KEVIN NOBLE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
September 18, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No. 1997-CA-002245-MR
KEVIN NOBLE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
ACTION NO. 96-CR-1934
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ABRAMSON, BUCKINGHAM, and COMBS, Judges.
ABRAMSON, JUDGE:
Kevin Noble (Noble) brings this pro se appeal
from an order of Jefferson Circuit Court entered on August 18,
1997, denying his motion for jail-time credit brought pursuant to
Kentucky Revised Statute (KRS) 532.120(3).
After review of the
record, we affirm.
In November 1995, Noble was serving a one-year jail
sentence on two misdemeanor offenses at River City Corrections in
Louisville, Kentucky.
While on work release, Noble failed to
return to the jail facility, which resulted in his being charged
with and later indicted on second-degree escape in Case No. 96CR-1752.
In July 1996, the police arrested Noble on the second-
degree escape charge.
In August 1996, the Jefferson County Grand
Jury indicted Noble in Case No. 96-CR-1934 on five felony counts
of theft by failure to make required disposition of property over
$300.00 (KRS 514.070) related to his failure to perform roofing
work after obtaining payment for the work.
In September 1996,
Noble pled guilty to the five counts of theft by failure to make
required disposition pursuant to a plea agreement with the
Commonwealth.
Under the agreement, the Commonwealth recommended
a sentence of two years on each count to run concurrently with
each other for a total of two years, but this sentence was to run
consecutively to a one-year sentence Noble received on the
second-degree escape charge in Case No. 96-CR-1752.
In October
1996, the trial court sentenced Noble consistent with the
Commonwealth's recommendation to two years to run consecutive to
the one-year escape sentence.1
At the sentencing hearing, the trial court indicated
that Noble would be entitled to receive jail-time credit pursuant
to KRS 532.120 as calculated by the Division of Probation and
Parole.
Upon entering prison, the Department of Corrections
credited Noble with two days’ jail-time, one day on each of the
two convictions in Case Nos. 96-CR-1752 and 96-CR-1934, based on
1
The judgment was later amended to reflect the dismissal of
one count of the theft offenses because Noble had already pled
guilty to the offense as amended to a misdemeanor in district
court.
-2-
the report of Probation and Parole Officer Karen Adamczak.
In
January 1997, Noble filed a "Motion for Clarification of
Sentence" seeking 129 days of jail-time credit.
The trial judge
ordered the Department of Corrections to review Noble's record
and file a written report on the calculation of the jail-time
credit due Noble.
In response, a Corrections Department records
custodian submitted documents to the court on the Department's
sentence calculation (Resident Record Card) and Adamczak's
custody time credit form.
These documents credited Noble with
two days’ jail-time on the two felony convictions.
The
Commonwealth also filed a response to the motion and included a
letter from Adamczak to the prosecutor explaining her
calculation.
On April 1, 1997, the trial judge summarily denied
the motion.
On August 14, 1997, Noble filed a motion for
reconsideration of his jail-time credit.
an award of 129 days of jail-time credit.
Noble again requested
In this motion, Noble
contested the grounds for the probation and parole officer's
calculation.
The trial judge noted Noble's prior motion and his
failure to appeal from the court's order denying the first
motion, and then denied the motion for reconsideration.
This
appeal followed.
As an initial matter, Noble appears to be procedurally
barred from raising the issue of his jail-time credit.
He failed
to appeal the April 1997 order denying his motion and the August
1997 motion for reconsideration was untimely.
-3-
See Commonwealth
v. Newsome, Ky., 296 S.W.2d 703, 705 (1956) (motion for
reconsideration of order is considered equivalent to CR 59.05
motion and must be filed within ten days).
Consequently, Noble
has voluntarily waived any right to raise the exact same issue
again in a subsequent motion.
Once the trial court's April 1997
denial of the motion for jail-time on the merits became final, it
was binding as to the same parties under the doctrine of res
judicata.
See generally Barnett v. Commonwealth, Ky., 348 S.W.2d
834 (1961).
Nevertheless, Noble's substantive complaint has no
merit.
Noble contends that he is entitled to jail-time credit
from the date of his arrest in June 1996 until his sentencing in
October 1996.
He argues that this period should be credited
toward his prison sentence on the felony conviction because the
district court had issued a $250,000.00 cash bond prior to
referring the theft charges to the grand jury.
Noble maintains
that the award of jail-time credit is mandatory under KRS
532.120(3). See, e.g., Polsgrove v. Kentucky Bureau of
Corrections, Ky., 559 S.W.2d 736 (1977); Bartrug v. Commonwealth,
Ky. App., 582 S.W.2d 61 (1979).
