CRAWFORD (JEROME) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 28, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001052-MR
JEROME CRAWFORD
v.
APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN L. WILSON, JUDGE
ACTION NO. 00-CR-00054
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND CLAYTON, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
BUCKINGHAM, SENIOR JUDGE: Jerome L. Crawford appeals pro se from an
order of the Henderson Circuit Court denying his motion for shock probation
pursuant to KRS 439.265. We affirm.
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
At the conclusion of a trial, a jury found Crawford guilty of firstdegree manslaughter. The trial court sentenced him to ten years’ imprisonment.
The final judgment was entered on November 1, 2000. Crawford filed an appeal
of his conviction and sentence, but this Court later dismissed the appeal at
Crawford’s request. Additionally, on December 8, 2000, Crawford filed a motion
for shock probation, which the trial court summarily denied.
In March 2002, Crawford filed a motion to correct judgment and
sentence pursuant to Kentucky Rules of Civil Procedure (CR) 60.02, arguing that
he had been incorrectly classified as a violent offender and required to serve 85%
of his sentence before being eligible for parole. Crawford claimed that the
domestic violence exception in KRS 439.3401 applied in his situation and that he
should be eligible for parole after having served 20% of his sentence. The trial
court denied the motion on the basis that Crawford did not fall within the
parameters of KRS 439.3401. Crawford appealed the court’s decision, but the
appeal was subsequently dismissed due to Crawford’s failure to file a brief.
On March 3, 2009, Crawford filed a “Motion to Suspend Further
Execution of Sentence Pursuant to KRS 439.265,” asking the court to place him on
shock probation because he had served 85% of his sentence. The trial court denied
the motion, finding that it was untimely under the language of KRS 439.265(1).
This appeal followed.
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KRS 439.265(1) states that a motion for shock probation may be
made:
not earlier than thirty (30) days nor later than one
hundred eighty (180) days after the defendant has been
incarcerated in a county jail following his conviction and
sentencing pending delivery to the institution in which he
has been sentenced, or delivered to the keeper of the
institution to which he has been sentenced[.]
Moreover, “Kentucky Courts require strict compliance with the time limits
imposed by KRS 439.265(1) for filing a motion for shock probation.” Terhune v.
Commonwealth, 907 S.W.2d 779, 782 (Ky. App. 1995) (citing Commonwealth ex
rel. Molloy v. Meade, 554 S.W.2d 399, 401 (Ky. App. 1977), and Commonwealth
ex rel. Hancock v. Melton, 510 S.W.2d 250, 252 (Ky. App. 1974)). Although KRS
439.265(2) precludes review of the denial of shock probation, this Court has held
that appellate review is proper to determine the trial court’s jurisdiction to grant
shock probation, as opposed to a challenge on the merits. See Melton, 510 S.W.2d
at 252.
On the question of jurisdiction, it is clear that the motion was not filed
within the statutory time period and that any order entered by the trial court
granting shock probation would have been outside of its jurisdiction. See Melton,
510 S.W.2d at 250, and Schroering v. McKinney, 906 S.W.2d 349 (Ky. 1995). The
time limits of KRS 439.265(1) are determined from the date of one of two events:
(1) when “the defendant has been incarcerated in a county jail following his
conviction and sentencing pending delivery to the institution to which he has been
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sentenced,” or (2) when the defendant is “delivered to the keeper of the institution
to which he has been sentenced[.]”
In this case, although the trial court used the incorrect date to
commence the calculation of the time period under KRS 439.265(1) – the date on
which the judgment became final rather than the date when Crawford was
delivered to the keeper of the institution to which he was sentenced – Crawford’s
motion for shock probation was untimely regardless of which date was used.
Crawford did not file his present request for shock probation until 2009, years after
the 180-day time limit had expired.
Furthermore, even if Crawford’s motion had been timely filed, the
trial court should nonetheless have denied it. KRS 439.265(4) provides that “[i]f
the defendant is a violent offender as defined in KRS 439.3401, the sentence shall
not be probated under this section.” KRS 439.3401(1)(c) includes within the
definition of a “violent offender” a person who has been convicted of “[a] Class B
felony involving the death of the victim[.]” KRS 507.030 provides that firstdegree manslaughter is a Class B felony. Thus, Crawford was not eligible for
shock probation, and his motion was properly denied even assuming it had been
timely filed.
Additionally, Crawford claims that his Fourteenth Amendment and
Due Process rights were infringed upon because the trial court misunderstood the
state of the law relating to the status and sentencing of criminal defendants. There
is no indication in the record of such a misunderstanding. Additionally, Kentucky
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courts have consistently held that there is no constitutional right to probation.
Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999).
It also appears that Crawford is claiming infringement of his
constitutional right to a fair hearing under the Fourteenth Amendment because the
trial court denied his motion for shock probation without a hearing. However,
KRS 439.265(2) clearly gives the trial court discretion on whether to conduct a
hearing on a motion for shock probation. There was no error.
The order of the Henderson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jerome L. Crawford, pro se
West Liberty, Kentucky
Jack Conway
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
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