K.C. Myers v. Jim Baker

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2023 VT 7

No. 22-AP-162

K.C. Myers Supreme Court

On Appeal from
v. Superior Court, Washington Unit,
Civil Division

Jim Baker et al. October Term, 2022

Robert A. Mello, J.

Matthew F. Valerio, Defender General, and Annie Manhardt, Prisoners’ Rights Office,
Montpelier, for Plaintiff-Appellant.

Susanne R. Young, Attorney General, Montpelier, and Patrick T. Gaudet, Assistant Attorney
General, Waterbury, for Defendant-Appellee.

PRESENT: Eaton, Carroll, Cohen and Waples, JJ., and Johnson, J. (Ret.), Specially Assigned

¶ 1. WAPLES, J. In this interlocutory appeal, petitioner K.C. Myers challenges the

trial court’s determination that his exclusion from the earned-time program for a disqualifying

offense did not violate the Ex Post Facto Clause of the U.S. Constitution. The central question in

this appeal is whether the effective date of the earned-time program or the enactment date of the

statute mandating its creation controls for the purposes of an ex-post-facto analysis. Because we

agree with the trial court that the program’s effective date controls, and, therefore, petitioner’s

disqualification from the program did not offend the U.S. Constitution’s prohibition on ex-post-

facto laws, we affirm.
¶ 2. The following facts are undisputed. On June 10, 2019, the Governor signed into

law a bill amending 28 V.S.A. § 818 and requiring the Vermont Department of Corrections (DOC)

to promulgate regulations establishing an earned-time program no later than July 1, 2020. This

original earned-time bill made findings of purpose and enumerated the specific parameters that the

Legislature expected to be implemented by the DOC regulations, including the amount of earned

time and the circumstances under which an offender would earn time. See 2019, No. 56, §§ 1-9.

The program contemplated by this bill was not established, however, as the DOC did not

promulgate the regulations required to make the program effective by the July 1 deadline. The

Legislature enacted another earned-time bill, see 2019, No. 148 (Adj. Sess.), § 14, which extended

the deadline for the DOC to promulgate regulations to September 1, 2020, and explicitly made the

program effective on January 1, 2021. This new bill also increased the amount of earned-time

credit received by offenders meeting the criteria from five days per month to seven days per month

if the offender was not adjudicated of a major disciplinary violation or reincarcerated from the

community for a violation of release conditions.1 See id.

¶ 3. Petitioner was accused of committing burglary on August 17, 2019, almost two

months after the original earned-time bill, 2019, No. 56, §§ 1-9, was signed into law. He was

arraigned in March 2020 and pled no contest on May 12, 2020, receiving a two-to-five-year prison

sentence. Petitioner was serving a suspended sentence for lewd and lascivious conduct with a

child when he received the burglary sentence. Petitioner, like all others in prison meeting the

standards set forth in 2019, No. 148 (Adj. Sess.), § 14, became eligible for earned time starting on

1
Various terms are used to refer to the time subtracted from an offender’s sentence
depending on how that time is calculated and awarded, including “gain time,” “earned time,” and
“good time.” For consistency, such time will be referred to as “earned time” throughout this
opinion.
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January 1, 2021. Id. He earned a total of thirteen days off each of his sentences for the months of

March and April 2021.2

¶ 4. The earned-time program was again amended by 2021, No. 12, § 2, which became

effective on April 26, 2021. This act resulted in the current iteration of 28 V.S.A. § 818, which

reads:

Notwithstanding 1 V.S.A. § 214, an offender who was serving a
sentence for a disqualifying offense on January 1, 2021 shall not
earn any earned time sentence reductions under this section after the
effective date of this act. This subdivision (5) shall not be construed
to limit or affect earned time that an offender has earned on or before
the effective date of this act.

28 V.S.A. § 818(b)(5). Among the offenses disqualifying an offender from receiving earned time

is lewd and lascivious conduct with a child. Id. § 818(c)(1)(D). On June 12, 2021, the DOC

promulgated the regulations mandated by the 2021 law. Earned Time Rule, Code of Vt. Rules

13 130 013, http://www.lexisnexis.com/hottopics/codeofvtrules. Like § 818(b)(5), the regulations

make offenders serving a sentence for a disqualifying offense on or after January 1, 2021, ineligible

for earned time after April 26, 2021. Id. § III(B)(2).

