree assault under EED. Under a lay understanding, a person who acted from the “impelling force of the extreme emotional disturbance rather than from evil or malicious purposes” might seem categorically different from a person who acted with a culpable mental state. Spears, 30 S.W.3d at 155. Likewise, a layperson might assume that facts showing a defendant’s judgment was so overcome by emotion that he acted uncontrollably would be inconsistent with facts showing that the same defendant acted with intent. However, if fourth-degree assault under EED does not require a culpable mental state and instead requires only a causal connection to a physical injury, then the “additional element” McCombs identified for fourth-degree assault

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-22- would not be present. 304 S.W.3d at 680. In that circumstance, McCombs would not support the Commonwealth’s position that convictions for first-degree burglary and fourth-degree assault under EED arising from the same conduct survive scrutiny under the Blockburger test. Furthermore, apart from the Blockburger test, KRS 505.020(1)(b) prohibits prosecution for multiple offenses arising from a single course of conduct when “[i]nconsistent findings of fact are required to establish the commission of the offenses[.]” Id. Accordingly, a double jeopardy violation occurred if establishing first-degree burglary required a factual finding inconsistent with the finding required to establish fourth-degree assault under EED. Although first-degree burglary requires no culpable mens rea to establish the aggravating factor of causing an injury, it shares elements with lesser offenses that do require a specific mens rea. One culpable mens rea required for first-degree burglary is also shared by third-degree burglary and second-degree criminal trespass: the defendant must knowingly enter or unlawfully remain in the building. Hedges v. Commonwealth, 937 S.W.2d 703, 706 (Ky. 1996). If a defendant has a license to enter or remain in a building, and no reason to know that permission has been revoked, neither burglary nor criminal trespass is established. Id.

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-23- Additionally, all degrees of burglary share a culpable mens rea requirement: the intent to commit a crime, whether formed before the unlawful entry or while unlawfully remaining inside the building or dwelling. Martin v. Commonwealth, 571 S.W.2d 613, 614–15 (Ky. 1978). This mens rea distinguishes burglary from criminal trespass; without intent to commit a crime, a knowing unlawful entry into, or unlawful remaining in, a building supports only a charge of criminal trespass. Id. “Evidence of criminal intent is the key to proper application of the burglary statutes.” Commonwealth v. Partee, 122 S.W.3d 572 (Ky. 2003). With this framework in mind, we turn to whether “[i]nconsistent findings of fact [were] required to establish” the requisite mens rea for fourth- degree assault under EED and the requisite mens rea for first-degree burglary. KRS 505.020(1)(b). There can be no doubt the offenses arose from a single course of conduct. Furthermore, all steps of the burglary occurred entirely within a time period during which the jury also determined that Mounts was acting under the influence of an extreme emotional disturbance. With video footage of the entire incident in evidence, there appears to be no dispute that the only noteworthy actions Mounts took, aside from entry and flight, were punching and kicking Hunt. There appears to have been no allegation or indication that Mounts might have formed the intent to commit some crime other than assaulting Hunt

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-24- prior to his entry or while he remained in the building. We note no allegation or indication that Mounts, for example, approached or examined the store’s inventory in a way that might suggest he intended to steal the item he originally intended to purchase. Rather, Mounts struck Hunt before beginning his entry through the drive-through window, and the video shows that his entry was undertaken in clear pursuit of continuing the attack as Hunt staggered backward out of reach. During the entire period Mounts was unlawfully inside the building, his actions consisted of punching and kicking Hunt and then immediately fleeing back through the drive-through window. In the surveillance footage viewed by the jury, the initial blow and Mounts’ completed flight from the building all occur within roughly thirty seconds. Accordingly, if the jury’s EED finding as to the assault is inconsistent with a necessary mens rea finding for burglary, then Mounts’ convictions for both offenses violated KRS 505.020(1)(b). However, a review of relevant Kentucky law reveals little support for this proposition. Commentary to KRS 508.040 states that the statute “affects only intentionally-caused assaults and then only to the extent of reducing the sanctions.” KRS 508.040 cmt. (1974). Although not in the double jeopardy context, this Court has stated that EED does not “alter the intentional nature” of assault. Gossage v. Roberts, 904 S.W.2d 246, 250 (Ky. App. 1995). That conclusion is consistent with KRS 508.040, which refers to the same “specific intent” to “caus[e] physical

