Commonwealth of Kentucky Ex Rel. Attorney General Russell Coleman v. Toby Berry, on Behalf of Himself and a Certified Class

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However, on July 17, 2026, the DOC filed a notice in which it certified compliance with the Court's July 6, 2026 order. Subsequently, on July 29, 2026, this Court received Berry's Motion to Take Judicial Notice of July 6, 2026 Trial Court Order, and July 17, 2026 "Notice of Compliance . . ." or Alternatively, Motion to Supplement. After review, we take judicial notice of the fact that DOC complied with the circuit court's order. We further reject Berry's argument that DOC's compliance renders the Commonwealth's RAP 20(C)(2) motion moot. Accordingly, we will still consider the merits of the Commonwealth's RAP(C)(2) motion. We deny the Commonwealth's motion for relief, and we affirm the circuit court's ruling.

I. Background

On May 24, 2024, Berry, the class representative in these proceedings, pled guilty to second-degree assault, first-degree strangulation, and first-degree unlawful imprisonment. In a second plea deal, he pled guilty to second-degree promoting contraband. At the time Berry entered his guilty pleas, his conviction for first-degree strangulation did not qualify him for "violent offender" status under KRS³439.3401 (eff. July 14, 2022, through July 14, 2024). Thus, Berry would have been parole eligible after serving twenty percent of his sentence. However, on July 14, 2024, prior to Berry's sentencing, KRS 439.3401 was amended by the enactment of House Bill (HB) 5, or the "Safer Kentucky Act." This statute expanded the offenses that are

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characterized under the definition of "violent offender." Relevant to this case, it included first-degree strangulation as an offense that qualified an individual for violent offender status. KRS 439.3401(1)(b)14. Therefore, under the amended statute, individuals convicted of first-degree strangulation would be parole eligible only after serving eighty-five percent of their sentences. Id. On August 6, 2024, the trial court sentenced Berry to ten years' imprisonment pursuant to the plea agreements, and the Department of Corrections (DOC) indicated a sentence start date of August 2, 2024. The DOC applied HB 5's parole eligibility requirements at the time of sentencing. As a result, Berry was required to serve eighty-five percent of his sentence before becoming parole eligible. Subsequently, Berry filed a grievance with the DOC. On February 13, 2025, the DOC responded: "Since you were sentenced on August 2, 2024, which is after House Bill 5 went into effect, you are required to served 85% before being eligible for parole serving on a violent crime per KRS 439.3401." On February 17, 2025, the DOC again responded: "Per House Bill

5 Strangulation 1st degree requires an 85% Parole Eligibility when sentenced⁴ after 7/14/24."

On February 26, 2025, the Franklin Circuit Court entered an Agreed Order Regarding Parole Eligibility that declared:

IT IS HEREBY ORDERED that the Defendant is eligible for 20% parole eligibility on the offenses in the above styled case that the [DOC] is currently treating as 85% parole eligible . . . The offer from the Commonwealth that was accepted and sentenced via

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Final Judgment by this Court indicated that the charges would be 20% parole eligible.

However, the DOC refused to follow this order. Berry then filed a Complaint for Declaratory Judgment and Injunctive Relief. Berry sought:

[A] declaration that the Kentucky Department of Corrections cannot retroactively apply any of the provisions of 2024 HB 5, and that therefore all aspects his sentence, including parole eligibility, must be calculated in accordance with the controlling authority at the time of his offense. Further, Mr. Berry [sought] injunctive relief prohibiting the Department of Corrections from retroactively applying 2024 HB 5 to him or any other inmate whose offense was committed prior to the effective date of the law, and injunctive relief requiring the Department of Corrections to set his parole eligibility at 20% of his sentence in accordance with this Court's prior rulings and the law at the time of the offense. The Commonwealth argued that the circuit court lacked authority to issue a statewide injunction in the absence of a class action suit. Berry later sought a class action certification, and the circuit court certified Berry as a class representative on July 14, 2025. The Commonwealth then appealed the circuit court's class certification to the Court of Appeals pursuant to CR 23.06. The Commonwealth also filed a motion for intermediate relief under RAP 21(A)(1) with the Court of Appeals to stay the circuit court proceedings on the merits of Berry's claims regarding HB 5 pending the outcome of the Court of Appeals' ruling on the Commonwealth's challenge to the class certification. The Court of Appeals granted the stay, holding that the Commonwealth had made a satisfactory showing of irreparable injury because "[n]on-enforcement of a duly- enacted statute constitutes irreparable harm to the public and the government." Commonwealth ex rel. Coleman, v. Berry, No. 2025-CA-0939-ME, Order (Ky. App. Aug. 13, 2025). Subsequently, Berry filed a motion pursuant

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to RAP 21(B) and RAP 20(F) in this Court. Berry's motion requested this Court to vacate the Court of Appeals' order granting the Commonwealth's motion to stay. This Court held

that the Court of Appeals abused its discretion in determining that the Commonwealth will suffer immediate and irreparable injury if the proceedings in circuit court on the merits of Berry's challenge to the DOC's interpretation of HB 5 are not stayed pending the outcome of the Court of Appeals' ruling on the Commonwealth's appeal of the certification of the class.

