STEPHENS (THOMAS) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 29, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001783-MR
THOMAS STEPHENS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 08-CR-00206
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: CAPERTON, MOORE, AND VANMETER, JUDGES.
MOORE, JUDGE: Thomas Stephens, proceeding pro se, appeals the Fayette
Circuit Court’s order denying his motion to correct his sentence. After a careful
review of the record, we affirm because Stephens’s sentences are required to be
run consecutively.
Stephens entered a guilty plea to the charges of manufacturing
methamphetamine, first offense, and of being a second-degree persistent felony
offender (PFO). He was sentenced to serve ten years of imprisonment for the
manufacturing methamphetamine conviction, but that sentence was enhanced to
twenty years of imprisonment due to the PFO-2nd conviction. At the time of these
convictions, Stephens was on probation for prior felony convictions, and that
probation was revoked after he committed the offenses in this case.
Stephens filed an RCr1 11.42 motion to vacate, set aside, or correct his
sentence. In that motion, Stephens alleged that, pursuant to KRS2 533.040(3), his
new sentence should run concurrently with his prior sentences because his
probation on his prior sentences was not revoked within ninety days of the date
that the Department of Corrections became aware that he had violated his
probation.
The circuit court denied his motion. In doing so, the court
acknowledged that, based on the plain language of the statute (i.e., KRS
533.040(3)), Stephens was correct in his assertion. However, the court found that
KRS 533.060(2) directed a different result because that statute provides that
“sentences may not run concurrently for any sentence received on a subsequent
felony offense while an individual is released on parole, probation, shock
probation, or conditional discharge pursuant to a prior felony conviction.” The
1
Kentucky Rule of Criminal Procedure.
2
Kentucky Revised Statute.
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court also noted that, even though it seems that the two statutes conflict with each
other, the Kentucky Supreme Court addressed this issue in Brewer v.
Commonwealth, 922 S.W.2d 380 (Ky. 1996). The circuit court stated that, in
Brewer, the Supreme Court held that because “KRS 533.060(2) was enacted after
KRS 533.040, ‘the law of statutory construction mandates that KRS 533.060
control.’” Therefore, the circuit court held that in Stephens’s case, “KRS 533.060
mandates that the felony sentence [Stephens] received must be consecutive to other
felony sentences, despite the fact that [Stephens’s] probation was not revoked
within the statutory period.”
Approximately seven months later, Stephens filed a motion in the
circuit court that he titled: “Ky. R. Civ. P. (CR) 60.02 Motion to Correct
Sentence.” In that motion, he again argued that, pursuant to KRS 533.040(3), his
sentences should run concurrently rather than consecutively. He asked the circuit
court to set a hearing date on the matter or to send him notice that the court denied
his motion so that he could appeal it.
The circuit court entered another order stating that Stephens had filed
the exact same motion previously and the court had denied that motion. The court
then held that because it was not presented with any additional information to
support the present motion, the motion was again denied.
Stephens now appeals, contending that he did not receive the circuit
court’s order on his first motion to correct his sentence until after he filed his
notice of appeal in this case. Stephens continues to allege that, pursuant to KRS
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533.040(3) and Gavel v. Commonwealth, 674 S.W.2d 953 (Ky. 1984), his
sentences may be run concurrently.
The Commonwealth argues, inter alia, that Stephens’s second motion
to correct his sentence, which was filed after the circuit court initially denied his
RCr 11.42 motion to correct his sentence, was a CR 60.02 motion that was
properly denied because CR 60.02 relief cannot be granted for a claim that could
have been presented by direct appeal or in RCr 11.42 proceedings. The
Commonwealth also argues that, pursuant to KRS 533.060(2) and Brewer,
Stephens’s sentences were required to be run consecutively, and that Stephens’s
reliance on Gavel is misplaced.
As an initial matter, we note that although Stephens’s second motion
to correct his sentence was brought under CR 60.02, it appears from a review of
the circuit court record that he was not notified of the court’s order denying his
first motion to correct his sentence under RCr 11.42 before he filed his CR 60.02
motion. Specifically, the court’s docket sheet does not state that the parties were
notified of the entry of the court’s order denying Stephens’s first motion to correct
his sentence before he filed his second motion more than seven months later.
Further, Stephens filed both of those motions pro se, and in his second motion, he
asked for “a court date to settle this matter, or a notice of overruling so he may
address this issue to the Kentucky Court of Appeals.” (Capitalization changed).
