JAMES E. PORTER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
February 5, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1997-CA-003103-MR
JAMES E. PORTER
v.
APPELLANT
APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE DAVID L. KNOX, JUDGE
ACTION NO. 93-CR-00033
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: EMBERTON, GARDNER, and SCHRODER, JUDGES.
EMBERTON, JUDGE.
James Porter appeals pro se from an order of
the Woodford Circuit Court denying his motion for jail-time
credit brought pursuant to Kentucky Revised Statute (KRS)
532.120.
We affirm.
On July 7, 1993, Porter was arrested and charged with
second-degree assault and on July 12, 1993, was released from
jail on a ten percent cash bond.
In September 1993, the Woodford
County Grand Jury indicted Porter on one felony count of assault
under extreme emotional distress (KRS 508.040) and being a
persistent felony offender in the first degree (PFO I) (KRS
532.080).
On January 5, 1994, pursuant to a plea agreement with
the Commonwealth, Porter entered a guilty plea to assault under
extreme emotional distress.
Under the plea agreement, the
Commonwealth moved to dismiss the PFO I count and recommended a
sentence of five years on the assault count.
At that time, the
trial court allowed Porter to remain free on bond pending final
sentencing.
On February 2, 1994, the trial court sentenced
Porter to serve five years in prison on the offense of assault
under extreme emotional distress and denied his motion for
probation.
The trial court credited Porter with six days jail-
time credit for the period he spent in jail between July 7 to
July 12, 1993.
On March 2, 1994, Porter filed a motion for shock
probation.
On May 4, 1994, the trial court granted the motion
and placed Porter on supervised probation for a period of five
years with conditions that he pay a monthly supervision fee and
restitution, and that he receive anger management counseling.
On September 16, 1994, Porter was arrested on a warrant
for probation violation.
However, following a probation
revocation hearing on December 7, 1994, Porter was released from
custody and ordered to remain on probation.
On May 9, 1996, the trial court issued a bench warrant
for Porter resulting from his failure to appear in court for a
scheduled review of his compliance with the conditions of
probation.
1996.
He was arrested and placed in custody on June 27,
In July 1997, Porter’s probation officer requested
revocation of his probation as a consequence of his having been
convicted in district court on November 11, 1995, for the
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misdemeanor offense of fourth-degree assault, and on December 18,
1995, for the misdemeanor offense of harassment.
On September 4,
1996, the trial court revoked Porter’s probation and reinstated
the five-year prison sentence.
The trial court granted Porter
159 days jail-time credit toward his prison sentence.
In December 1996, Porter filed a motion pursuant to KRS
532.120 for 167 days of jail-time credit for the period between
July 4, 1995, and December 18, 1995.
In the same motion, he also
requested an additional 55 days of jail-time credit for the
period between June 15, 1996, and October 16, 1996, for which he
alleged he received only 67 days credit while he was entitled to
122 days credit.
The record does not reflect a court order
ruling on this motion.
In February 1997, Porter filed a second motion for
jail-time credit pursuant to KRS 532.120(3)1.
In this motion,
Porter sought 344 days credit, but he did not identify the time
period covered by the request.
On March 17, 1997, Virginia
Adkins, a Woodford County Probation and Parole Officer, filed in
the record a letter she had prepared in response to a request by
1
KRS 532.120(3) provides 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.
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the trial judge explaining how she determined that he was
entitled to 159 days jail-time credit at the time he was
sentenced.
In the letter, she stated Porter was entitled to only
partial credit on his felony conviction for the time periods he
identified in the December 1996 motions.
In October 1997, Porter filed a third motion for jailtime credit pursuant to KRS 532.120(3) seeking 221 days of credit
on his felony conviction.
Again he failed to identify the exact
period for which he claimed credit, but did dispute the
calculations of Probation Officer Adkins.
Porter filed a
supplemental memorandum to his motion seeking an additional 92
days credit for the period between February 2, 1994, and May 4,
1994.
