EDWIN LEE MORAN v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 1, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO.
97-CA-001031-MR
EDWIN LEE MORAN
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY NOBLE, JUDGE
ACTION NO. 95-CR-725
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE:
ABRAMSON, DYCHE AND HUDDLESTON, JUDGES.
HUDDLESTON, JUDGE.
Edwin Lee Moran appeals pro se from an order
denying his motion for relief under Ky. R. Civ. Proc. (CR) 60.02.
Moran is serving consecutive sentences received on a 1996 felony
conviction and the revocation of his probation on a 1995 felony
conviction. He argues that the circuit court should have corrected
his sentence upon revocation of probation to run concurrently with
subsequent convictions because his probation was revoked more than
ninety days after the grounds for revocation came to the attention
of the Department of Corrections.
Moran pleaded guilty to theft by deception over $300.00,
Ky. Rev. Stat. (KRS) 514.040 and second-degree persistent felony
offender (PFO II), KRS 532.080, in case 95-CR-725 on October 13,
1995 in Fayette Circuit Court.
The court sentenced him to five
years on the theft charge, enhanced to ten because of the PFO II
charge, but probated the sentence for five years.
One of the
conditions of probation was that Moran not commit any crimes.
He
soon committed another offense and pleaded guilty to a felony and
PFO I in case 96-CR-088 on March 22, 1996, again in Fayette Circuit
Court.
The court imposed a sentence of ten years.
He later
pleaded guilty to additional felonies and PFO charges in Jessamine
and Fayette Circuit Courts, none of which are relevant to this
appeal.
On April 2, 1996, a probation and parole officer filed an
affidavit supporting a motion to revoke Moran's probation because
of Moran's conviction in case 96-CR-088.
The court revoked his
probation in case 95-CR-725 on June 25, 1996.
The court sentenced
Moran to ten years for PFO II, and ordered the sentence to run
consecutively to the sentence in 96-CR-088 and any other previous
felony sentence.
Moran filed a motion under CR 60.02 asking the court to
correct the sentence under 95-CR-725 to run concurrently with the
sentence in 96-CR-088.
On March 27, 1997, the court entered an
order amending its June 25, 1996, order but retaining the requirement that the sentence be consecutive to any previous sentence.
Moran filed a motion to reconsider and to supplement his CR 60.02
motion.
In separate orders, the court denied Moran's CR 60.02
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motion and denied his motion to reconsider the amended order.
Moran appeals the latter order.
On appeal, Moran asserts that his sentence in this case,
95-CR-725,
should
run
concurrently
with
subsequent
sentences
because (1) KRS 533.040(3) requires this result, in spite of Brewer
v. Commonwealth, Ky., 922 S.W.2d 380 (1996); (2) Moran committed
only a Class D felony while on probation; and (3) KRS 533.060(2)
requires
consecutive
sentences
only
where
a
person
has
been
committed to a detention facility and then released on probation.
Moran also claims that the circuit court lacked the authority to
amend the June, 1996, judgment under Ky. R. Crim. Proc. (RCr)
10.10.
Moran argues that the trial court was required to run his
sentence in 95-CR-725 concurrently with his sentence in 96-CR-088
pursuant to KRS 533.040(3), which provides as follows:
A sentence of probation or conditional discharge
shall run concurrently with any federal or state jail,
prison, or parole term for another offense to which the
defendant is or becomes subject during the period, unless
the sentence of probation or conditional discharge is
revoked. The revocation shall take place prior to parole
under or expiration of the sentence of imprisonment or
within ninety (90) days after the grounds for revocation
come to the attention of the Department of Corrections,
whichever occurs first.
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Generally, a revocation of probation that occurs outside of the
90-day period is to be run concurrently with any other offense.
Sutherland v. Commonwealth, Ky., 910 S.W.2d 235, 237 (1995). Moran
assumes that the court's revocation of probation did not meet the
ninety-day requirement and that as a consequence his sentences
should run concurrently.
However, by the operation of KRS 533.060(2) it does not
matter whether or not this time frame was met.
KRS 533.060(2)
provides:
When a person has been convicted of a felony and is
committed
to
a
correctional
detention
facility
and
released on parole or has been released by the court on
probation, shock probation, or conditional discharge, and
is convicted or enters a plea of guilty to a felony
committed while on parole, probation, shock probation, or
conditional discharge, the person shall not be eligible
for probation, shock probation, or conditional discharge
and the period of confinement for that felony shall not
run concurrently with any other sentence.
(Emphasis supplied.)