¶ 5. These changes rendered petitioner ineligible to earn any additional time off his

maximum sentence for either offense, although he did not lose any previously granted earned time.

Petitioner filed a claim in the civil division challenging the implementation of the earned-time

program claiming violations of the Common Benefits Clause of the Vermont Constitution and the

Ex Post Facto and Due Process Clauses of the U.S. Constitution. He then moved for partial

summary judgment on the ex-post-facto claim alone, and the State responded with a cross-motion

on that claim. The civil division granted the State’s partial summary-judgment motion concluding

that petitioner suffered no ex-post-facto violation.

2
Because the act disqualifying petitioner from earned-time, 2021, No. 12, § 2, went into
effect on April 26, 2021, the earned-time that petitioner received for the month of April 2021 was
prorated, resulting in him receiving only six days off each of his sentences for that month.
3
¶ 6. In evaluating petitioner’s claim, the civil division applied the test set forth in

Weaver v. Graham, asking first whether the law in question was retrospective, and second, whether

it had disadvantaged the offender affected by it. 450 U.S. 24, 29 (1981). The court concluded that

the only relevant dates for determining whether the law was retrospective were (1) the date of the

offense and (2) the date that the earned-time program went into effect. The court rejected

petitioner’s argument that the date on which the initial law, 2019, No. 56, §§ 1-9, was enacted was

the proper date for determining retrospective application. It opined that although the Legislature

had directed the DOC to establish an earned-time program some two months before petitioner’s

offense, there was no indication that the DOC proposed or adopted such a program before

petitioner committed his offense on August 17, 2019.

¶ 7. The trial court went on to conclude that the program became effective on January

1, 2021, as required by 2019, No. 148 (Adj. Sess.), § 14. Thus, there could be no ex-post-facto

violation because no program was in effect at the time of petitioner’s offense. The trial court

therefore granted summary judgment to the State on the ex-post-facto claim. Petitioner then filed

a motion for reconsideration, requesting additional briefing on the difference between the

enactment date of the statute and the effective date of the program. The trial court denied the

motion. This Court accepted petitioner’s subsequent request for an interlocutory appeal from the

partial summary-judgment decision on the ex-post-facto claim.

¶ 8. We review a grant of summary judgment by applying the same standard as the trial

court, “affirming the judgment only when the moving party has demonstrated that there are no

genuine issues of material fact and the party is entitled to judgment as a matter of law, and

resolving all reasonable doubts in favor of the party opposing the motion.” Smith v. Parrott, 2003

VT 64, ¶ 6, 175 Vt. 375, 833 A.2d 843; see V.R.C.P. 56(a) (providing standard for summary

judgment).

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¶ 9. “The ex post facto prohibition forbids the Congress and the States to enact any law

which imposes a punishment for an act which was not punishable at the time it was committed; or

imposes additional punishment to that then prescribed.” Weaver, 450 U.S. at 28 (quotation and

footnote omitted). “Through this prohibition, the Framers sought to assure that legislative Acts

give fair warning of their effect and permit individuals to rely on their meaning until explicitly

changed.” Id. at 28-29. “To fall within the ex post facto prohibition, a law must be retrospective—

that is, ‘it must apply to events occurring before its enactment’—and it ‘must disadvantage the

offender affected by it’ by altering the definition of criminal conduct or increasing the punishment

for the crime.” Lynce v. Mathis, 519 U.S. 433, 441 (1997) (citation omitted) (quoting Weaver,

450 U.S. at 29).

¶ 10. “[A] law need not impair a vested right to violate the ex post facto prohibition.”

Weaver, 450 U.S. at 29 (quotation marks omitted). “Critical to relief under the Ex Post Facto

Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental

restraint when the legislature increases punishment beyond what was prescribed when the crime

was consummated.” Id. at 30. “Thus, even if a statute merely alters penal provisions accorded by

the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than

the law in effect on the date of the offense.” Id. at 30-31. In his opinion in Calder v. Bull, Justice

Chase distilled four categories of provisions which violate the Ex Post Facto Clause:

1st. Every law that makes an action, done before the passing of the
law, and which was innocent when done, criminal; and punishes
such action. 2nd. Every law that aggravates a crime, or makes it
greater than it was, when committed. 3rd. Every law that changes
the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed. 4th. Every law that alters
the legal rules of evidence, and receives less, or different, testimony,
than the law required at the time of the commission of the offence,
in order to convict the offender.

