TIMOTHY TAYLOR MITCHELL v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 27, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-002597-MR
TIMOTHY TAYLOR MITCHELL
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 92-CR-00602
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; MOORE AND NICKELL, JUDGES.
COMBS, CHIEF JUDGE: Timothy Taylor Mitchell appeals an order of the Fayette
Circuit Court denying his post-judgment motion for relief. Finding no error, we affirm.
In June 1992, Mitchell and his cousin were arrested in connection with the
abduction and rape (perpetrated on separate occasions) of two Lexington women.
Mitchell was also charged at this time in connection with burglary and the rape of a third
woman. At trial, the jury heard scientific evidence linking DNA specimens recovered
from each of the three victims to DNA samples collected from Mitchell. The jury also
heard Mitchell’s taped confession as well as his live confession from the witness stand.
Following deliberations, the jury found Mitchell guilty of two counts of rape in the first
degree; two counts of complicity to commit rape in the first degree; three counts of
sodomy in the first degree; one count of complicity to sodomy in the first degree; one
count of sexual abuse in the first degree; two counts of kidnapping; one count of burglary
in the third degree; one count of burglary in the second degree; and two counts of theft by
unlawful taking over $100.00.
On January 24, 1994, the trial court sentenced Mitchell to serve two
hundred twenty-five years (225) in the penitentiary. His conviction and sentence were
affirmed by the Supreme Court of Kentucky.
In May 1997, Mitchell filed his first motion for relief pursuant to the
provisions of Kentucky Rules of Criminal Procedure (RCr) 11.42. The trial court
rejected this collateral attack in its order of September 10, 1997. Mitchell filed an appeal
from that order, but a panel of this court dismissed the action because he failed to file an
appellate brief.
In April 2000, Mitchell filed a second motion for relief. In a written order,
the trial court summarily denied the motion as being an impermissible successive RCr
11.42 motion. This court affirmed in an opinion rendered in November 2001.
In August 2002, Mitchell filed another post-judgment motion for relief. In
this motion, Mitchell requested the trial court to amend his 225-year sentence as it
exceeded the maximum aggregate sentence authorized by the provisions of KRS 532.1101
1
KRS 532.110(1) provides, in pertinent part as follows:
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and 532.0802 as amended in 1998. The trial court denied the motion for relief, and
Mitchell did not appeal.
In November 2005, Mitchell filed another post-judgment motion for relief,
which is the subject of this appeal. The trial court considered Mitchell’s motion on its
merits and concluded that the 1998 amendments to the penal code did not affect
Mitchell’s sentence. The court concluded that Mitchell had been properly sentenced in
1994 under the law that made life imprisonment the only limit to the aggregate of
multiple indeterminate prison sentences for felony convictions. Consequently, the court
declined to grant the relief Mitchell sought. This appeal followed.
When multiple sentences of imprisonment are imposed on a defendant
for more than one (1) crime, including a crime for which a previous
sentence of probation or conditional discharge has been revoked, the
multiple sentences shall run concurrently or consecutively as the court
shall determine at the time of sentence, except that:
(c) The aggregate of consecutive indeterminate terms shall not exceed in
maximum length the longest extended term which would be authorized
by KRS 532.080 for the highest class of crime for which any of the
sentences is imposed. In no event shall the aggregate of consecutive
indeterminate terms exceed seventy (70) years.
2
KRS 532.110(1) requires that KRS 532.080 be used to establish the maximum aggregate sentence for a
person convicted of multiple offenses without regard to whether the penalties for those offenses have
been enhanced. See Commonwealth v. Durham, 908 S.W.2d 119 (Ky. 1995). When KRS 532.080 is
applied to determine the maximum aggregate penalty as opposed to being used to enhance a penalty
where the underlying felonies are Class A or Class B felonies, KRS 532.080(6)(a) governs:
If the offense for which he presently stands convicted is a Class A or
Class B felony . . . a persistent felony offender in the first degree shall be
sentenced to an indeterminate terms of imprisonment, the maximum of
which shall not be less than twenty (20) years nor more than fifty (50)
years, or life imprisonment. . . .
[Text as amended 1998 Ky. Act Chapter 505 § 76.]
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On appeal, Mitchell argues that the trial court erred by failing to amend his
sentence to conform to the sentencing ranges established by the 1998 amendments to
KRS 532.110 and KRS 532.080. While Mitchell concedes that the provisions were
amended by the legislature after his sentencing, he argues that they should apply
retroactively to limit his sentence to a term of no more than fifty years. We conclude that
Mitchell is not entitled to the relief he seeks either on procedural or substantive grounds.
Mitchell's motion of November 2005 requested relief on the same basis
that he had argued in the motion of August 2002. His failure to appeal from the denial of
the 2002 motion operates as a procedural bar to the prosecution of the subsequent motion
at issue in this appeal. Furthermore, we agree with the trial court that the motion was not
timely filed. The motion at issue in this appeal was filed some seven years after the
relevant amendments were enacted by the legislature, and Mitchell has shown no
justification for his delay in raising the issue.
Nevertheless, even if we were to address the substantive issue raised in
Mitchell’s motion for relief, the result would be no different. Neither the 1998
amendments to KRS 532.080 nor the 1998 amendments to 532.110 were expressly made
retroactive. Under the provisions of KRS 446.080(3), no statute can be construed to be
retroactive unless expressly declared to be so by the legislature. KRS 446.110, cited by
Mitchell, does not afford relief as he urges. KRS 446.110 provides as follows:
No new law shall be construed to repeal a former law as to
any offense committed against a former law, nor as to any act
done, or penalty, forfeiture or punishment incurred, or any
right accrued or claim arising under the former law, or in any
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way whatever to affect any such offense or act so committed
or done, or any penalty, forfeiture or punishment so incurred,
or any right accrued or claim arising before the new law takes
effect, except that the proceedings thereafter had shall
conform, so far as practicable, to the laws in force at the time
of such proceedings. If any penalty, forfeiture or punishment
is mitigated by any provision of the new law, such provision
may, by the consent of the party affected, be applied to any
judgment pronounced after the new law takes effect.
(Emphasis added). Mitchell’s sentence was pronounced four years before the 1998
amendments to the sentencing statutes were enacted. No portion of his judgment was
pronounced after the effective date of the 1998 amendments. This statute is, therefore, of
no relevance.
Because Mitchell’s argument is barred on procedural grounds and lacks
substantive merit as well, we affirm the order denying his motion for relief.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Timothy T. Mitchell
LaGrange, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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