Berry v. Commonwealth ex rel. Coleman, No. 2025-SC-0341-I, 2025 WL 2999097, at *1 (Ky. Oct. 23, 2025). Thus, this Court granted Berry's motion for relief under RAP 21(B) and RAP 20(F)(1) and vacated the Court of Appeals' order and remanded the case to the Court of Appeals for further proceedings. On August 11, 2025, Berry filed a Motion for Judgment with the circuit court, and the circuit court held a hearing on August 27, 2025. On February 17, 2026, the circuit court granted Berry's Motion for Judgment. First, the circuit court reasoned that "[t]he DOC erred in applying 2024 HB 5 to offenses committed prior to its effective date." Second, the court reasoned that "[t]he DOC's application of HB 5 to offenses committed prior to its effective date is a violation of the U.S. and Kentucky's constitution's prohibition on ex post facto laws." In granting Berry's motion, the circuit court also ordered:

1. The Defendant DOC is ENJOINED from applying 2024 HB 5 to any plaintiff class member or inmate whose offense occurred prior to July 15, 2024.

2. The Defendant DOC is required to impose 20% parole eligibility for all offenses which carried 20% parole eligibility at the time of the offense, regardless of the date of sentencing.

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3. The Defendant DOC is required to change all sentences calculated at 85% due solely to DOC's erroneous interpretation of HB 5, to 20% parole eligibility, and to make all affected offenders immediately eligible for placement in the Substance Abuse Program or other programs, if their recalculated parole date makes them eligible.

4. This is a final and appealable order and there is no just cause for delay.

The Commonwealth immediately appealed this order, and it filed a Motion for Relief During the Pendency of the Appeal pursuant to RAP 20(C)(1) in the circuit court. On February 25, 2026, the circuit held a hearing on the matter. On March 2, 2026, the circuit court denied the Commonwealth's motion. The Commonwealth now requests a stay of the enforceability of the circuit court's order under RAP 20(C)(2).

However, on July 29, 2026, this Court received Berry's Motion to Take Judicial Notice of July 6, 2026 Trial Court Order, and July 17, 2026 "Notice of Compliance . . ." or alternatively, Motion to Supplement. Berry's motion states:

Berry . . . moves this Court pursuant to KRE 201 to take judicial notice of (a) the trial court's July 6, 2026 order directing compliance with its February order, and (b) the July 17, 2026

"Notice of Compliance with the Court's July 6, 2026 Order Submitted on Behalf of Defendants Kentucky Department of Corrections and Commissioner Crews," true and correct copies of which are attached to this motion as Exhibits C and D Alternatively, Berry moves that this Court order a supplemental record to include these documents.

In his motion, Berry lists the following facts:

On July 17, 2026, the DOC filed a notice which they "certifie[d] compliance with the Court's [July 6, 2026] order." Specifically, DOC stated that: "The following changes have been implemented in

compliance with the Court's July 6, 2026 Order: (1) 20% parole eligibility has been imposed for offenses that carried a 20% parole

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eligibility at the time of offense; (2) Sentence calculated at 85% due solely to what this Court described as an erroneous interpretation of HB 5 have been changed to 20% parole eligibility; and (3) All affected offenders with recalculated parole eligibility dates that make them immediately eligible for Substance Abuse programs or other programs, are now eligible to apply for participation in those programs."

Engulfed within Berry's argument is the premise that the DOC's compliance with the circuit court's order renders the Commonwealth's RAP 20(C)(2) motion moot. The Commonwealth is not opposed to this Court taking judicial notice. However, it opposes this Court rendering its RAP 20(C)(2) motion moot, and requests this Court to consider its merits.

II. Analysis

First, we grant Berry's motion to take judicial notice. Under KRE 201(b):

A judicially noticed fact must be one not subject to reasonable dispute in that it is either: (1) Generally known within the county from which the jurors are drawn, or, in a nonjury matter, the county in which the venue of the action is fixed; or (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Accordingly, "[a] court shall take judicial notice if requested by a party and supplied with the necessary information." KRE 201(d). Berry cites Rogers v. Commonwealth, 366 S.W.3d 446, 451 (Ky. 2012), which states that "it may be appropriate to notice court records for the occurrence and timing of matters reflected in them—the holding of a hearing, say, or the filing of a pleading . . . ."