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-25- injury” in the assault statutes. Id. Our Supreme Court has also characterized EED as an additional element of an assault offense, not as a negation of mens rea: “[o]n any retrial, the instruction on Assault under EED will include the elements of Second-Degree Assault as previously given by the trial court and the additional element of ‘That in so doing, he was acting under the influence of an extreme emotional disturbance.’” Nichols v. Commonwealth, 142 S.W.3d 683, 690 n.13 (Ky. 2004). Given this precedent, we cannot say that a conviction under KRS 508.040 negates the intent element for fourth-degree assault under KRS 508.030. Consequently, we cannot say that double jeopardy analysis under the Blockburger test, or under KRS 505.020(1)(b), requires a result different from McCombs, 304 S.W.3d at 680. Mounts continues to argue that double jeopardy barred the Commonwealth from pursuing both second-degree assault and first-degree burglary. But his assault conviction was for fourth-degree assault under EED. As the Commonwealth points out, even if the dual convictions violated double jeopardy, Mounts’ remedy would be “to vacate the conviction for the lesser offense.” Kiper v. Commonwealth, 399 S.W.3d 736, 746 (Ky. 2012) (quoting Lloyd v. Commonwealth, 324 S.W.3d 384, 391 n.26 (Ky. 2010)). Because the

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-26- judgment reflected the jury’s penalty of zero days for the fourth-degree assault conviction, vacating that conviction would not affect his sentence. II. The trial court should not have stepped into the administrative role of the DOC in interpreting KRS 439.3401. We next address Mounts’ claim that, because he committed the relevant offenses before the effective date of the amended violent offender statute, the trial court erred by designating him as a violent offender in the judgment. If the Department of Corrections (“DOC”) classifies Mounts as a violent offender, he must serve 85% of his sentence before first becoming eligible for parole. KRS 439.3401(4). If he is not classified as a violent offender, then, as a person convicted of a Class B felony, he must serve only 20% of his sentence before first becoming eligible for parole. 501 KAR4 1:030. After Mounts committed the offenses, the legislature enacted House Bill 5. Among its provisions, the bill amended KRS 439.3401, the violent- offender statute, in several respects. 2024 Ky. Acts ch. 174 § 32 (eff. Jul. 15, 2024). On appeal, Mounts asserts in his brief that House Bill 5 “dictated that violent offenders serve at least 85 percent of their sentence before being eligible for probation/parole, and that a person convicted of a violent offense only receive credit on the sentence for time spent in custody prior to sentencing.” Much the 4 Kentucky Administrative Regulations.

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-27- same, however, could have been said about the version of KRS 439.3401 in effect before the July 2024 amendments. That is not to say, however, that the amendments to KRS 439.3401 have no significance to Mounts’ case. The most significant amendment here is the addition of KRS 439.3401(1)(b)9., which sets forth a new qualifier that, together with a first-degree burglary conviction, brings certain defendants within the statute’s scope. This addition extends the violent offender designation to any person convicted of first-degree burglary “if a person other than a participant in the crime was present in the building during the commission of the offense[.]” Id. Another relevant amendment, reflected in KRS 439.3401(2)(b), requires the trial court to designate in its judgment if “[a] person other than a participant in the crime was present in the building during the commission of burglary in the first degree.” Id. Mounts argues that the trial court designated him as a violent offender in violation of the constitutional prohibition against ex post facto laws. The Commonwealth argues that Mounts cannot raise a constitutional challenge because he failed to notify the Attorney General, that his parole eligibility claim is premature in this criminal case, and that applying the amended violent offender statute to him is not an ex post facto violation. The Commonwealth also contends

