INGRAM (TERRY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 8, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000463-MR
TERRY INGRAM
v.
APPELLANT
APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE ROBERT G. JOHNSON, JUDGE
ACTION NO. 08-CR-00009
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: COMBS AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE.
MOORE, JUDGE: On March 4, 2009, the Scott Circuit Court sentenced the
Appellant, Terry Ingram, to a two-year term of imprisonment, probated for a
period of five years, pursuant to Ingram’s guilty plea regarding a felony charge of
flagrant non-support in the case at bar, 08-CR-00009.
1
Senior Judge Sheila R. Issac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
21.580.
Thereafter, Ingram’s probation in an unrelated matter was revoked.
That unrelated matter, designated 06-CR-00048, originated from a misdemeanor
conviction for various drug offenses. The revocation of his probation in that
matter resulted in Ingram’s incarceration for a period of twelve months, which
began on July 6, 2009.
On September 17, 2009, Ingram moved the circuit court to revoke his
probation relating to his felony sentence for flagrant non-support. In response, the
circuit court entered an order on October 7, 2009, which states:
This matter came before the Court on October 5, 2009,
upon the Motion of Probation and Parole to revoke the
Defendant’s probation[2], and it appearing to this Court
that sufficient grounds exist to revoke the Defendant’s
probation, and the Court being sufficiently advised,
hereby revokes the Defendant’s probation and imposes
his sentence of 2 years, to be served concurrently with
any other sentence. The Defendant was credited with 38
days of jail credit at the time of initial sentencing. The
Defendant is further granted 0 days of additional jail
credit against his sentence, effective October 5, 2009.
On December 10, 2009, Ingram moved the circuit court to credit 91
days of jail time against his two-year sentence in 08-CR-00009. This figure
represented the total number of days between the date he was incarcerated for his
twelve-month sentence for his misdemeanor conviction and the effective date that
the circuit court revoked his probation in the instant matter. Ingram argued that
pursuant to Kentucky Revised Statutes (KRS) 197.035(2) and 532.110(1)(a), his
2
The only motion to revoke Ingram’s probation, contained in the record of this matter, was filed
by Ingram.
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two-year sentence should be deemed to have begun on July 6, 2009, the date he
began serving his twelve-month sentence in 06-CR-00048.
The circuit court denied Ingram’s motion for custody credit. In a
January 25, 2010 order, the circuit court stated:
It is well established that a defendant is not automatically
entitled to jail time credit for time spent in custody upon
another charge. See Lemon v. Corrections Cabinet, 712
S.W.2d 370, 371 (Ky. Ct. App. 1986). While KRS
532.110(1) requires that Ingram’s sentences run
concurrent, KRS 532.120(3) only mandates that he
receive jail time credit for time spent in custody as a
result of the charge for which he is incarcerated. Id. The
determination of whether to give credit on one charge for
time served as a result of another charge lies within the
sound discretion of the trial court. Id. Here, the jail time
for which Ingram seeks credit on the charge in 08-CR00009 was actually served as a result of his probation
being revoked and him [sic] being sentenced to serve the
twelve months on the charge in 06-CR-00048. No holder
or warrant was ever placed on Ingram’s 08-CR-00009
case while the 06-CR-00048 case was pending.
Therefore, contrary to Ingram’s assertions, the Court is
not required to give Ingram the credit he seeks and may
in its discretion deny his request. Given the fact that
these cases are separate and distinct, the jail time credit
for 06-CR-00048 should not be applied to 08-CR-00009.
This appeal followed, and Ingram restates the argument he posed
before the circuit court. Ingram’s argument is well taken, and we now reverse the
circuit court’s decision to deny the credit he requested.
The face of the circuit court’s order reflects three errors. First, the
circuit court mistakenly assumed that Kentucky law required Ingram’s sentences in
06-CR-00048 and 08-CR-00009 to run concurrently, without exception. It is true,
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as the circuit court’s order recites, that KRS 532.110(1)(a) generally requires that
“[a] definite and indeterminate term,” such as Ingram’s two sentences herein,
“shall run concurrently.” However, KRS 533.040(3) provides a notable exception
to this rule in cases, such as this, where probation is revoked. See Warren v.
Commonwealth, 981 S.W.2d 134, 136 (Ky. App. 1998). KRS 533.040(3) states:
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.
(Emphasis added.)
There was certainly nothing improper about the circuit court’s
decision to run Ingram’s sentence in 08-CR-00009 concurrently with his sentence
in 06-CR-00048, even if it believed that KRS 532.110(1)(a) mandated this result.
However, the circuit court labored under a misapprehension if 1) this was its sole
reason for running these sentences concurrently; and if 2) it had revoked Ingram’s
sentence of probation in 08-CR-00009 within the 90-day period required by KRS
533.040(3). If the circuit court had revoked Ingram’s probation within the 90-day
period required by KRS 533.040(3), the circuit court had the option of ordering
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Ingram’s sentences to run concurrently or consecutively.3 Warren, 981 S.W.2d at
136.
Second, the circuit court mistakenly relied upon KRS 532.120(3) and
Lemon v. Corrections Cabinet, 712 S.W.2d 370 (Ky. App. 1986), in its resolution
of this matter. KRS 532.120(3) provides:
Time spent in custody prior to the commencement of a
sentence as a result of the charge that culminated in the
sentence shall be credited by the court imposing sentence
toward service of the maximum term of imprisonment. If
the sentence is to an indeterminate term of imprisonment,
the time spent in custody prior to the commencement of
the sentence shall be considered for all purposes as time
served in prison.