Rogers cited Meece v. Commonwealth, which upheld that "trial court's decision to take notice that a criminal charge had been dismissed, but not to take notice of the purported reason for the dismissal." Rogers, 366 S.W.3d at 451-52

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(citing Meece v. Commonwealth, 348 S.W.3d 627, 692-93 (Ky. 2011)). Thus, we are permitted to take judicial notice of the fact that the Commonwealth filed a RAP 20(C)(2) motion seeking a stay of the circuit court's order and that, while the motion remained pending, the DOC complied with the circuit court's order. Such a judicial notice falls squarely within the established law permitting courts to take notice of proceedings reflected in the record. Berry further argues that the Commonwealth's RAP 20(C)(2) motion is moot. Berry reasons that

[t]he motion requested a stay of the injunction which ordered DOC to change the parole eligibility dates for the affected inmates back to 20%, however, that action has been fully completed. As DOC will no longer be changing the parole eligibility from 20% to 85% going forward, and instead has returned to its historic practice of using the offense date to determine parole eligibility, the injunction has been fully executed and the resolution is complete. Thus, the relief requested by the Attorney General is no longer available, rendering the request moot, as there is no practical relief that can now be granted. See Commonwealth v. Hughes, 873 S.W.2d 828, 830 (Ky. 1994).

We hold that the Commonwealth's RAP 20(C)(2) motion is not moot. "A case or issue becomes moot 'when a change in circumstances renders the court unable to grant meaningful relief to either party.'" Long v. Dep't Of Revenue, 718 S.W.3d 868, 881 (Ky. 2025) (quoting Commonwealth, Ky. Bd. of Nursing v. Sullivan Univ. Sys., Inc., 433 S.W.3d 341, 344 (Ky. 2014)). Because this Court still could grant the Commonwealth's RAP 20(C)(2) motion and issue a stay of the enforceability of the circuit court's order—which would grant relief to the Commonwealth—this motion is not moot. Therefore, Berry's motion to take judicial notice is granted to the extent that it takes judicial notice of the fact

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that the DOC complied with the circuit court's order. However, this Court does not render the Commonwealth's RAP 20(C)(2) motion moot. We will now consider the merits of the Commonwealth's RAP 20(C)(2) Motion for Intermediate Relief. Under RAP 20(C)(1), "[a]fter an appeal is taken from a final judgment granting or denying an injunction, any party may move the circuit court to grant, suspend or modify injunctive relief during the pendency of the appeal." Accordingly, under RAP 20(C)(2), "[a] party adversely affected by a ruling by the circuit court under paragraph (C)(1) of this rule may move the Court of Appeals for relief." The Commonwealth originally filed this motion with the Court of Appeals, and the Court of Appeals recommended transfer to this Court, which we accept. Therefore, this motion is properly before this Court. RAP 17(F).

Notably, RAP 20(C)(1) does not provide guidance on what the moving party is required to show in order for the circuit court to grant the motion. Accordingly, the circuit court relied on the following law:

[T]he movant must demonstrate (1) irreparable injury pending the appeal; (2) the equities weigh in favor of the requested relief; and

(3) the appeal presents a substantial question on the merits or that the movant has a probability of success on appeal. See 19 Ky.

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Prac., Appellate Prac. § 11:6;⁵Maupin v. Stansbury, 575 S.W.2d 695 (Ky. Ct. App. 1978).⁶

The Commonwealth now seeks review on appeal where it argues that all four factors "[favor] interlocutory relief here."

First, we hold that the circuit court used the proper standard to guide its reasoning in denying the Commonwealth's motion for relief. While these sources are not binding on this Court, we utilize the same standard of review herein as employed by the Court of Appeals in Maupin. Therefore, on appellate review, "[u]nless a trial court has abused its discretion in applying the above

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standards, we will not set aside its decision on a CR 65.07 review." Maupin, 575 S.W.2d at 699. This standard of review is consistent with our review of cases appealed under CR 65.07. Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 162 (Ky. 2009) ("[A]n appellate court may not disturb a trial court's decision on a temporary injunction unless the trial court's decision is a clear abuse of discretion."). "An abuse of discretion occurs if the trial court's ruling is 'arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Garrett v. Commonwealth, 534 S.W.3d 217, 224 (Ky. 2017) (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). This Court need not address the merits of the appeal from the circuit court's order granting the Motion for Judgment as that appeal remains pending. Rather, the sole issue before this Court is whether the trial court abused its discretion when it denied the Commonwealth's motion for a stay pending appeal pursuant to RAP 20(C)(1). We hold that it did not. One of the Commonwealth's persistent arguments is that it will suffer irreparable injury if HB 5 is not enforced. However, HB 5 will still be enforced. In this Court's Opinion and Order Granting Motion for Interlocutory Relief, Vacating, and Remanding, we plainly stated: "[Berry's] argument is not that HB 5 is constitutionally infirm or otherwise invalid. Rather, his sole challenge is to whether it can be retroactively applied to defendants sentenced after its enactment date." Berry, et al., No. 2025-SC-0341-I, 2025 WL 2999097, at *4. Accordingly, the circuit court expressly limited the scope of its order. It does not prevent enforcement of HB 5. Instead, it merely prohibits the