The emphasized language of KRS 533.060(2) supersedes any
relief
that
533.040(3).
might
have
Brewer, supra.
been
available
to
Moran
under
KRS
Moran was (1) a person convicted of a
felony; (2) who had been released by the trial court on probation;
and (3) who subsequently entered a plea of guilty to a felony
committed while on probation. KRS 533.060(2) clearly requires that
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Moran's second sentence in 96-CR-088 not run concurrently with his
first sentence in 95-CR-725.1
For this reason, "[i]n practical
terms, the result of this case will not give the appellant the
relief he seeks . . . ."
Id. at 381 (emphasis supplied).
Moran asks this Court to overrule Brewer.
Even if we
were so inclined, this Court is bound to apply the precedent of the
Kentucky Supreme Court.
Sup. Ct. R. (SCR) 1.030(8)(a).
Brewer is
directly on point and requires that Moran's sentences run consecutively.
Moran's second argument seizes on dicta in Brewer that
KRS 533.040(3) would still apply where a probationer commits a
misdemeanor while on probation.
Id. at 382.
Thus, if the
Commonwealth did not meet the ninety-day requirement, the sentence
on the earlier offense would run concurrently with the sentence on
the misdemeanor.
Moran argues that this should be extended to his
case because he committed only a Class D felony while on probation,
the least serious of felonies. However, KRS 533.060(2) on its face
applies to all felonies committed while on probation, Class D or
otherwise.
This argument is without merit.
Moran's third argument is that KRS 533.060(2) requires
consecutive sentences only where a person has been committed to a
detention facility and then released on probation because the
statute uses the phrase, "released by the court on probation, shock
1
The same judge presided over both 95-CR-725 and 96CR-088. In its April 10, 1997, order, the court noted that when
it sentenced Moran in 96-CR-088, it ordered the sentence to run
consecutively to his sentence in this case, 95-CR-725.
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probation, or conditional discharge."
This could occur if a court
imposed a sentence of probation and imposed the condition that the
defendant submit to a period of imprisonment in the county jail,
KRS 533.030(6), or if a court granted a motion for shock probation
after a period of incarceration, KRS 439.265.
Moran contends KRS
533.060(2) does not apply to him because neither scenario took
place.
We
decline
to
adopt
Moran's
narrow
reading
of
the
statute. "[T]he General Assembly's clear intention in enacting KRS
533.060(2)
[was]
to
provide
stiff
penalties
in
the
form
of
consecutive sentences to those who, after having been awarded
parole or probation, violate that trust by the commission of
subsequent felonies."
Brewer, supra at 382 (emphasis supplied).
In view of the intent of the statute the phrase "released by the
court on probation" means release from service of sentence.
KRS
533.060(2) applies to all forms of probation.
Finally, Moran argues that the court's March 27, 1997,
order was improper because it impermissibly corrected a judicial
error.
We disagree.
Clerical mistakes and errors arising from
oversight or omission in judgments, orders or other parts of the
record may be corrected by the court at any time upon its own
initiative.
RCr 10.10; CR 60.01.
This authority extends to any
phase of a proceeding when as a result of inadvertence, mistake,
oversight, omission or neglect an accurate record has not been
made.
7 Phillips, Kentucky Practice, CR 60.01 (5th Ed. 1995).
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The court's June 25, 1996, judgment reads that the
sentence in 95-CR-075 "shall run CONSECUTIVELY WITH 96-CR-088 and
run CONSECUTIVELY with any other previous felony sentence the
Defendant must serve."
The March 27, 1997, order amended the
earlier order by eliminating any reference to 96-CR-088.
In a
later opinion and order, the court explained that this correction
was necessary because the sentence in 95-CR-725, coming first,
could not run consecutively to the sentence in 96-CR-088. Thus, in
imposing the original sentence that had been suspended, the court
reasoned that the judgment should and could not refer to Moran's
subsequent sentence in 96-CR-088.
The chronology of the court's orders admittedly was
confusing.
However, the amended order did not change the meaning
or effect of Moran's sentence.
The original judgment granting
probation ordered that the sentence imposed run consecutively to
any previous felony sentence, the judgment revoking probation
ordered that the sentence run consecutively to 96-CR-088 and any
other previous sentence, and the amended order returned to the
language of the original order.
concurrent sentence.
At no time did the court order a
The amended order merely corrected the
judgment to conform with the record and was proper under RCr 10.10.
For the foregoing reasons, the decision of the circuit
court is affirmed.
ALL CONCUR.
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PRO SE BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Edwin Lee Moran
Lexington, Kentucky
A. B. Chandler III
Attorney General of Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
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