RONALD L. HORN v. COMMONWEALTH OF KENTUCKY
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RENDERED:
February 18, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
NO.
NO.
NO.
2003-CA-002006-MR
2003-CA-002009-MR
2003-CA-002724-MR
2003-CA-002779-MR
RONALD L. HORN
APPELLANT
APPEAL FROM HENRY CIRCUIT COURT
HONORABLE PAUL W. ROSENBLUM, JUDGE
ACTION NO. 95-CR-00010
v.
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE PAUL W. ROSENBLUM, JUDGE
ACTION NO. 95-CR-00025
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, TACKETT, AND VANMETER, JUDGES.
TACKETT, JUDGE:
Ronald Horn appeals from the decisions of the
Henry Circuit Court and the Oldham Circuit Court denying his
petitions for extraordinary relief under RCr 11.42 and Civil
Rule 60.02.
Horn was on probation for sexual offenses in both
Henry and Oldham counties, and his probation in both counties
was revoked for new offenses in Oldham County.
Horn claimed in
his motion for relief that the Commonwealth did not properly
seek revocation of his probation within ninety days of the
grounds for revocation coming to light, and that his counsel was
ineffective for failing to object to the revocation on those
grounds.
The circuit court denied Horn's motion without
conducting an evidentiary hearing.
Because the applicable rule
allows the Commonwealth prosecutorial discretion to give notice
of a possible violation of probation to the Department of
Corrections, and because the revocation was ultimately based on
Horn's conviction of new charges as well as violation of the
terms of his probation, we affirm.
Horn pled guilty to charges of rape in the third
degree and sodomy in the third degree in Henry County, and
similar charges in Oldham County, in 1995.
His sentences on the
charges were to be served consecutively for a total of seventeen
years in prison.
He received shock probation in March 1996, and
the terms of his probation included not being alone with
juvenile females and not residing in a home with a juvenile
female.
In March 2001, before Horn's probationary period
expired, the Department of Corrections sought revocation of his
probation, referring to two indictments in Oldham County, each
charging two counts of sexual abuse in the first degree, and
also alleging that he had been alone with juvenile females.
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The
circuit court allowed a continuance at Horn's request to a date
beyond the expiration of his five-year probationary period, so
that Horn could obtain the testimony of out-of-state witnesses.
Horn waived the requirement of a warrant or summons and waived
any jurisdictional argument.
On May 10, 2001, Horn admitted the violations of his
probation after guilty pleas to two of the four new charges, for
which he received an additional five years in prison to be
served consecutively with the seventeen-year sentence in this
case.
No direct appeal was taken from the revocation of his
probation, but instead Horn filed a petition for extraordinary
relief under CR 60.02 and RCr 11.42 alleging that his counsel
was ineffective for failing to object to the Department of
Corrections' alleged failure to seek revocation within 90 days
of receiving notice of the violation.
Horn contends that the
Department could have, admittedly, used his guilty plea to the
new offenses as grounds for revocation, but also argues that
because the Department sought revocation before the guilty plea,
that it elected to proceed with the revocation using the
allegation rather than the conviction as grounds.
Because of
that, Horn argues, the Department should have acted within 90
days of the indictment being handed down.
The circuit court
rejected this argument, and this appeal follows.
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Horn cites a statute, Kentucky Revised Statute (KRS)
533.040(3), in support of his argument.
However, Horn's
argument has already been conclusively refuted by the Kentucky
Supreme Court in Sutherland v. Commonwealth, 910 S.W.2d 235 (Ky.
1995).
There, the court addressed a very similar argument that
the court was without authority to rule on a revocation of
probation when that ruling was made outside of the 90-day period
set by the statute.
The court concluded that the statute was
not designed to prevent any revocation after the expiration of
the 90-day period, but instead only required any sentence to be
run concurrently instead of consecutively if the revocation
occurs outside of the time frame specified in the statute.
The
court stated,
Reading KRS 533.040(3) within the context of
the entire legislative scheme, it appears to
be the legislative intent to require the
Department of Corrections to push for
revocation proceedings in a speedy manner,
if any subsequent term of sentence is to be
served consecutive to any time spent in
incarceration as a result of a revocation of
probation. Sutherland at 237 (citations
omitted.)
The court having interpreted the statute this way, we
are bound to reject Horn's argument.
The question of whether Horn's sentence must be run
concurrently, if the revocation was sought outside the 90-day
period, is resolved by Brewer v. Commonwealth, 922 S.W.2d 380
(Ky.App. 1996).
In Brewer, the Kentucky Supreme Court addressed
-4-
the question left by Sutherland of whether the requirement that
a probated sentence revoked after the expiration of the 90-day
period must be served concurrently with new charges or
consecutively as required by KRS 533.060.
The Brewer court held
that the latter statute, as it was enacted after 533.040(3), was
controlling, thus preventing any revoked probated sentence from
being run concurrent with a sentence upon a new conviction.
Since KRS 533.040(3) does not prevent a probation revocation
brought later than 90 days after the Department becomes aware of
the violation, and Brewer holds that KRS 533.060 prohibits a
sentence for new charges being run concurrently with a revoked
probated sentence, the circuit court's ruling was correct and
Horn's 60.02 motion was properly denied.
Likewise, since Horn's
counsel had no basis to object, he could not be ineffective for
not objecting to the revocation of probation or the decision to
run the sentences consecutively.
The judgment of the Oldham Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ronald L. Horn, Pro Se
Eddyville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky
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