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Commonwealth from applying HB 5 retroactively. In its Opinion and Order Denying Stay Pending Appeal, the circuit court squarely addressed this issue when it stated that its "ruling provides that HB 5 will be fully enforced, but that it may not be enforced retroactively upon Defendants whose crimes were committed prior to the enactment of HB 5." Therefore, the circuit court did not abuse its discretion when it concluded that the Commonwealth failed to demonstrate irreparable harm on the basis of non-enforcement. Next, the Commonwealth argues that it will suffer irreparable injury because a large number of violent offenders will become parole eligible earlier than they otherwise would have if HB 5 is retroactively enforced. We disagree. The Commonwealth cannot show irreparable injury arising from enforcement of the law that governed at the time of the individuals' offenses. First, the Commonwealth has not shown that the former governing law caused any cognizable injury or that the law was erroneous. Rather, the law was merely superseded by HB 5. Second, the circuit court flatly rejected this argument:

The Attorney General argues that its motivation for requesting the stay is out of concern that an individual eligible for parole under the Court's Order may be released and commit another crime while out on parole. However, this concern is wholly speculative. . . . Possible harm from a hypothetical crime committed upon release is wholly speculative and is not an abrogation of a concrete right necessary for this Court to find irreparable harm.

The Commonwealth now makes the same argument to this Court: "[D]eclining to stay the circuit court's judgment may result in the premature release of hundreds of violent offenders, putting countless Kentuckians at risk."

However, "[a]n injunction will not be granted on the ground merely of an

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anticipated danger of an apprehension of it, but there must be reasonable probability that injury will be done if no injunction is granted." Norsworthy v. Ky. Bd. of Med. Licensure, 330 S.W.3d 58, 63 (Ky. 2009) (quoting Hamlin v. Durham, 32 S.W.2d 413, 414 (Ky. 1930)). The circuit court did not abuse its discretion when it ruled that the Commonwealth's alleged irreparable injury is wholly speculative. As we clearly expressed in our Opinion and Order Granting Motion for Interlocutory Relief, Vacating, and Remanding: "[E]ven if the circuit court ultimately agrees with Berry, no inmate will qualify for early release unless and until the Kentucky Parole Board deems it appropriate." Berry, et al., No. 2025-SC-0341-I, 2025 WL 2999097, at *4. The mere possibility that the Kentucky Parole Board will release "hundreds of violent offenders" is not enough to show irreparable injury under this standard. Accordingly, it is further speculative to assume that any individual that the Kentucky Parole Board releases will commit more crimes and put Kentuckians at risk. Therefore, the circuit court properly concluded that the Commonwealth has failed to show irreparable injury. On the other hand, Berry has demonstrated actual injury—Berry and the members of the class he represents cannot enroll in education and rehabilitative programs.

As to the likelihood of success on the merits, we will not delve deeply into the issue because the matter remains pending on appeal. Nevertheless, we conclude that the trial court's determination—that the Commonwealth failed to demonstrate a likelihood of success on the merits—is supported by a well- reasoned opinion. Although the issues presented are novel and complex and

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await resolution on the merits, we cannot say that the circuit court abused its discretion in ruling as it did.

Based on the foregoing, we conclude that the circuit court did not abuse its discretion in denying the Commonwealth's Motion for Relief During the Pendency of the Appeal under RAP 20(C)(1). Therefore, we decline to set aside the circuit court's decision.

III. Order

Berry's motion for judicial notice is hereby GRANTED. The Commonwealth's motion for relief under RAP 20(C)(2) is hereby DENIED. The circuit court's Opinion and Order Denying Stay Pending Appeal is AFFIRMED. All sitting. All concur.

COUNSEL FOR APPELLANT:

Shawn D. Chapman Deputy Solicitor General Graham Pilotte

Assistant Solicitor General

COUNSEL FOR APPELLEE, TOBY BERRY

Timothy G. Arnold

Assistant Public Advocate Nicole Cossel

Assistant Public Advocate COUNSEL FOR APPELLEES, COOKIE CREWS and KENTUCKY DEPARTMENT of CORRECTIONS

Allison Rene Brown

Ky. Dept. of Corrections

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Angela Turner Durham Justice and Public Safety Cabinet