LAURA L. WARREN v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 5, 1998; 10:00 a.m.
ORDERED PUBLISHED: July 31, 1998; 10:00 a.m.
NO.
96-CA-2920-MR
LAURA L. WARREN
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE RON DANIELS, JUDGE
ACTION NO. 95-CR-00023
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * * * *
BEFORE:
BUCKINGHAM, GARDNER and KNOX, JUDGES.
KNOX, JUDGE.
Laura Warren appeals from an order of the McCracken
Circuit Court entered on October 16, 1996, revoking her
conditional discharge on a misdemeanor offense and sentencing her
to serve twelve (12) months in the county jail consecutive to a
sentence for a felony offense.
We affirm.
On January 31, 1995, the McCracken County Grand Jury
indicted Warren in Case No. 95-CR-23 on one felony count of
Second-Degree Trafficking in a Schedule III Controlled Substance,
First Offense, Kentucky Revised Statute (KRS) 218A.1413.
On July
14, 1995, Warren entered a guilty plea to an amended misdemeanor
offense of Second-Degree Possession of a Controlled Substance,
KRS 218A.1416, pursuant to a plea agreement with the
Commonwealth, in which the Commonwealth agreed to recommend a
sentence of twelve (12) months, and further agreed to take no
position on probation.
On September 1, 1995, the circuit court
sentenced Warren to twelve (12) months, but it suspended service
of the sentence and placed her on conditional discharge for a
period of two years.
The requirements of the conditional
discharge included refraining from committing another offense and
avoiding injurious or vicious habits.
On January 23, 1996, the McCracken County Grand Jury
indicted Warren in Case No. 96-CR-28 on one felony count of Theft
by Unlawful Taking over $300.00 (KRS 514.030), one misdemeanor
count of Possession of Marijuana (KRS 218A.1422), and one
misdemeanor count of Possession of Drug Paraphernalia (KRS
218A.500(2)).
On June 28, 1996, Warren entered a guilty plea to
each of the three counts pursuant to a plea agreement with the
Commonwealth, but the trial court postponed sentencing.
On July
26, 1996, Warren appeared in court wherein the trial judge orally
sentenced Warren to serve two years on the felony offense and
twelve (12) months on each of the two misdemeanor offenses, all
to run concurrently for a total sentence of two years in prison.
The final judgment and sentence of imprisonment, however, was not
entered into the record until August 13, 1996.
Also on August 13, 1996, the circuit court issued a
bench warrant and order for Warren to show cause why her
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conditional discharge in Case No. 95-CR-23 should not be revoked
because of the conviction in Case No. 96-CR-28.
At the
revocation hearing held on October 11, 1996, Warren stipulated to
having violated the requirements of her conditional discharge,
but she asked the trial judge to run her twelve-month sentence in
95-CR-23 concurrently with her two-year sentence in 96-CR-28.
The circuit court denied the request, revoked her conditional
discharge and ordered that the twelve-month sentence run
consecutive to the two-year prison sentence.
This appeal
followed.
Warren presents the single issue on appeal whether the
trial court erred by ordering her to serve the misdemeanor
sentence consecutive to the felony sentence.
She raises two
arguments to support her position: 1) KRS 533.060 does not apply
to allow the circuit court to run a sentence for a misdemeanor
offense consecutive to a sentence for a felony offense; and 2)
KRS 533.040(3) required the circuit court to run the reinstated
misdemeanor sentence concurrently because the revocation of her
conditional discharge occurred more than ninety (90) days after
the grounds for revocation came to the attention of the
Department of Corrections.
Warren argues that the issue as to whether a revoked
sentence must run consecutively or concurrently is governed by
KRS 533.060 and KRS 533.040.
She further contends that KRS
533.060 dictates when a revoked sentence must run consecutively
and KRS 533.040 dictates when a revoked sentence must run
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concurrently.
Warren correctly points out that the language of
KRS 533.060(2)1 appears to require that any sentence received for
a felony conviction committed while on probation for a prior
felony conviction must be served consecutively to any other
felony sentence.
In Harris v. Commonwealth, Ky. App., 674 S.W.2d
528 (1984), the court held that KRS 533.060(2) did not apply to a
situation involving revocation of probation or conditional
discharge of a misdemeanor sentence based on the commission of a
felony offense while on probation for the misdemeanor offense.
Thus, we agree with Warren that KRS 533.060(2) does not apply in
this case, but this fact does not justify the relief requested by
appellant.
First, KRS 533.060 is not exclusive in setting out the
requirements for running a revoked sentence consecutive to
another sentence.
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
1
KRS 533.060(2) provides:
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 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.
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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.
In Snow v. Commonwealth, Ky. App., 927 S.W.2d 841 (1996), the
court held that KRS 533.040(3), rather than KRS 532.110(1),
applied to permit a revoked felony sentence to be served
consecutive to a misdemeanor sentence.
