ROBERT LEE BROWN v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 31, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002121-MR
ROBERT LEE BROWN
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
ACTION NOS. 93-CR-000206 & 93-CR-001490
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
EMBERTON, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Robert Lee Brown (Brown) appeals from the
denial of his motion to vacate, set aside or correct judgment
pursuant to RCr 11.42.
We agree with Brown that the plea
agreement should be enforced.
However, we believe the plea
agreement can be enforced short of reversal by reversing the
sentence only and remanding for resentencing.
On January 20, 1993, Brown, along with Todd Ingram and
Durand Murrell,1 was indicted by the Jefferson County Grand Jury,
1
Murrell is referred to throughout the record as both
(continued...)
Indictment No. 93-CR-0206, for a series of armed robberies
involving a food mart, several fast food restaurants, an
individual, and employees of the Citizen's Fidelity Bank, which
occurred from September 13, 1992 to December 4, 1992.
In that
indictment, Brown was charged with eight counts of first-degree
robbery.
On July 8, 1993, Brown and Murrell were indicted by the
Jefferson County Grand Jury, Indictment No. 93-CR-1490, on
charges of first-degree robbery, third-degree assault, firstdegree escape, promoting contraband, and six counts of firstdegree wanton endangerment.
On August 18, 1993, Brown moved to enter a guilty plea
under both indictments.
The charge of first-degree robbery in
Indictment No. 93-CR-0206 concerning the bank employees was not
included in the plea agreement, and became the basis for a
federal bank robbery charge.
The Commonwealth's offer on a plea
of guilty recommended a total sentence of 42 years, with said
sentence to "run concurrently with federal sentence", in exchange
for Brown's guilty plea to seven of the eight counts of firstdegree robbery charged in Indictment No. 93-CR-0206, and one
count of first-degree robbery, third-degree assault, first-degree
escape, promoting contraband, and six counts of the amended
charge of second-degree wanton endangerment charged in Indictment
No. 93-CR-1490.
1
(...continued)
"Murrell" and "Murrell-Bey".
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On August 23, 1993, the court entered its judgment of
conviction and sentence,2 finding Brown guilty of six counts of
first-degree robbery under Indictment No. 93-CR-0206, and firstdegree robbery, third-degree assault, first-degree escape,
promoting contraband, and six counts of second-degree wanton
endangerment as amended under Indictment No. 93-CR-1490.
The
court sentenced Brown to a total of 42 years' imprisonment as
recommended, but failed to state that the sentence was to run
concurrently with the federal sentence.3
Following the state proceedings, on February 17, 1994,
Brown pled guilty under two indictments, CR-93-00121-01-L(J) and
CR-94-00015-01-L(J), in the United States District Court for the
Western District of Kentucky, to aiding and abetting bank
robbery, use of a firearm in commission of a crime, and
carjacking.
Judgment was entered on September 6, 1994, with
Brown sentenced to a total of 160 months.
ordered the federal sentence
The federal court
"to be served consecutively to the
state sentences presently being served."4
2
In 95-CA-2170-MR, rendered May 16, 1997, this Court
affirmed the judgments of conviction and sentence of Brown and
Murrell.
3
Co-defendants Ingram and Murrell also entered guilty pleas
pursuant to plea agreements which provided that their state and
federal sentences would run concurrently. Ingram's and Murrell's
judgments of conviction and sentence, entered August 24, 1993 and
October 7, 1993, respectively, did include language to the effect
that their state sentences would run concurrently with their
pending federal sentences.
4
Murrell was sentenced in federal court to a total of 152
months to be served consecutively to his state sentence.
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On April 30, 1996, the Franklin Circuit Court denied
Brown and Murrell's petition for a writ of mandamus on grounds
that their judgments of conviction did not state a specific
federal sentence with which the state sentences were to run
concurrently, as required by KRS 532.115 in order for such
sentences to run concurrently.5
Brown and Murrell appealed, and
this Court affirmed, on grounds that a proceeding for a writ of
mandamus or prohibition was not appropriate under the facts
presented.
We stated that the correct procedure would be to file
motions pursuant to RCr 11.42 in the court where the pleas were
given, since if it is shown that the sentences should be vacated,
it is in that court where it should be done.6
In a letter sent by Brown to the Jefferson Circuit
Court, dated July 18, 1996, Brown informed the court that the
plea agreement to run his state sentence concurrent with his
federal sentence was not fulfilled, and requested an affidavit
from the court and the Commonwealth Attorney that the state and
federal sentences were to run concurrently per the plea
agreement.
In response, in a letter dated July 30, 1996, the
court stated that it would follow the Commonwealth's
5
The Franklin Circuit Court's April 30, 1996 order stated,
in part, "Because the Jefferson Circuit Court did not clearly
indicate that Durand Murrell-Bey's sentence is to run concurrent
with a specific federal sentence, we find that Corrections has
not erred in refusing to transfer Petitioner Murrell to federal
jurisdiction. Likewise, given the complete lack of any
indication by the trial court that it intended to run Robert Lee
Brown's state court conviction concurrent with a specific federal
conviction, we see no error in Corrections’ refusal to transfer
Petitioner Brown."
6
Consolidated appeals 96-CA-1602-MR, 96-CA-2442-MR, 96-CA2537-MR, 97-CA-0246-MR, rendered November 26, 1997.
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recommendation that the state and federal sentences run
concurrently, and that the correct procedure would be for Brown
to file a motion to amend the judgment of conviction entered on
August 23, 1993.7
On August 15, 1996, Brown filed a "Motion to Clarify
and Enforce Judgment".