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-28- that, during the penalty phase, defense counsel asked to tell the jury that Mounts’ parole eligibility would be 85%. The Commonwealth filed a motion in limine shortly before trial requesting an order prohibiting Mounts from mentioning probation eligibility before the penalty phase. During the original penalty phase, the Commonwealth presented no evidence other than Hunt’s victim impact testimony. After the Commonwealth rested, defense counsel objected that no Probation and Parole witness had testified about parole eligibility. When the Commonwealth asked defense counsel what eligibility period he would tell the jury, counsel answered that he thought it was 85%. The Commonwealth stipulated to that figure, and the trial court told the jury that the parties had stipulated Mounts would not be parole eligible until he served 85% of his sentence. At the sentencing hearing that followed the mistrial declared after the jury failed to recommend a sentence for burglary, defense counsel requested an alternative sentence and voiced his anticipation that the Commonwealth would object by asserting that Mounts had been convicted of a violent offense. Counsel raised the issue of the amendment to KRS 439.3401 and pointed out that Mounts’ crime would not have qualified for the violent offender designation when it occurred. He argued that the Kentucky Supreme Court had not yet ruled on the retroactive applicability of the recently amended violent offender statute and urged

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-29- the trial court to consider that designating Mounts as a violent offender would likely violate the ex post facto prohibition. The Commonwealth asserts that this was the first time Mounts objected to a violent offender designation or raised the applicability of the amended version of KRS 439.3401. In its judgment, the trial court included a factual finding that during the commission of the first-degree burglary, “the building was occupied by a person other than the Defendant[.]” The judgment went on to conclude that Mounts must accordingly be classified as a violent offender and ineligible for “probation, shock probation, parole, conditional discharge, or other form of early release until he has served at least eighty-five percent (85%) of the sentence imposed.” At the time Mounts committed the offenses, a defendant convicted of first-degree burglary could potentially be designated a violent offender and required to serve a greater portion of the sentence before becoming parole eligible, if particular statutory qualifications were met. Certain assault offenses committed during the burglary were among those qualifications, now set forth in KRS 439.3401(1)(b)7.5 That subsection provides that a defendant convicted of first- degree burglary receives the violent offender designation when the burglary was “accompanied by the commission or attempted commission of an assault described 5 Formerly KRS 439.3401(1)(l).

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-30- in KRS 508.010 [first-degree assault], 508.020 [second-degree assault], 508.032 [assault of family member or member of an unmarried couple], or 508.060 [first- degree wanton endangerment].” Mounts’ conviction for fourth-degree assault under EED would not qualify as an aggravator under this subsection. Additionally, at the time the offense was committed, KRS 439.3401(1)(c) provided that a violent offender included a person convicted of any “Class B felony involving the death of the victim or serious physical injury to a victim[.]”6 First-degree burglary is a Class B felony. KRS 511.020(2). KRS 508.020(1)(a) provides that second-degree assault requires proof that a person caused a “serious physical injury to another person[.]” Id. (emphasis added). That requirement differs from fourth-degree assault, which requires proof that a defendant caused only a “physical injury to another person[.]” KRS 508.030(1)(a). Accordingly, by acquitting Mounts of second-degree assault and finding him guilty of fourth-degree assault under EED, the jury determined that the burglary had not involved a serious physical injury. Consequently, Mounts could not be designated a violent offender under this provision of the version of KRS 439.3401 in effect when he committed the offenses. 6 As a result of House Bill 5, this subsection was amended and moved to KRS 439.3401(1)(b)1. to include within the violent offender designation a person who was convicted of any “felony involving the death of the victim or serious physical injury to a victim[.]” Id. Since first-degree burglary is a Class B felony, the amendment of the subsection to include felonies in lesser classes has no potential ramifications to Mounts’ conviction.

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-31- While Mounts does not correctly identify or describe the relevant amendments to KRS 439.3401, he does correctly point out that his designation as a violent offender turns on amendments that were not in effect when he committed the offense. Only by application of KRS 439.3401(1)(b)9., a subsection not adopted by the legislature at the time of commission of the offense could Mounts’ first-degree burglary conviction result in his designation as a violent offender under the statute. The Commonwealth would contend that the judgment here is a demonstration of judicial restraint; its brief argues that the trial court “correctly declined to decide Mounts’s challenge to House Bill 5’s application to him.” We will examine the judgment to determine if the trial court rendered any decision in the judgment beyond what the trial court was statutorily obligated to decide. A factual determination previously set forth in KRS 439.3401(1), now located at KRS 439.3401(2)(a), requires a court to designate in the final judgment whether the victim suffered death or serious physical injury. Id. The amended KRS 439.3401 expands the factual determinations required of the trial court: “[t]he court shall designate in its judgment if: [t]he victim suffered death or serious physical injury; and [a] person other than a participant in the crime was present in the building during the commission of burglary in the first degree.”

