KISER (DOUGLAS) 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NOT TO BE PUBLISHED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-001743-MR
DOUGLAS KISER
v.
APPELLANT
APPEAL FROM CARTER CIRCUIT COURT
HONORABLE REBECCA K. PHILLIPS, JUDGE
ACTION NO. 02-CR-00107
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND CLAYTON, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
BUCKINGHAM, SENIOR JUDGE: Douglas Kiser appeals pro se from an order
of the Carter Circuit Court denying his motion to run his sentences concurrently to
sentences he received in the Lewis Circuit Court. Kiser contends that since the
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.
judgments sentencing him were silent as to whether they would run concurrently or
consecutively with each other, they are required by KRS 532.110(2) to run
concurrently. We disagree and thus affirm.
On May 3, 2003, the Carter Circuit Court entered a final judgment
wherein Kiser was sentenced to three years in prison. On June 4, 2003, the court
granted shock probation to Kiser for a period of five years.
In August 2007, the Lewis Circuit Court sentenced Kiser to seven
years in prison. Based on these new convictions, on October 19, 2007, the Carter
Circuit Court revoked Kiser’s probation and ordered him remanded to the
Department of Corrections for the service of his earlier three-year sentence.
Neither the judgments of the Lewis Circuit Court nor the order of the Carter
Circuit Court revoking Kiser’s probation made any mention of whether the
sentences in one court would run concurrently or consecutively with the sentences
in the other court. According to Kiser’s brief, however, the Department of
Corrections has treated the sentences from the two courts as running consecutively
with each other despite no mention being made of this in the judgments and orders
themselves.
On May 21, 2009, Kiser filed a motion in the Carter Circuit Court
seeking an order that the three-year sentence from that court should run
concurrently to the seven-year sentence from the Lewis Circuit Court. Relying on
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KRS 533.060(2), the court denied the motion. That statute provides in relevant
part that when a person convicted of a felony and on probation is thereafter
convicted of a felony while on probation, then “the period of confinement for that
felony shall not run concurrently with any other sentence.” This appeal by Kiser
followed.
Kiser argues that KRS 532.110(2), not KRS 533.060(2), controls and
that concurrent sentencing is required. We disagree. KRS 532.110(2) reads in
relevant part: “If the court does not specify the manner in which a sentence
imposed by it is to run, the sentence shall run concurrently with any other sentence
which the defendant must serve[.]”
Kiser relies on the holding in Gavel v. Commonwealth, 674 S.W.2d
953 (Ky. 1984), and argues it provides that when KRS 533.060(2) and KRS
532.110(2) appear to require conflicting results, KRS 532.110(2) and the
requirement that the sentences are to run concurrently is the controlling statute.
Kiser has, however, neglected to consider an important distinction between that
case and his own.
In Gavel, the defendant was on probation after being convicted of
violations of state law. He then was convicted of violations of federal law. The
Kentucky Supreme Court held that “the trial court may run the state sentence
concurrently or consecutively with the federal sentence because KRS 533.060(2) is
not applicable to the facts in the present case.” 674 S.W.2d at 954. When
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considering the statute, the Supreme Court found the subsequent conviction
“would be the federal conviction, which the state court has no control over.” Id.
In a case with facts very similar to those herein, the Kentucky
Supreme Court has determined that even when separate judgments of conviction
are silent as to whether the sentences should run concurrently or consecutively, the
Department of Corrections has the authority and duty to run the sentences
consecutively. Riley v. Parke, 740 S.W.2d 934, 935-36 (Ky. 1987).2 The Riley
court also stated that “[a]lthough there facially appears to be a conflict between
KRS 532.110(2) and KRS 533.060(2), we hold that the latter controls.” Id. at 935.
Pursuant to KRS 533.060(2), Kiser’s original three-year sentence and the
subsequent seven-year sentence must be served consecutively. There was no error
in that determination by the Carter Circuit Court.
The order of the Carter Circuit Court denying Kiser’s motion for
concurrent sentencing is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Douglas Kiser, pro se
Lexington, Kentucky
Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky
2
We additionally recognize that the current version of KRS 532.110(2) includes language
specifically requiring consecutive sentences in situations governed by KRS 533.060(2).
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