FRANK W. BRIGHT v. HONORABLE WILLIAM M. HALL INDICTMENT NO. 96-CR-00128(1) COMMONWEALTH OF KENTUCKY
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RENDERED: October 29, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-001227-MR
FRANK W. BRIGHT
APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE WILLIAM M. HALL
INDICTMENT NO. 96-CR-00128(1)
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge:
Frank W. Bright appeals pro se from a Taylor
Circuit Court order that denied his motion (Kentucky Rule of
Criminal Procedure (RCr) 11.42) to vacate, alter, amend or correct
sentence.
We affirm.
In August 1996, a Taylor County grand jury charged Bright
in Indictment No. 96-CR-128 with assault in the first degree
(Kentucky Revised Statute (KRS) 508.010), two counts of burglary in
the first degree (KRS 511.020), one count of robbery in the first
degree (KRS 515.020) and one count of being a persistent felony
offender in the first degree (PFO I)(KRS 532.080).
The charges
were based on Bright’s involvement in a break-in and theft and the
beating
of
an
elderly
man.
Following
negotiations
with
the
Commonwealth, Bright entered a guilty plea to the two counts of
first-degree burglary and the one count of first-degree robbery.
Under the plea agreement, the Commonwealth moved to dismiss the
first-degree
assault
and
the
PFO
I
counts,
and
recommended
sentences of twenty years for each of the two counts of firstdegree burglary and twenty years for first-degree robbery, all to
run concurrently for a total of twenty years.
On January 21, 1997, the parties appeared for sentencing.
At that time, the Commonwealth moved to reduce one of the burglary
counts to second-degree burglary.
The prosecutor also amended his
sentencing recommendation on the amended burglary charge to ten
years.
The circuit court sentenced Bright to a total sentence of
twenty years. In its judgment, the court described the sentence as
imprisonment for a maximum term of “20 yrs each on burglary 1st &
Robbery 1st & 10 years on burglary 2nd — all to run concurrent
(sic) with each other but consecutive(sic) with all prior sentence
(sic) on which he was on parole when these offenses occurred.”
Bright was on parole from a 1994 conviction in Indictment Nos. 93CR-31,
93-CR-32,
and
93-CR-33,
for
three
felony
offenses
of
trafficking in a controlled substance at the time of the 1996
offenses.
In April 1998, Bright moved the court pursuant to RCr
11.42 to amend the judgment by ordering his twenty-year sentence in
Indictment No. 96-CR-128 to run concurrently with the sentences in
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the 1994 conviction.
He argued that all of the sentences should
run concurrently with each other because his parole had not been
revoked.
He also requested an evidentiary hearing on the motion.
On April 22, 1998, the circuit court denied the motion without a
hearing.
This appeal followed.
RCr 11.42 allows an individual in custody under sentence
to raise a collateral attack to the judgment or sentence entered
against him.
RCr 11.42(5) permits the trial court to summarily
dismiss the motion without a hearing where the movant fails to make
a substantial showing of entitlement to relief.
Commonwealth, Ky., 854 S.W.2d 742 (1993).
Stanford v.
An evidentiary hearing
is not required on an RCr 11.42 motion where the issues raised in
the motion are refuted on the record, or where the allegations,
even if true, would not be sufficient to invalidate the conviction.
See Harper v. Commonwealth, Ky., 978 S.W.2d 311, 314 (1998), cert.
denied, ___ U.S. ____, 119 S. Ct. 1367, 143 L. Ed. 2d 527 (1999);
Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 909 (1998), cert.
denied, ___ U.S. ____, 119 S. Ct. 1266, 143 L. Ed. 2d 361 (1999).
Bright argues on appeal that the sentences for the 1996
conviction should not run consecutively to the sentences for the
1994 convictions because his parole was not revoked following a
hearing before the Parole Board.
He notes that at the sentencing
hearing, the trial judge stated that the twenty-year sentence for
the 1996 conviction would run consecutively with the sentence he
received for the offenses for which he was on parole at that time,
if his parole was revoked.
Bright maintains that under KRS
439.330(1)(e) and Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct.
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2593, 33 L. Ed. 2d 484 (1972), he was entitled to a parole
revocation hearing.
KRS 439.330(1)(e) states: “(1) The board shall: (e) issue
warrants for persons charged with violations of parole and conduct
hearings
439.341.”
on
such
charges,
subject
to
the
provisions
of
KRS
A review of the Probation and Parole statutes, Chapter
439, and the language of KRS 439.330(1) itself indicates that this
statute merely provides a listing of the duties of the Parole Board
and does not create a statutory right by mandating a parole
revocation hearing in all instances.