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-32- KRS 439.3401(2)(a)–(b) (emphasis added). Otherwise, the trial court’s statutory role is unchanged. Mounts alleges that the trial court erred by including in the judgment the “finding that the building was occupied by a person other than the Defendant during the commission of burglary in the first degree.” However, given the jury’s verdict and the mandate of KRS 439.3401(2)(b), we discern no error in this finding. Although no equivalent provision appeared in the prior version of KRS 439.3401, the version of the statute in effect at the time of judgment plainly directed the trial court to make this designation for any defendant convicted of first-degree burglary. KRS 439.3401(2)(b). The statute does not expressly recognize a contingency relieving the trial court of that duty based on the date the offense was committed. The trial court was required to include this designation. The judgment included no finding regarding injury to the victim under KRS 439.3401(2)(a). This omission was appropriate; the designation is required only “if the victim suffered . . . serious physical injury[.]” Id. (emphasis added). The absence of such a designation correctly reflects the jury’s determination: under the assault instructions, the jury’s acquittal of Mounts on second-degree assault and its finding of guilt on fourth-degree assault under EED called for a determination that Hunt had not suffered a serious physical injury.

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-33- The trial court correctly made the factual determination required by KRS 439.3401 (regarding whether another person was present in the building). However, in the portion of the judgment immediately following those findings, the trial court included a legal conclusion that Mounts was a violent offender under the recently amended statute. Despite the Commonwealth’s argument that the trial court correctly declined to decide the issue of application of KRS 439.3401, as amended after the commission of the offense, the trial court exceeded its judicial role under the statute and encroached upon the authority the statute assigns to administrative officials outside the judiciary. As an administrative agency, the DOC is tasked with interpreting the statutes and regulations it implements, including KRS 439.3401. Pate v. Department of Corrections, 466 S.W.3d 480, 484 (Ky. 2015), overruled on other grounds by Lee v. Kentucky Department of Corrections, 610 S.W.3d 254 (Ky. 2020). Furthermore, the calculation of an inmate’s earliest parole eligibility is an administrative determination for the DOC, not a judicial determination. Hoskins v. Commonwealth, 158 S.W.3d 214, 216 (Ky. App. 2005). “The circuit court’s only role is to make the factual determination set forth in KRS 439.3401(1).” Id. at 217 (emphasis added). Here, however, the trial court declared that Mounts: shall be classified as a violent offender. Accordingly, [Mounts] shall not be released on probation, shock

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-34- probation, parole, conditional discharge, or other form of early release until he has served at least eighty-five percent (85%) of the sentence imposed. Judgment, pp. 1–2 (emphasis added). This portion of the trial court’s judgment might fairly be read as a directive to the DOC on the interpretation and proper application of the amended KRS 439.3401. The court should have refrained from any determination as to how the DOC should process and classify Mounts prior to any indication the DOC had made its own determination. The initial interpretation of the amended KRS 439.3401, insofar as it concerns the application of any particular revision to an inmate convicted of offenses committed before the amendment, is not a decision appropriately made by the courts in the underlying criminal case; that determination falls within the DOC’s role. Hoskins, 158 S.W.3d at 216. Although the parties argued the issue, the DOC was not a party to the underlying criminal case. Furthermore, no evidence of record indicates how the DOC intended to classify an inmate in the same position as Mounts. The trial court therefore should have declined to issue any ruling that amounted to an instruction to the DOC on the proper classification of Mounts as an inmate or the proper interpretation of the amended violent offender statute. Id.

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-35- Having determined that the trial court erred by including this legal conclusion, we next consider what relief, if any, Mounts is entitled to receive on direct appeal from his conviction. Our Supreme Court has reversed and remanded for resentencing when the prosecution presented erroneous evidence regarding a defendant’s parole eligibility during the original sentencing phase. Robinson v. Commonwealth, 181 S.W.3d 30, 38 (Ky. 2005). The Court has done the same even where it was the defendant’s own counsel first who presented erroneous sentencing information to a jury during closing argument.7 Here, however, the jury was unable to render a penalty verdict, and Mounts subsequently received the minimum sentence prescribed by statute that the jury could have considered. Resentencing could provide Mounts with no tangible relief; it is therefore unnecessary to determine whether the parole eligibility information presented to the jury was incorrect. The relief which Mounts does request of this Court is for reversal of his entire conviction or, alternatively, to order that he be considered parole eligible after serving 20% of his sentence. Mounts provides no authority for the erroneous inclusion of a violent offender designation in a judgment meriting reversal of an entire sentence. And our determination that the trial court should not have 7 Floyd v. Commonwealth, No. 2007-SC-000291-MR, 2009 WL 736002 (Ky. Mar. 19, 2009) (unpublished).