Therefore, although his second motion was styled as a CR 60.02 motion, because it
appears he was not notified of a ruling on his first motion before filing his second
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motion, we will treat the current appeal as an appeal from an order denying his
RCr 11.42 motion.
In a motion brought under RCr 11.42, “[t]he movant has the burden of
establishing convincingly that he or she was deprived of some substantial right
which would justify the extraordinary relief provided by [a] post-conviction
proceeding. . . . A reviewing court must always defer to the determination of facts
and witness credibility made by the circuit judge.” Simmons v. Commonwealth,
191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v.
Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is
“limited to issues that were not and could not be raised on direct appeal.” Id.
Stephens contends that, pursuant to KRS 533.040(3) and Gavel, his
sentences may be run concurrently. Kentucky Revised Statute 533.040(3) provides
as follows:
A sentence of probation or conditional discharge shall
run concurrently with any federal or state jail, prison, or
parole term for another offense to which the defendant is
or becomes subject during the period, unless the sentence
of probation or conditional discharge is revoked. The
revocation shall take place prior to parole under or
expiration of the sentence of imprisonment or within
ninety (90) days after the grounds for revocation come to
the attention of the Department of Corrections,
whichever occurs first.
However, another statute, KRS 533.060(2), states:
When a person has been convicted of a felony and is
committed to a correctional detention facility and
released on parole or has been released by the court on
probation, shock probation, or conditional discharge, and
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is convicted or enters a plea of guilty to a felony
committed while on parole, probation, shock probation,
or conditional discharge, the person shall not be eligible
for probation, shock probation, or conditional discharge
and the period of confinement for that felony shall not
run concurrently with any other sentence.
As the Kentucky Supreme Court noted in Brewer, “[t]he two statutes
clearly contradict if read in conjunction. . . . Since KRS 533.060 was enacted in
1976, and KRS 533.040 was enacted in 1974, the former controls.” Brewer, 922
S.W.2d at 382. Therefore, KRS 533.060 is the controlling statute and, according to
that statute, Stephens’s sentences were not permitted to be run concurrently.
As for Stephens’s argument that his sentences also should have been
run concurrently pursuant to Gavel, in Gavel, the Kentucky Supreme Court held
that KRS 533.060(2) was inapplicable to that case, which involved the issue of
whether federal and state sentences should be run concurrently or consecutively.
However, the present case does not involve a federal sentence and, therefore,
Gavel is distinguishable from the present case. See also Brewer, 922 S.W.2d at
382 (holding that Gavel was distinguishable from the facts of Brewer because
Gavel “involved the interplay between federal and state jurisdiction.”).
Consequently, pursuant to Brewer and KRS 533.060(2), Stephens’s argument that
his sentences should have been run concurrently, rather than consecutively, lacks
merit, and the circuit court did not err in denying Stephens’s motion to correct his
sentence under RCr 11.42.
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Alternatively, even if we were to analyze the present appeal as an
appeal from an order denying a CR 60.02 motion, Stephens’s claim would fail. On
appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. “A
movant is not entitled to a hearing on a CR 60.02 motion unless he affirmatively
alleges facts which, if true, justify vacating the judgment and further allege[s]
special circumstances that justify CR 60.02 relief.” White v. Commonwealth, 32
S.W.3d 83, 86 (Ky. App. 2000) (internal quotation marks and citation omitted).
“Civil Rule 60.02 is not intended merely as an additional opportunity
to relitigate the same issues which could reasonably have been presented by direct
appeal or RCr 11.42 proceedings.” McQueen v. Commonwealth, 948 S.W.2d 415,
416 (Ky. 1997) (internal quotation marks omitted). Civil Rule 60.02 “is not a
separate avenue of appeal to be pursued in addition to other remedies, but is
available only to raise issues which cannot be raised in other proceedings.” Id.
Thus, if we were to analyze the present appeal as an appeal from the
denial of a CR 60.02 motion, because Stephens could have and, in fact, did raise
his CR 60.02 claim in a prior RCr 11.42 motion, the circuit court did not abuse its
discretion in denying his CR 60.02 motion.
Accordingly, the order of the Fayette Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas Stephens, pro se
West Liberty, Kentucky
Jack Conway
Attorney General of Kentucky
David B. Abner
Assistant Attorney General
Frankfort, Kentucky
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