BROWN (LINDSAY R.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 18, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001259-MR
LINDSAY R. BROWN
v.
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NOS. 06-CR-00382 & 06-CR-00677
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE : LAMBERT AND TAYLOR, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE: Lindsay R. Brown pled guilty to several crimes in two
separate criminal cases. On January 23, 2007, Brown pled guilty to the following
crimes in Case No. 06-CR-00677: (1) five counts of second-degree criminal
possession of a forged instrument (checks); (2) one count of receiving stolen
property under $300; and (3) one count of giving a false name (hereinafter “the
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Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
felony crimes case”). On May 8, 2007, Brown pled guilty to the following
misdemeanors in Case No. 06-CR-00382: (1) criminal facilitation to first-degree
possession of a controlled substance (marijuana); and (2) complicity to commit
possession of drug paraphernalia (hereinafter “the misdemeanor crimes case”).
At the time of Brown’s January 23, 2007, guilty plea in the felony
crimes case, charges in the misdemeanor crimes case were still pending. Brown
concedes that she committed the offenses in the felony crimes case while on bond
and awaiting trial for the pending charges set forth in the misdemeanor crimes
case. Brown entered an agreement with the Commonwealth whereby she would be
referred to and accepted into Felony Drug Court.
Pursuant to this agreement, if Brown did not successfully complete
drug court, she would be sentenced to a total of three years’ imprisonment for the
offenses in the felony crimes case. Brown further agreed that this three-year
sentence would run consecutively to any other sentence Brown may receive in any
other criminal proceedings, including but not limited to any sentence received in
the misdemeanor crimes case.
On May 8, 2007, Brown was sentenced as follows in the misdemeanor
crimes case: twelve months’ imprisonment to run consecutively to any sentence
imposed in the felony crimes case, with credit for time served and the balance of
the twelve-month sentence to be probated for a period of two years.
On February 19, 2008, the trial court entered an order determining
that Brown had violated the rules and conditions of Felony Drug Court. The trial
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court thereby expelled Brown from the program. Having failed to successfully
complete Felony Drug Court as required by the terms of her January 23, 2007, plea
agreement in the felony crimes case, the trial court revoked Brown’s conditional
discharge into the Felony Drug Court program and imposed the three-year sentence
of imprisonment set forth in the original plea agreement. The trial court further
determined that this three-year sentence of imprisonment imposed in the felony
crimes case was to run consecutively to any sentence imposed in the misdemeanor
crimes case.
On February 28, 2008, Brown’s probation in the misdemeanor crimes
case was revoked because she obtained new criminal charges and was terminated
from Felony Drug Court in the felony crimes case. She was therefore ordered to
serve out the remainder of her twelve-month sentence in prison, with said sentence
to run consecutively with the three-year sentence imposed in the felony crimes
case.
On June 17, 2008, Brown filed a pro se motion to run her twelvemonth misdemeanor sentence concurrently with the three-year felony sentence.
She cited Kentucky Revised Statutes (KRS) 532.060(1), which states that
sentences of imprisonment for felonies shall be indeterminate terms, and KRS
532.090, which states that sentences of imprisonment for misdemeanors shall be
definite terms. She further cited KRS 532.110(1)(a) which directs, “[a] definite
and an indeterminate term shall run concurrently and both sentences shall be
satisfied by service of the indeterminate term[.]”
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On June 18, 2008, the trial court denied Brown’s motion to run the
twelve-month sentence received in the misdemeanor crimes case concurrently with
the three-year sentence received in the felony crimes case. In its order, the trial
court stated that concurrent sentences were not required in the two cases since at
least one of the offenses committed by Brown was committed while she was on
bond and awaiting trial for the other offenses. A matter-of-right appeal from this
order now follows.
On appeal, Brown argues through counsel that the plain language of
KRS 532.110(1)(a) mandates that her sentence in the misdemeanor crimes case be
run concurrently with her sentence in the felony crimes case. However, the
Commonwealth argues that the controlling statute in this case is KRS 533.060(3)
which states:
When a person commits an offense while awaiting trial
for another offense, and is subsequently convicted or
enters a plea of guilty to the offense committed while
awaiting trial, the sentence imposed for the offense
committed while awaiting trial shall not run concurrently
with confinement for the offense for which the person is
awaiting trial.
In Commonwealth v. Hunt, 619 S.W.2d 733 (Ky. App. 1981), this
Court recognized that KRS 532.110(1) and KRS 533.060(2) are irreconcilable. Id.
at 734. Upon careful consideration, the Court determined that KRS 533.060(2)
controlled in situations where there is conflict between the two statutes. Id. Soon
thereafter, this ruling was extended to hold that in cases where either KRS
532.110(1)(a) or KRS 533.060(3) may apply to direct sentencing, KRS 533.060(3)
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shall control. Handley v. Commonwealth, 653 S.W.2d 165, 166 (Ky. App. 1983).
As the facts in this case are not distinguishable from the facts set forth in Handley,
supra, we agree with the Commonwealth that the language set forth in KRS
533.060(3) is controlling in this case.
Brown argues in her reply brief that the controlling case law should be
overruled. Having stood for over two decades, we see no compelling reason to
disturb case law which the legislature has not seen fit to disturb itself.
Accordingly, we hereby affirm the Hardin Circuit Court’s order
running Brown’s twelve-month misdemeanor sentence in Case No. 06-CR-00382
consecutively with the three-year felony sentence imposed in Case No. 06-CR00677 as directed by KRS 533.060(3).
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kathleen K. Schmidt
Lisa Bridges Clare
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General
John Paul Varo
Assistant Attorney General
Frankfort, Kentucky
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