The court stated:
[W]e are only concerned with the KRS
533.040(3) provision that "[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." Interpreting the relevant language
in a factually similar case, this Court
explained that "[i]t is our opinion that
probated sentences are to run concurrently
UNLESS the sentence of probation is revoked.
In the case at bar, the appellant's probation
was revoked, thus pursuant to KRS 533.040(3)
the court has the authority to impose
consecutive sentences." Myers v.
Commonwealth, Ky. App., 836 S.W.2d 431, 434
(1992), overruled on other grounds by
Sutherland v. Commonwealth, supra. (Footnote
omitted). We agree with this interpretation
of KRS 533.040(3).
Although concurrent sentencing is the
general rule, KRS 533.040(3) creates an
exception for cases in which probation is
revoked. By providing this exception, the
General Assembly has implied that consecutive
sentencing is an option when probation is
revoked within the required ninety-day
period.
927 S.W.2d at 843.
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Even though Snow involved revocation of a probated
felony sentence following conviction for a misdemeanor offense,
rather than the reverse, the language of KRS 533.040(3) would
readily apply in either situation.
It states that "[a] sentence
of probation or conditional discharge shall run concurrently with
any . . . state jail, [or] prison . . . term for another offense
. . . unless the sentence of probation . . . is revoked."
Consequently, we believe KRS 533.040(3) applies in the case at
bar to allow the trial court to run the reinstated misdemeanor
sentence consecutive to the felony sentence.
While Harris v.
Commonwealth, Ky. App., 674 S.W.2d 528 (1984), held that a
revoked misdemeanor sentence should run concurrently with the
sentence for a subsequent felony conviction, the court relied on
KRS 532.110(1), and did not discuss KRS 533.040.
As the court in
Snow v. Commonwealth, supra, held, KRS 533.040(3) is more
specifically directed toward situations involving the running of
revoked sentences and therefore takes precedence over the more
general KRS 532.110(1) in those cases.
Warren's second argument is that if KRS 533.040(3)
applies, this statute requires that Warren's sentences run
concurrently because revocation of the conditional discharge and
reinstatement of the misdemeanor sentence occurred outside the
90-day time limit.
In Sutherland v. Commonwealth, Ky., 910
S.W.2d 235 (1995), the Supreme Court held that while a
defendant's probation could be revoked at any time prior to
termination of the probationary period, the 90-day requirement in
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KRS 533.040(3) must be complied with before the revoked sentence
may be ordered to be served consecutively to another sentence.
Warren contends that the 90-day period accrued on July 2, when a
copy of the new felony conviction was entered.
In Myers v. Commonwealth, Ky. App., 836 S.W.2d 431
(1992), overruled on other grounds by Sutherland v. Commonwealth,
Ky., 910 S.W.2d 235 (1995), the court indicated that Corrections
may wait until a conviction is attained before initiating
revocation proceedings consistent with KRS 533.040(3).
As the
court noted, there are compelling reasons to postpone a
revocation hearing until final disposition of the other charges
such as safeguarding the defendant from self-incrimination and
judicial economy by circumventing duplicative hearings.
As the
Commonwealth points out, even entry of a guilty plea is not
necessarily final given the trial court's ability to allow the
defendant to withdraw the guilty plea under CR 8.10.
Warren maintains that the 90-day period was triggered
on July 2, 1996, when the judgment on the guilty plea in the
felony case was entered into the record and served on the
Division of Probation and Parole. She incorrectly asserts that
the Judgment on a Guilty plea in the felony offense in Case No.
96-CR-28 was mailed to the Department of Corrections at that
time.
The sentencing hearing in the felony case was not
conducted until July 28, 1996, and the final judgment and
sentence was not entered into the record with service to the
Department of Corrections until August 13, 1996.
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In addition,
the trial court's order for a bench warrant and show cause
hearing concerning possible revocation of the conditional
discharge on the misdemeanor offense because of the felony
conviction was not issued until August 13, 1996.
We believe the
most appropriate date for accrual of the 90-day period in KRS
533.040(3) is August 13, 1996, when the felony conviction became
final and the Department of Corrections was notified.
In any
event, utilizing either July 28 or August 13, 1996, the
revocation of the conditional discharge that occurred on October
11, 1996, was within the statutorily required 90-day period.
Accordingly, we hold that the trial court was not precluded from
ordering Warren to serve the twelve-month sentence on the
misdemeanor conviction consecutive to the two-year sentence on
the felony conviction because of the 90-day revocation
limitation.
For the foregoing reasons, we affirm the order of the
McCracken Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Wettle
Louisville, Kentucky
A. B. Chandler III
Attorney General
Dina Abby Jones
Assistant Attorney General
Frankfort, Kentucky
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