3 U.S. 386, 390 (1798).

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¶ 11. The U.S. Supreme Court first applied the Ex Post Facto Clause to prison earned-

time credits in Weaver. There, the offender availed himself of a Florida program in effect at the

time of his offense which allowed him to earn reductions in his sentence for good conduct. The

program was amended two years later, reducing the amount of time the offender could earn off his

sentence every month. The offender challenged the amended statute as a violation of the Ex Post

Facto Clause and the Court agreed. Id. at 27, 36. First, the Court held that the statute applied

retrospectively to the offender even if it was not contemplated in the original sentence because “it

alter[ed] punitive conditions outside the sentence.” Id. at 32. Next, the Court held that the statute

disadvantaged the offender because it prevented him from “shorten[ing] his time in prison simply

through good conduct.” Id. at 33-34. The Court stressed that because a vested right need not be

impaired, even alteration of penal provisions “accorded by the grace of the legislature” can violate

the Ex Post Facto Clause. Id. at 30-31.

¶ 12. The Court would further clarify the application of the ex-post-facto analysis to

earned-time credits in Lynce, where an offender was rearrested after five years’ worth of

provisional credits were retroactively cancelled by the Florida Legislature. Prior to the

commission of the offense at issue in Lynce, Florida had enacted a statute requiring earned-time

credits to accrue to offenders when the prison population reached 98% of capacity. Later

modifications not only altered the triggering threshold for the program’s effectiveness but made

the award of earned-time credits discretionary as opposed to mandatory. The Court determined

that the purpose behind the statute’s retroactive application was irrelevant and that it was not

required to be “in some technical sense part of the sentence.” 519 U.S. at 445. It rejected the

contention that the offender’s disadvantage was “speculative and attenuated” by pointing to the

concrete disadvantage he suffered—his reincarceration. Id. at 446-47.

¶ 13. Petitioner likens his circumstances to the petitioners in both Weaver and Lynce,

asserting that, as in those cases, modifications to the earned-time statute disqualifying him from

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the program are both retrospective and disadvantageous to him. However, the primary

distinguishing factor between petitioner’s claim and those made in Weaver and Lynce can be

distilled into the decisive legal question here: for purposes of an ex-post-facto analysis, does the

effective date of a program or the enactment date of the statute mandating its creation control?

The trial court determined that the former was the proper touchstone, which would not entitle

petitioner to relief under the Ex Post Facto Clause. It is irrelevant, petitioner contends, that the

State did not implement the earned-time program contemplated by 2019, No. 56, §§ 1-9, because

regardless of whether the program ever came to be, the statute on the date of petitioner’s burglary

offense was different than the one ultimately controlling his earned-time credits.

¶ 14. Petitioner cites Lynce, suggesting that it presents a similar factual scenario in which

an offender prevailed on an ex-post-facto challenge where the credits he earned were the result of

a statute enacted after his imprisonment. But this is a mistaken reading of the facts in Lynce.

Unlike here, in Lynce, there was an earned-time program enacted in 1983, three years before the

petitioner in that case committed his offense. The Lynce petitioner challenged the modification of

the statute, entitling him to more earned time than was allowed under the 1983 statute. The Court

determined that a 1992 statute cancelling the petitioner’s earned time, including time earned under

the more generous statutes, violated the Ex Post Facto Clause, even where the calculations were

based on a variety of modifications to the 1983 statute. 519 U.S. at 447-49. In making this

determination, the Court emphasized that the modifications did not affect petitioner’s core ex-post-

facto claim and that he “could have accumulated [earned time] under the [original] provision in

much the same manner as he did under the [modified] credits statute.” Id. at 449.