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-36- included a legal conclusion regarding the applicability of the amended KRS 439.3401 should not be read as an indication that we have determined the inapplicability of the amended statute. For largely the same reasons that the trial court should have declined to make that determination, we refrain from doing so today. We take no position on the question of the applicability of the amended violent offender statute to Mounts as we have determined the question is not properly before this Court. The record here contains no indication as to whether the DOC has made a determination of how Mounts should be classified with regard to parole eligibility.8 When a criminal offender challenges parole classification, the offender must exhaust all administrative remedies available within the institution, then bring a separate declaratory action against the DOC in the Franklin Circuit Court. Hoskins, 158 S.W.3d at 217; Mason v. Commonwealth, 331 S.W.3d 610, 629 (Ky. 2011).9 If Mounts wishes to challenge the determination of the DOC regarding any classification the agency makes with regards to his classification for 8 At the time of writing this Opinion, 501 KAR 1:030 is being amended to address the amendments to KRS 439.3401. 9 See also Bass v. Commonwealth, No. 2025-CA-0615-MR, 2026 WL 119498, at *2 (Ky. App. Jan. 16, 2026) (unpublished); Commonwealth v. Johnson, No. 2025-CA-0229-MR, 2026 WL 1721231, at *2 (Ky. App. Jun. 12, 2026) (unpublished).

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-37- parole eligibility, he must pursue it through this avenue. However, there is no indication from the record as to how the DOC has classified Mounts. Accordingly, although we affirm the convictions and sentence, we remand to the trial court for removal from the judgment of the language stating that Mounts “shall be classified as a violent offender” and that he “shall not be released on probation, shock probation, parole, conditional discharge, or other form of early release until he has served at least eighty-five percent (85%) of the sentence imposed.” The court shall enter an amended judgment without this unnecessary classification. III. Mounts’ claims of inconsistent verdicts do not entitle him to relief, and the court did not overreach by sentencing Mounts. Mounts’ third and fifth claims both concern the effect of the jury’s inability to agree on a penalty for first-degree burglary. He frames one claim as involving inconsistent verdicts and the other as involving inconsistent verdict forms, but both arguments ultimately challenge the trial court’s decision to impose sentence after the jury failed to recommend one. Mounts characterizes the trial court’s decision to affix a sentence itself, following the mistrial declaration, as judicial overreach. We will address these claims together. The arguments Mounts offers in support of these claims are scattershot and unformed. While Mounts states generalized claims of inconsistent verdicts or verdict forms, he offers very little detail as to how these legal theories

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-38- support reversal of his particular convictions or how the case law he cites might be applied under the facts of his case. In fact, it is far from clear which verdicts Mounts specifically alleges are in disharmony with one another. This is because any discussion of inconsistent verdicts in those sections of the brief occurs mostly in passing. Mounts’ arguments on these issues actually focus on allegations that that reversible error occurred as result of the trial court’s declaration of a hung jury and mistrial following the penalty deliberations for the first-degree burglary conviction, or as a result of the trial court’s contemporaneous decision to decide the sentence itself, without a jury recommendation on that matter. In support of his inconsistent verdicts and inconsistent verdict forms theories, Mounts argues that the sentence imposed by the trial court conflicts with the jury’s refusal to recommend a sentence for first-degree burglary. He contends that this “discrepancy between the jury’s intent and the Judge’s sentence” violated his due process rights. Elsewhere, Mounts argues that the jury’s failure to sign a penalty verdict form for first-degree burglary is inconsistent with the guilty verdict form it returned on that offense. The Commonwealth argues that no inconsistent verdicts occurred and that the trial court properly followed required procedure after the jury could not agree on a penalty. It further contends that Mounts waived any objection when he