Similarly, Morrissey v.
Brewer, supra, does not create a constitutional due process right
to a hearing before a person’s parole may be revoked.
In Sneed v. Donahue, 993 F.2d 1239 (6th Cir. 1993), the
Sixth Circuit Court of Appeals addressed the application of KRS
439.352 and Morrissey with respect to the right to a revocation of
parole without a hearing.
KRS 439.352 provides as follows:
Recommitment of a parolee to prison on a new sentence
received for commission of a crime while on parole shall
automatically terminate his parole status on any sentence
on which he has not received a final discharge, or a
restoration
of
recommitment.
recommitment
civil
rights,
prior
to
the
date
of
The prisoner shall, at the time of the
on
the
new
sentence,
begin
to
accrue
additional time credit toward conditional release or
expiration of sentence on the sentence on which he had
previously
been
paroled
unless
he
has
been
finally
discharged from parole on the sentence or has been
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restored
to
civil
rights
prior
to
the
date
of
the
recommitment.
The court in Sneed held that KRS 439.352 did not deprive the
defendant of his Fourteenth Amendment right to due process even
though it provided for automatic revocation of a defendant’s parole
without a hearing upon conviction for an offense while on parole.
The court recognized that given the mandatory character of the
statute
withdrawing
any
discretion
by
revocation hearing would be superfluous.
the
Parole
Board,
a
Sneed, 993 F.2d at 1243
(emphasis in original). See also Kellogg v. Shoemaker, 46 F.3d 503
(6th Cir.)(reaffirming Sneed), cert. denied, 516 U.S. 839, 116 S.
Ct. 120, 133 L. Ed. 2d 70 (1995); Pickens v. Butler, 814 F.2d 237
(5th Cir.)(holding parole revocation hearing not required under
Louisiana statute), cert. denied, 484 U.S. 924, 108 S. Ct. 284, 98
L. Ed. 2d 245 (1987).
Bright also relies on KRS 533.040(3)1 in arguing that the
circuit court could not order his sentences to run consecutively
because his parole was not revoked within ninety days following the
date
his
1
violation
of
the
conditions
of
parole
came
to
the
KRS 533.040(3) provides:
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.
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attention
of
the
Corrections
Department.
See
Kiser
v.
Commonwealth, Ky. App., 829 S.W.2d 432 (1992).
Bright’s reliance on KRS 533.040(3) is misplaced for
several reasons.
First, this statutory provision applies to
revocation of probation or conditional discharge, not revocation of
parole.
Parole is an executive function within the authority of
the Department of Corrections, while probation or conditional
discharge is a function of the judicial branch within the authority
of the courts.
See Mullins v. Commonwealth, Ky. App., 956 S.W.2d
222, 223 (1997)(discussing the different functions of probation and
parole).
Furthermore, as indicated earlier, under KRS 439.352,
parole is automatically revoked without a hearing upon conviction
for a subsequent offense while on parole.
533.040(3)
applied
to
impose
a
time
Therefore, even if KRS
limitation
on
a
parole
revocation procedure (which we believe it does not), any time
limitation for running the sentences consecutively was satisfied.
Second, in Brewer v. Commonwealth, Ky., 922 S.W.2d 380
(1996), the Supreme Court held that KRS 533.060(2) takes precedence
over KRS 533.040(3) in situations involving conviction for a felony
committed while on parole or probation.
KRS 533.060(2) states as
follows:
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
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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.
Consequently, applying KRS 533.060(2), the circuit court
and the Department of Corrections properly found that Bright’s
twenty-year
sentence
in
Indictment
No.
96-CR-128
should
run
consecutively to the six-year sentence he received in Indictment
Nos. 93-CR-31, 93-CR-32, and 93-CR-33, for which he was on parole
at the time he committed the offenses in the 1996 conviction.
See
also Riley v. Parke, Ky., 740 S.W.2d 934 (1987)(Department of
Corrections has authority to apply KRS 533.060(2)).
533.060(2)
mandates
that
Bright’s
sentences
run
Indeed, KRS
consecutively
regardless of whether his parole had been revoked.
The circuit
court did not err in denying Bright’s RCr 11.42 motion without a
hearing.
The order denying Bright’s RCr 11.42 motion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Frank W. Bright, pro se
Burgin, Kentucky
A. B. Chandler III
Attorney General
Courtney A. Jones
Assistant Attorney General
Frankfort, Kentucky
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