Additionally, the portion of Lemon, 712 S.W.2d at 371, to which the
trial court referred in its order, merely provides that
KRS 532.120(3) is only mandatory if the accused spends
time in custody relating to a charge which ultimately
culminates in a conviction. Therefore, a trial court is not
usually required to give credit for time served as a result
of other charges. However, such credit lies within the
sound discretion of the trial court, which remains free to
impose any sentence otherwise authorized by statute.
KRS 532.120(3) is not at issue in the present matter because Ingram is
not seeking jail credit for time served on the same offense, and he is not seeking to
credit time that he served in jail between a charge and an ultimate conviction of
one offense to a sentence he must serve on another offense. Moreover, KRS
532.120(3) does not preclude giving credit for time served for purposes of
3
The record is silent regarding whether the circuit court revoked Ingram’s probation in 08-CR00009 within the required 90-day period. But, because the circuit court ordered Ingram’s
sentences to run concurrently, this point is not relevant to our resolution of Ingram’s appeal.
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remedying a sentencing error. Prather v. Commonwealth, 301 S.W.3d 20, 23 (Ky.
2009). And, the upshot of Ingram’s argument is that he was entitled to credit due
to a sentencing error.
This leads to the third error contained in the circuit court’s January 25,
2010 order. The issue in this matter is when the term of Ingram’s two sentences
actually began. Ingram is arguing that when the circuit court ordered his sentence
in 08-CR-00009 to run concurrently with the sentence he was already serving in
06-CR-00048, the circuit court’s order had the legal effect of causing the term of
his sentence in 08-CR-00009 to relate back in time to the date when his sentence in
06-CR-00048 started.
In Brock v. Sowders, 610 S.W.2d 591, 592 (Ky. 1980), the Supreme
Court of Kentucky stated:
When sentences are to run concurrently—when do they
start and when do they end? The Kentucky legislature
has provided answers. KRS 197.035(2) states: If the
additional sentence is designated to be served
concurrently . . . (a confined prisoner) shall be considered
as having started to serve said sentence on the day he was
committed on the first sentence.
When the circuit court revoked Ingram’s probation in 08-CR-00009,
and ordered Ingram to serve the resulting two-year sentence “concurrently with
any sentence,” Ingram was, at that time, 1) a confined prisoner; and 2) serving
another sentence. Therefore, the starting date of his two-year sentence was the
same as the starting date of his twelve-month sentence, i.e., July 6, 2009. Thus,
when the trial court denied Ingram’s motion for jail credit on his two-year sentence
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for the period between July 6, 2009, and October 5, 2009, the circuit court
committed reversible error.
The Commonwealth urges that Ingram’s sentence in 08-CR-00009,
which was designated to run concurrently with his earlier sentence, 06-CR-00048,
should not relate back to the same starting date because these respective sentences
are based upon “separate and distinct” offenses, i.e., Ingram’s sentence in 08-CR00009 was imposed for flagrant non-support, while his sentence relating to 06-CR00048 was based upon various drug offenses. The trial court’s January 25, 2010
order also justified its result by relying upon this fact. Ironically, this argument
was precisely the thrust of Justice Wintersheimer’s dissent in a case strikingly on
point with the one at bar, Lienhart v. Commonwealth, 953 S.W.2d 70 (Ky. 1997).
In Leinhart, the appellant was convicted of receiving stolen property
and second-degree burglary on January 13, 1987, and received a five-year
sentence. Id. On October 31, 1989, while he was still incarcerated, the appellant
was convicted and received a one-year sentence for promoting contraband in the
first degree. Id. The Kentucky Supreme Court reasoned that because the judgment
relative to the latter sentence was silent as to whether the sentence was to run
concurrently or consecutively with the five-year sentence he was already serving,
KRS 532.110 required the two sentences to run concurrently. Id. at 71.
Consequently, the Court reasoned:
It is apparent from the language of Brock[610 S.W.2d at
592] and KRS 197.035(2), that Appellant’s one-year
sentence must be deemed to have commenced at the
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same time he began serving his five-year sentence,
specifically in 1987. See also Rodger v. Wingo, Ky., 467
S.W.2d 369 (1971)-(A second judgment which provides
that the sentence shall run concurrently with a prior
sentence accords the convicted defendant the right to
have the time served on the first sentence credited against
the second sentence.) As such, the one-year sentence
expired in 1988[.]
Id.
Justice Wintersheimer lamented the majority’s conclusion that
Leinhart had completed his one-year sentence for promoting contraband a year
before he had received that sentence. He argued that the starting date of the
appellant’s sentence for promoting contraband should not relate back to the first
date of the five-year sentence because “The conviction on promoting contraband in
the first degree was separate and distinct from any other prior conviction despite
the fact that this sentence ran concurrent with the sentence of January 13, 1987.”
Id. at 72 (emphasis added).
Here, the Commonwealth’s argument substantially repeats Justice
Wintersheimer’s dissent in Leinhart. We are bound, however, by Leinhart’s
majority opinion to the contrary.
For these reasons, the January 25, 2010 order of the Scott Circuit
Court is REVERSED.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shannon Dupree
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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