EMANUEL HOSKINS v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 28, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1996-CA-003264-MR
EMANUEL HOSKINS
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 96-CR-0050
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, JOHNSON, AND KNOPF, JUDGES.
JOHNSON, JUDGE:
Emanuel Hoskins (Hoskins) appeals from the
judgment and sentence on a plea of guilty entered on November 21,
1996, in the Laurel Circuit Court which convicted Hoskins of
manslaughter in the second degree in violation of Kentucky
Revised Statutes (KRS) 507.040, driving under the influence
(second offense) in violation of KRS 189A.010, four counts of
assault in the fourth degree in violation of KRS 508.030, and
wanton endangerment in the first degree in violation of KRS
508.060.
Hoskins argues that the sentence he received failed to
give him proper credit for the time he spent in custody prior to
being sentenced.
We affirm.
On the evening of December 9, 1995, Hoskins drove a
car while intoxicated and the car collided with another car
killing one passenger in the other car and injuring four others.
Apparently, Hoskins was taken into custody that evening on felony
charges.1
On January 6, 1996, Hoskins claimed to have injured his
arm when he fell from the top bunk in his jail cell.
When a
deputy took Hoskins to the hospital, he escaped, but he was
captured shortly thereafter.
Hoskins was indicted on February
16, 1996, on one count of escape in the second degree in
violation of KRS 520.030.
On March 22, 1996, Hoskins was indicted on the
following charges stemming from the December car accident:
second degree manslaughter, driving under the influence (second
offense), driving on a suspended license (first offense), no
insurance, four counts of assault in the first degree, and wanton
endangerment in the first degree.
On April 3, 1996, Hoskins filed a motion to enter a
guilty plea on the escape charge and on April 19, the trial court
sentenced Hoskins to prison for one year on the escape
conviction.
In accordance with the presentence investigation
report, the trial court credited Hoskins with 105 days for time
1
The record does not disclose the details other than to
state that Hoskins was rushed to the hospital.
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served in jail.
A document in the record, “Notice of Discharge,”
states that Hoskins began serving the sentence for escape on
April 19.
On August 30, 1996, after serving the minimum time,
Hoskins was discharged on the escape sentence.
However, Hoskins
remained in jail pending trial on the manslaughter indictment.
On September 30, Hoskins filed a motion to enter a
guilty plea on the charges arising out of the car accident.
On
November 21, 1996, Hoskins was sentenced to prison for eight
years on the manslaughter conviction, six months on the driving
under the influence conviction, twelve months on each of the four
assault convictions and five years on the wanton endangerment
conviction with all sentences to run concurrently.2
The
presentence investigation report stated that Hoskins had earned
78 days of credit for time served in jail.
Hoskins filed a
motion asking that he receive 239 days of credit3 because, he
argued, according to KRS 532.120(3) he was entitled to credit for
all time spent in custody on the manslaughter charge, including
2
The driving on a suspended license charge and the driving
with no insurance charge were dismissed. The four counts of
assault in the first degree were amended down to four counts of
assault in the fourth degree.
3
Hoskins only appeals from the judgment on the manslaughter
and related convictions. He does not appeal from the escape
judgment. A review of the record indicates Hoskins was credited
with 105 days of time served in jail prior to his sentencing on
the escape charge. Using the “Notice of Discharge,” we calculate
that Hoskins actually served 134 days of his one-year sentence in
prison. This brings the total amount of time Hoskins served on
the escape conviction to 239 days. Hoskins does not dispute this
and, in fact, he argues that these 239 days should be credited to
his manslaughter sentence.
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the time spent in jail on the escape sentence.
overruled Hoskins’ motion.
The trial court
This appeal followed.
Hoskins characterizes the issue on appeal as whether he
is entitled to credit for all time spent in custody between his
arrest on the manslaughter charge and the commencement of his
sentence on that conviction.
Hoskins argues that KRS 532.120(3)
governs credit for time spent in custody before sentencing, while
the Commonwealth counters that KRS 532.110 is the controlling
statute.
Hoskins also notes the case of Handley v. Commonwealth,
Ky.App., 653 S.W.2d 165 (1983), which deals with KRS 533.060(3).
KRS 532.120(3) states as follows:
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.