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-39- explicitly agreed to the declaration of a mistrial and the trial court’s decision to impose sentence itself. Within his argument, Mounts broadly alleges that the trial court improperly declared a hung jury without a clear basis. But elsewhere, he acknowledges that the jury refused to render a penalty verdict because it considered the permissible range excessive. Mounts never makes any specific allegation that the jury would have been able to reach a unanimous penalty verdict for first-degree burglary under the instructions, had the trial court not declared a hung jury. Neither does he identify any way in which he might have received a lesser sentence, had the jury been able to render a penalty verdict under the instruction. Instead, Mounts implies that the trial court should have permitted the jury to consider a lesser sentence, or that he was entitled to an acquittal on the guilty verdict once the jury indicated that it considered the penalty range excessive. But no authority cited by Mounts provides any support for this. In support of his claim that reversible error occurred, Mounts cites Commonwealth v. Mitchell, 943 S.W.2d 625 (Ky. 1997). However, Mitchell addressed whether a judge’s instruction to a deadlocked jury that subsequently reached a verdict had been an attempt to coerce the jury. Id. at 626. Mounts fails to offer any explanation as to how Mitchell would apply to the declaration of a hung jury and mistrial here, nor does he voice any specific criticism of the trial

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-40- court’s responses to the jury’s inquiries about being deadlocked as to a penalty verdict. “A hung jury is a classic example of a manifest necessity requiring a mistrial.” Meyer v. Commonwealth, 393 S.W.3d 46, 50 (Ky. App. 2013) (quoting Cardine, 283 S.W.3d at 648). Mounts points to no authority in support of his generalized allegation that the trial judge’s imposition of sentence violated his due process rights. KRS 532.055(4) provides that, “[i]n the event that the jury is unable to agree as to the sentence or any portion thereof and so reports to the judge, the judge shall impose the sentence within the range provided elsewhere by law.” Id. (emphasis added). And our Supreme Court has determined that KRS 532.055(4) “does not violate the due process clause of the Fourteenth Amendment of the U.S. Constitution by authorizing the trial judge to impose a sentence in excess of the minimum sentence prescribed by statute if the jury fails to agree on a sentence.” Commonwealth v. Hubbard, 777 S.W.2d 882, 884 (Ky. 1989) (emphasis added). Here, the trial judge imposed the minimum sentence prescribed by statute that the jury could have considered for the offense of first-degree burglary. We cannot say that doing so infringed upon Mounts’ due process rights. Furthermore, Kentucky courts no longer rigidly prohibit inconsistent verdicts; on appeal, the focus is instead on the sufficiency of the evidence

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-41- supporting each verdict. Commonwealth v. Harrell, 3 S.W.3d 349, 351 (Ky. 1999). Mounts makes no allegation that there was insufficient evidence to support any particular verdict that was rendered. We cannot say that any palpable error occurred regarding inconsistent verdicts. Having concluded that Mounts is not entitled to relief on his claims concerning the jury’s failure to return a penalty verdict and the trial court’s sentencing authority, we turn finally to his ineffective assistance claim. IV. Mounts’ ineffective assistance claims are not ripe for review. On direct appeal, Mounts broadly contends that he received ineffective assistance of counsel during trial. He alleges that multiple actions and omissions by trial counsel infringed upon his constitutional right to effective assistance of counsel. Mounts claims that trial counsel was ineffective for failing to object to procedural errors, juror misconduct, and judicial bias. However, the central focus of his argument concerns an allegation of juror misconduct that he contends was evident during voir dire. The Commonwealth argues that Mounts provided so few details about the alleged misconduct that it is unable to craft a responsive argument on the merits. The Commonwealth further argues that Mounts offers no substantive argument as to the other ineffective assistance allegations and that those claims should therefore be rejected as insufficiently raised.