¶ 15. Lynce is distinguishable because even though the statutes had been modified, the

program itself existed at the time the petitioner committed his offence, with each successive

modification merely altering the triggering point. See id. at 447-48 (noting that emergency earned-

time program was in effect at time of petitioner’s sentence, requiring only that triggering

7
percentage of prison population be reached). The clear continuous statutory scheme governing the

earned-time program that existed in Lynce does not exist here. Petitioner understood the difference

because he sought to maintain the credits he received under the more generous law, 2019, No. 148

(Adj. Sess.), § 14, even though that statute had not yet been enacted when he committed his

offense.

¶ 16. Additionally, the Court in Lynce was persuaded by the successive Florida earned-

time statutes being largely part of the same statutory scheme, having no effect on the petitioner’s

“core ex post facto claim.” Lynce, 519 U.S. at 449. In contrast, here, the earned-time act that was

in effect at the time of petitioner’s offense, 2019, No. 56, §§ 1-9, largely left establishment of the

earned-time program to the discretion of the DOC. It was not until after petitioner committed his

offense that the Legislature enacted 2019, No. 148 (Adj. Sess.), § 14, which explicitly created an

earned-time program on January 1, 2021. As opposed to a continuous statutory scheme, the

statutes at issue here provide for limited discretion to create an earned-time program followed by

an explicit mandate after that discretion was not exercised by the deadline.

¶ 17. Petitioner further relies on the Florida Supreme Court case Gomez v. Singletary,

which he asserts supports his contention that the earned-time program in Lynce was never

implemented. 733 So. 2d 499, 501 (Fla. 1998) (“The State never implemented the [earned-time]

statute, so no [earned-time] was ever awarded.”). This misreads the complicated web of Florida

earned-time statutes. It is not that the 1983 earned-time statute was never implemented; rather, it

is that the statute had a triggering point of 98% of the prison population, which was never met, so

no earned time was ever awarded. See id. at 500.

¶ 18. The facts in Gomez are distinguishable from the facts here because the 1983 Florida

earned-time program continuously existed from the date of the offense forward, requiring no

additional government action for implementation. In contrast, the Vermont earned-time statute

provided discretion to carry out the creation of a mandated program, but did not create the program

8
itself. Because of the discretion afforded to the DOC to implement the program, and without the

regulations illustrating its contours, petitioner did not have the “lack of fair notice” required to

implicate anything beyond a “speculative and attenuated possibilit[y] of increasing the measure of

punishment.” Lynce, 519 U.S. at 441, 444 (citations omitted). Further, as the Gomez court notes,

“in this case, there was no cancellation of overcrowding credits already awarded. Accordingly, it

is at least arguable that the circumstances present in Lynce are not present here.” Gomez, 733 So.

2d at 504-05; see Lynce, 519 U.S. at 435-36 (describing how petitioner was released from prison

and subsequently re-arrested when statutory modification nullified his earned time).

¶ 19. Petitioner has not cited any binding caselaw supporting the contention that the

pertinent date for an ex-post-facto violation is the enactment date of the statute as opposed to the

effective date of the program it creates. When petitioner’s offense occurred, there was no earned-

time program of which he could have availed himself. There was merely a statute directing that

such a program be created. Furthermore, the program contemplated by the statute that petitioner

cites never came into existence. Here, 2019, No. 56, §§ 1-9, provided only a “speculative and

attenuated possibility of producing” an ex-post-facto violation because it required additional

government action for the program to become effective. Cal. Dep’t of Corr. v. Morales, 514 U.S.

499, 500 (1995). Nor can the later enacted statutes be considered part of a continuous statutory

scheme because they resulted in a different program altogether, which was not contemplated by

the original earned-time act. Petitioner’s claim is therefore “insufficient under any threshold we

might establish under the Ex Post Facto Clause.” Id. at 508.

¶ 20. While it is true that an ex-post-facto violation may occur even where “a statute

merely alters penal provisions accorded by the grace of the legislature,” such a program must still

be effective at the time of a petitioner’s offense for its discontinuance to violate the Ex Post Facto

Clause. Weaver, 450 U.S. at 30. This was not the case here, and thus, we agree with the trial court

9
that the subsequent modifications to the earned-time program disqualifying petitioner did not

offend the Ex Post Facto Clause of the U.S. Constitution.

Affirmed.

FOR THE COURT:

Associate Justice

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