KRS 532.110(4) states as follows:
Notwithstanding any provision in this section
to the contrary, if a person is convicted of
an offense that is committed while he is
imprisoned in a penal or reformatory
institution, during an escape from
imprisonment, or while he awaits
imprisonment, the sentence imposed for that
offense may be added to the portion of the
term which remained unserved at the time of
the commission of the offense. The sentence
imposed upon any person convicted of an
escape or attempted escape offense shall run
consecutively with any other sentence which
the defendant must serve.
KRS 533.060(3) states as follows:
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When a person commits an offense while
awaiting trial for another offense, and is
subsequently convicted or enters a plea of
guilty to the offense committed while
awaiting trial, the sentence imposed for the
offense committed while awaiting trial shall
not run concurrently with confinement for the
offense for which the person is awaiting
trial.
We agree with Hoskins that since he served the entire
escape sentence prior to being sentenced on the manslaughter
conviction, there was no sentence on the escape to run
consecutively or concurrently with the manslaughter sentence.
For that reason, we do not believe KRS 532.110 is dispositive.
Handley, supra, relied upon by Hoskins, does not
support his position.
Handley was charged in the Franklin
Circuit Court with five felonies, arrested and then released on
bail.
While on bail, he was charged in the Jefferson Circuit
Court with a misdemeanor and remained in the Jefferson County
jail until he was sentenced on that charge.
On his subsequent
return to the Franklin Circuit Court, Handley entered a guilty
plea and was sentenced to a one-year term of imprisonment to run
consecutively to the Jefferson Circuit Court term he was then
serving.
Handley sought credit against the Franklin Circuit
Court sentence for time spent in the Jefferson Circuit Court jail
and the trial court denied the credit.
This Court in affirming
the trial court relied on KRS 533.060(3) and KRS 532.120(3), and
stated that “[c]redit for time spent in custody prior to the
commencement of a sentence applies only where the custody was a
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result of the charge that culminated in his sentence.”
Id. at
166.
KRS 532.120(3), which is relied upon by Hoskins, deals
with credit for time spent in custody and the critical language
of that statute concerns credit for “[t]ime spent in custody
. . . as a result of the charge that culminated in the
sentence. . . .”
Hoskins served 239 days in jail for the felony
conviction of escape.
These 239 days were days spent “in custody
. . . as a result of the charge that culminated in the
sentence”—namely, the escape charge.
These 239 days in custody
were not spent as a result of the manslaughter conviction.
Thus,
KRS 532.060(3) does not apply to the manslaughter sentence, but
rather only to the escape sentence.
In Martin v. Commonwealth, Ky.App., 957 S.W.2d 262
(1997), Martin escaped while home-incarcerated for nonsupport.
Martin wanted credit for both the nonsupport sentence and the
escape sentence for time spent in jail.
This Court addressed the
application of KRS 532.120(5)4 and determined that credit for
4
KRS 532.120(5) states as follows:
If a person serving a sentence of
imprisonment escapes from custody, the escape
shall interrupt the sentence. The
interruption shall continue until the person
is returned to the institution from which he
escaped or to an institution administered by
the Department of Corrections. Time spent in
actual custody prior to return under this
subsection shall be credited against the
sentence if custody rested solely on an
arrest or surrender for the escape itself.
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time served should be applied to either the escape sentence or
the underlying sentence but not both sentences.
See also Bailey
v. Commonwealth, Ky.App., 598 S.W.2d 472 (1980).
It is obvious from these statutes and the cases cited
herein that the Legislature intended to give a defendant credit
for the time served that related to the charges for which he was
serving the time and to require those who commit felonies while
awaiting trial, to serve additional time for that crime and not
to be allowed credit on the underlying felony charges.
We hold
that the 239 days Hoskins served on the escape conviction cannot
be credited to the underlying manslaughter conviction.
To allow
Hoskins the credit he seeks would produce the absurd result that
he would receive no additional punishment for the felony escape
conviction.
For the foregoing reasons, we affirm the judgment of
the Laurel Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Irvin J. Halbleib
Louisville, KY
Hon. A.B. Chandler III
Attorney General
Hon. Perry T. Ryan
Assistant Attorney General
Frankfort, KY
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