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-42- As alluded to previously, the Commonwealth is correct that Mounts provides no citation to the record supporting either the preservation or the merits of his juror misconduct allegation. The same is true of his remaining ineffective assistance allegations. Mounts’ brief lacks any indication, even implicitly, that any ineffective assistance claim was presented to the trial court. Our own review of the record has uncovered no indication otherwise. Thus, “the trial court held no hearing and made no ruling concerning counsel’s actual performance at trial.” Guerin v. Commonwealth, 658 S.W.3d 481, 483 (Ky. App. 2022). As a general rule, a claim of ineffective assistance of counsel will not be reviewed on direct appeal from the trial court’s judgment because there is usually no record or trial court ruling on which such a claim can be properly considered. Appellate courts review only claims of error which have been presented to trial courts. Moreover, as it is unethical for counsel to assert his or her own ineffectiveness for a variety of reasons, and due to the brief time allowed for making post trial motions, claims of ineffective assistance of counsel are best suited to collateral attack proceedings, after the direct appeal is over, and in the trial court where a proper record can be made. This is not to say, however, that a claim of ineffective assistance of counsel is precluded from review on direct appeal, provided there is a trial record, or an evidentiary hearing is held on motion for a new trial, and the trial court rules on the issue. Humphrey v. Commonwealth, 962 S.W.2d 870, 872–73 (Ky. 1998) (citations omitted).

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-43- Mounts’ appellate counsel did not represent him at trial and we imply no breach of ethics occurred by raising an ineffective assistance claim at this juncture. Nonetheless, the general rule against such claims on direct appeal is no less applicable here. The issue has never been raised before the trial court and there is no record upon which to base meaningful review of the issue. The proper avenue for pursuit of such a claim is through a RCr 11.42 motion before the trial court, following the conclusion of Mounts’ direct appeal. Humphrey, 962 S.W.2d at 872–73. We decline to consider Mounts’ ineffective assistance claims on direct appeal. Our ruling, however, should not be interpreted to preclude later consideration of those claims in a proper collateral attack proceeding. Hennemeyer v. Commonwealth, 580 S.W.2d 211 (Ky. 1979). CONCLUSION For the foregoing reasons, we affirm the convictions and sentence of the Pike Circuit Court. However, we remand the matter to the trial court for entry of an amended judgment which does not contain the unnecessary language stating that Mounts “shall be classified as a violent offender” and that he “shall not be released on probation, shock probation, parole, conditional discharge, or other form of early release until he has served at least eighty-five percent (85%) of the sentence imposed.”

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-44- EASTON, JUDGE, CONCURS. COMBS, JUDGE, DISSENTS IN PART AND FILES SEPARATE OPINION. COMBS, JUDGE, DISSENTING IN PART: I concur with the reasoning of the majority Opinion in this case with one exception about which I now file this short dissent. Counsel for Mounts correctly argues that the crime would not have been characterized or eligible for violent offender designation at the time it occurred. He raised this argument at the sentencing hearing following mistrial, requesting an alternative sentence at that point. The Commonwealth objected by arguing that this was “the first time” that Mounts has raised that objection or noted the applicability of the amendments to KRS 439.3401. Regardless of the timing of the argument as to the amended version of the statute, I am persuaded that it was error for the court not to consider and to apply the version of the statute in existence (i.e., the unamended statute) at the time the crime was committed. In short, and without recapitulating the facts as amply set forth in the majority Opinion, Mounts would not have been classified as a statutory violent offender under the statute then in effect. Additionally, the jury specifically declined to convict him of having committed “serious physical injury” in the course of committing a burglary when it acquitted him of second-degree assault and instead found him guilty of fourth-degree assault under EED.

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-45- At issue is the critical fact of eligibility for parole: whether he would have to serve a minimum of eighty-five percent of his sentence before becoming eligible for parole. Noteworthy also is the fact that the jury objected to the length of the sentence imposed while nonetheless finding him guilty to serve some amount of time in incarceration. It is -- and long has been -- black-letter law that a defendant be sentenced in accordance with the law governing an offense at the time it was committed. Lawson v. Commonwealth, 53 S.W.3d 534, 550 (Ky. 2001). While I concur with the majority Opinion that the circuit erred in declaring parole eligibility in derogation of the role of the Department of Corrections, I believe that the governance of the statute at issue had to be correctly determined by the trial court initially before delegating the matter to DOC. And that issue clearly is: that the statute in effect at the time of commission of the crime should govern. Otherwise, we are squarely faced with the constitutional prohibition of applying an ex post facto law. BRIEF FOR APPELLANT: David L. Drake Independence, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Shawn D. Chapman Assistant Solicitor General Frankfort, Kentucky

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