In the supplemental memorandum, Porter stated that he was
seeking a total of 258 days of jail-time credit.
In addition,
Porter attached a verified copy of a jail confinement document
prepared by the Woodford County Jailer listing the time periods
that Porter was in custody at that facility.
On November 5,
1997, the trial court summarily denied the motion for jail-time
credit.
This appeal followed.
Although in his trial court motions Porter sought
various amounts of jail-time credit dealing with several time
periods, his brief on appeal asserts a claim of only 92 days for
the period of February 2 to May 4, 1994, and a claim of 166 days
for the period of July 4 to December 18, 1995.
A review of the
record indicates that he has not established an entitlement to
any additional jail-time credit.
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The record contains a letter from a Department of
Corrections administrator concerning the credit Porter has
received on his felony conviction.
The Department of Corrections
has given him credit for 159 days jail-time pursuant to the
calculations of Probation Officer Adkins and the order of the
trial court.
During the period of February 2 to May 4, 1994,
Porter was incarcerated in a prison facility on the initial fiveyear sentence on assault under extreme emotional disturbance.
He
was sentenced and transferred to prison on February 2, 1994, then
released on shock probation on May 4, 1994.
The Corrections
Department gave Porter credit for this time period as
institutional time.
This period of time Porter was incarcerated
is not considered as jail-time under KRS 532.120 because he was
incarcerated in a state prison facility.
Thus, he has already
received credit for this period against his prison sentence.
Porter asserts that he was incarcerated in the Woodford
County Jail on July 4, 1995, at the request of his probation
officer in order to have Porter placed into a drug treatment
center.
Porter alleges that the trial judge ordered him released
on December 18, 1995, because the probation officer failed to
file a proper probation revocation form.
There is nothing in the
record to substantiate Porter’s claim that he was in jail during
this period in relation to the felony conviction.
The jail
confinement document attached to the supplemental memorandum
listing the time periods that Porter was incarcerated in the
Woodford County Jail does not list this time period.
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The letter
of Probation Officer Adkins also does not list this period,
although she does suggest that Porter may have been in jail based
on other misdemeanor charges.
Porter implicitly indicates that he may have been
serving time on a misdemeanor conviction during this period by
arguing he is entitled to credit for this period because the
misdemeanor conviction was used as a basis to revoke his felony
probation.
In fact, the probation revocation proceeding was
initiated because of Porter’s failure to appear for a probation
review in May 1996.
Although the misdemeanor convictions for
forth-degree assault in November 1995 and harassment in December
1995 were added as elements supporting revocation of his
probation, Porter was not arrested on the bench warrant for
probation violation until June 1996.
Any time he spent in jail
on the misdemeanor convictions in July and December 1995 was not
related to any arrest or warrant issued in connection with the
felony conviction.
This time spent in jail was not “as a result
of the charge that culminated in the [felony] sentence.”
See
Handley v. Commonwealth, Ky. App., 653 S.W.2d 165, 166 (1983).
Porter actually received jail-time credit for the period after
his June 1996 arrest on probation violation until his probation
was revoked in September 1996.
The mere use of the misdemeanor
convictions as partial grounds for revocation of his probation
did not entitle Porter to jail-time credit on the felony sentence
for the time served on those misdemeanor convictions.
Cf. Snow
v. Commonwealth, Ky. App., 927 S.W.2d 841 (1996)(court could
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order felony sentence imposed after revocation of probation to
run consecutive to sentence on misdemeanor convictions used as
grounds for felony probation revocation).
As a result, Porter
has not established a right to jail-time credit for the period of
July 4 to December 18, 1995, based on the current record.
For the foregoing reasons, we affirm the order of the
Woodford Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James Porter - Pro Se
LaGrange, Kentucky
A. B. Chandler III
Attorney General
Joseph R. Johnson
Assistant Attorney General
Frankfort, Kentucky
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