KRS 532.120(3) provides as follows:
Time spent in custody prior to the
commencement of a sentence as a result of the
charge that culminated in the sentence shall
be credited by the court imposing sentence
toward service of the maximum term of
imprisonment. If the sentence is to an
indeterminate term of imprisonment, the time
spent in custody prior to the commencement of
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the sentence shall be considered for all
purposes as time served in prison.
(Emphasis added.)
The time Noble served in jail between June and October
1996 was not "as a result of the charge that culminated in the
sentence" in Case No. 96-CR-1934 involving the felony theft
offenses.
When Noble was arrested after improperly leaving River
City Corrections, he still had 238 days to serve on his
misdemeanor conviction.
Noble was not credited on his felony
sentence because he was serving out the remainder of his
misdemeanor sentence of the felony indictments.
Thus, he was not
being held in jail solely on the felony charges or due to his
inability to make bond on the theft charges.
In addition, Noble's reliance on KRS 532.120(5) and
Bailey v. Commonwealth, Ky. App., 598 S.W.2d 472 (1980) is
misplaced.
KRS 532.120(5) states:
If a person serving a sentence of
imprisonment escapes from custody, the escape
shall interrupt the sentence. The
interruption shall continue until the person
is returned to the institution from which he
escaped or to an institution administered by
the Department of Corrections. Time spent in
actual custody prior to return under this
subsection shall be credited against the
sentence if custody rested solely on an
arrest or surrender for the escape itself.
In Bailey v. Commonwealth, supra, the appellant had
escaped from a state prison facility and was arrested on an
escape warrant the next day.
Bailey was indicted subsequently
for the offense of second-degree escape.
-5-
He spent 72 days in
custody in a local jail following his arrest before he was
returned to a state prison facility to complete service of his
original sentence.
The court held that under KRS 532.120(5) and
532.120(3), the 72 days should be credited against the sentence
on the second-degree escape offense, rather than the sentence of
the offense that he was serving when he escaped.
The court's
decision was based on the fact that "the 72 days spent at the
Metro Detention Center was the result of the indictment for the
second-degree escape. . ."
Id. at 473.
Similarly, the Commentary to KRS 532.120 explains the
purpose of Subsection 5.
Subsection (5) established a standard to
govern the calculation of terms of
imprisonment following an escape. Generally,
the escape interrupts the sentence until the
offender is back in the institution from
which he escaped or another institution
selected by the department of corrections.
The last part of the subsection seeks to
provide credit to the offender for time spent
in custody prior to his return to the
institution. This part applies only if that
custody resulted solely because of the
escape. If another offense was committed
during the period of absence and this led to
the defendant's arrest, no credit is given on
the balance of his unserved term.
In the case at bar, the record reveals that there were
numerous charges pending against Noble at the time of his arrest.
As stated above, Noble was not being held in custody at the jail
solely because of the escape or theft indictments.
Unlike
Bailey, Noble was actually returned to the same jurisdictional
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facility upon arrest and remained there until his transfer to a
state corrections facility to begin serving his felony sentences.
The facts in Martin v. Commonwealth, Ky. App., 957
S.W.2d 262 (1997) are very similar to those in the case at bar.
While Martin was serving a misdemeanor sentence under the home
incarceration program in Jefferson County, he made an
unauthorized departure from his home.
He was arrested and
returned to the custody of Jefferson County Corrections six days
later.
Martin was indicted for and pled guilty to second-degree
escape, and received a one year prison sentence.
The trial court
denied Martin's motion for jail-time credit on his felony
sentence for the period of time he spent in jail unable to make
bond between his arrest and sentencing.
and KRS 532.120(5).
Martin relied on Bailey
In affirming the denial of jail-time credit,
this Court distinguished Bailey and noted that Martin was
returned to the custody of the same jurisdictional entity,
Jefferson County Corrections.
Since Martin received credit for the time
awaiting sentencing against the underlying
misdemeanor sentence, he was not entitled to
credit against his one-year escape sentence.
In fact, since KRS 532.110(4) required that
Martin's sentence for the escape run
consecutively with Martin's underlying
misdemeanor sentence, he could not receive
credit against both sentences. The holding
in Bailey avoided the inequity of Bailey not
receiving credit against either sentence.
Here, since Martin received credit against
the misdemeanor sentence, to also give him
credit against the escape sentence would
constitute an inequity in his favor.
-7-
Id. at 264.
As in Martin, Noble received credit on the time
spent in jail between his arrest and sentencing on his underlying
misdemeanor sentence.
He was not entitled to double credit by
also receiving credit on the felony theft sentence.
For the foregoing reasons, we affirm the order of the
Jefferson Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kevin Noble, Pro Se
Burgin, Kentucky
A. B. Chandler, III
Attorney General
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
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