On August 20, 1996, the court entered an
order which stated, in part:
The Court further ORDERS that the Defendant's
sentence under Indictment Nos. 93CR0206 and
93CR1490, shall run concurrent with his
Federal Sentence under Indictment Nos. CR-9300121-01-L(J) and CR-94-00015-01-L(J) by
Amended Judgment entered simultaneously with
this Order.
Further, the Defendant having requested the
Court to issue an Order to the Department of
Corrections to release him to Federal
Authorities, hereby finds that although the
Court has ordered Defendant's state sentence
to run concurrently with his federal
sentence, the site of the Defendant's
incarceration is at the discretion of the
Department of Corrections, or the Federal
Bureau of Corrections, when appropriate, and
therefore, IT IS FURTHER ORDERED that
Defendant's Motion for an Order releasing him
to Federal Authorities, be and the same is
hereby denied.
This is a final and appealable order, there
being no just cause for delay.
As stated in the order, on August 20, 1996, the court
entered an Amended Judgment of Conviction and Sentence to reflect
the plea agreement, adding the language that Brown's state
7
The letter stated, in part, "[T]his Court will follow the
recommendations of the Commonwealth, however, at the time the
guilty plea was entered, there was no plea on the Federal
Sentence. The Documentation from Federal Court, with the case
numbers, is necessary. KRS 532.115 states that the cases will
not run concurrent unless State and Federal case numbers are
specified."
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sentence "shall run concurrent with Federal time under Indictment
Nos. CR-93-00121-01-L(J) and CR-94-00015-01-L(J)."
Brown did not
appeal from the August 20, 1996 order.
On September 22, 1997, Brown filed a motion to vacate,
set aside or correct judgment pursuant to RCr 11.42.
Brown
contended that the plea bargain had not been fulfilled, as his
state sentence was not running concurrently with his federal
sentence because state authorities did not relinquish complete
custody of him to federal authorities.
Brown stated that the
only way for the plea agreement to be fulfilled is for him to be
released from state custody and placed in federal custody to
begin serving his federal sentence.
ineffective assistance of counsel.
held on August 13, 1999.
Brown additionally alleged
An evidentiary hearing was
On September 16, 1999, the court
entered an order denying the motion, stating, in pertinent part:
[C]learly KRS 532.115 authorizes a court to
run a state sentence concurrently "with any
federal sentence received by the defendant
for a federal crime." However, in August
1993 when Petitioner pled and was sentenced
in this court he had not yet "received" a
federal sentence. The federal sentences were
"received" over a year later in August 1994.
It is certainly questionable whether a state
sentence can be imposed concurrently with a
federal sentence where the defendant has not
yet pled in federal court much less received
a federal sentence.
In any event, in August 1996 Judge
McAnulty amended the judgment to provide for
concurrent sentences. This action fulfilled
the plea agreement to the extent a state
court could do so. At the same time Judge
McAnulty issued the above-quoted order noting
that the Petitioner's incarceration site was
a matter for state and federal correction
authorities and that "Defendant's Motion for
an Order releasing him to Federal
-6-
Authorities" would be denied. The record
reflects no appeal from that Order which
plainly stated: "This is a final and
appealable order, there being no just cause
for delay." Under these circumstances, this
Court is without jurisdiction and will not
revisit the issue. Petitioner's recourse
would appear to be in federal court--the only
venue, given the timing of the various
sentences, where Petitioner's objective could
have been achieved.
This appeal followed.
On appeal, Brown contends that the Commonwealth
violated the terms of the plea agreement by not running his
federal and state sentences concurrently as bargained for.
In
the alternative, Brown contends that his counsel was ineffective
for allowing him to enter a plea agreement which was impossible
to fulfill.
KRS 532.115 authorizes the court, in sentencing a
person convicted of a felony, to run the sentence concurrent with
any federal sentence received by that defendant for a federal
crime and any sentence received by that defendant in another
state for a felony offense.
"If the court does not specify that
its sentence is to run concurrent with a specific federal
sentence or sentence of another state, the sentence shall not run
concurrent with any federal sentence or sentence of another
state." (emphasis added).
KRS 532.115.
Brown's plea agreement and sentence, which provides for
the federal and state sentences to run concurrently, cannot be
performed because the state judgment imposing sentence was
entered prior to the federal sentence.
The federal judge made
the federal sentence consecutive to the state sentence, rather
than concurrent.
We have no authority over the federal judge or
-7-
any subsequent sentencing court which sentenced after our Court
sentenced.
See KRS 532.115; KRS 197.035.
Therefore, it was
error for the Jefferson Circuit Court to sentence Brown to
concurrent state and federal terms prior to his sentencing by the
federal court.
KRS 532.115.
Nevertheless, per the plea
agreement the sentences must be recognized to run concurrently.
Brock v. Sowders, Ky., 610 S.W.2d 591 (1980).
The government
should not be permitted to welsh on its bargain.
Workman v.
Commonwealth, Ky., 580 S.W.2d 206, 207 (1979), overruled on other
grounds, Morton v. Commonwealth, Ky., 817 S.W.2d 218 (1991).
Brown is currently in state custody.
We cannot dictate where a
prisoner should serve his time or which time should be served
first.
However, in order to enforce the plea agreement, we
believe the appropriate remedy is to vacate the sentence and
remand to the Jefferson Circuit Court in order to resentence
Brown, deducting his 160-month federal sentence from his 42-year
state sentence.
The net effect would be to recognize that the
federal sentence runs consecutive to the state sentence and the
total sentence would be 42 years, per the plea agreement.
For the aforementioned reasons, we affirm the guilty
plea, but reverse the sentence and remand to the Jefferson
Circuit Court for resentencing consistent with this opinion.
MILLER, JUDGE, CONCURS.
EMBERTON, JUDGE, DISSENTS.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Shaw
Richmond, Kentucky
A. B. Chandler, III
Attorney General
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
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