GREGORY HILL v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: June 23, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001035-MR
GREGORY HILL
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 95-CR-00060
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON AND SCHRODER, JUDGES.
EMBERTON, JUDGE: The sole issue in this appeal is whether the
trial court erred in denying appellant’s motion for sixty-eight
days’ jail time credit, stemming from his incarceration pending
trial on an escape charge.
We affirm.
Appellant was convicted of second-degree robbery on
December 12, 1993, and sentenced to eight years’ imprisonment.
While serving that sentence, he escaped from Transitions, Inc., a
detention center in Ashland, Kentucky, and was apprehended eight
days later, on June 26, 1996, pursuant to a “Notice of
Interruption of Sentence” issued by the Kentucky Department of
Corrections.
According to his resident record card with the
Department of Corrections, upon his apprehension on June 26,
1996, appellant’s time on his original robbery sentence began to
run again.
On August 11, 1995, appellant pled guilty to the charge
of second-degree escape, and on September 1, 1995, was sentence
to one year of imprisonment to run consecutively to the six years
remaining on his robbery conviction.
The sentencing order
clearly reflects the opinion of the Boyd Circuit Court that
appellant was considered to be a state prisoner during his pretrial incarceration as it specifically denies any credit for time
spent in custody prior to commencement of the new sentence.
Appellant filed a motion on May 16, 1996, requesting
jail time credit pursuant to Kentucky Revised Statutes (KRS)
532.120(3).
Although this motion was denied on May 21, 1996, no
appeal was taken from the trial court’s decision.
Almost three
years later, on April 16, 1999, appellant again sought identical
relief under KRS 532.120(3).
After reviewing appellant’s
resident record card, the trial court again denied the motion for
jail time credit.
This appeal followed.
As a preliminary matter, the appellant is procedurally
barred from relitigating the issue of his entitlement to jail
time credit because he failed to appeal the denial of his May
1996, motion.
Consequently, appellant has voluntarily
relinquished any right to raise the exact issue again in a
subsequent motion.
Under the doctrine of res judicata, once the
-2-
trial court’s May 1996, denial of the motion for jail-time credit
became final, it was, and is, binding as to the same parties.1
Nevertheless, it is clear that appellant’s substantive
complaint is without merit.
He is, in reality, requesting double
credit and his reliance upon KRS 532.120(5), and Bailey v.
Commonwealth,2 is therefore misplaced.
The plain language of KRS
532.120(5), provides:
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
section shall be credited against the
sentence if custody rested solely on an
arrest or surrender for the escape itself.
(Emphasis added).
The situation in this case is very like the one
addressed by this court in Martin v. Commonwealth,3 which also
provides some guidance as to the rationale at work in Bailey:
Since Martin received credit for the time
awaiting sentence against the underlying
misdemeanor sentence, he was not entitled to
credit against his one-year escape sentence.
In fact, since KRS 532.110(4) required that
Martin’s sentence for the escape run
consecutively with Martin’s underlying
misdemeanor sentence, he could not receive
credit against both sentences. The holding
in Bailey avoided the inequity of Bailey not
receiving credit against either sentence.
Here, since Martin received credit against
the misdemeanor sentence, to also give him
1
See generally, Barnett V. Commonwealth, Ky., 348 S.W.2d
834 (1961).
2
Ky. App., 598 S.W.2d 472 (1980).
3
Ky. App., 957 S.W.2d 262 (1997).
-3-
credit against the escape sentence would
constitute an inequity in his favor.4
The critical factor in these cases is not where a
prisoner is serving his sentence, but whether he is receiving
appropriate credit.
Like Martin, appellant has received credit
on the sentence he was serving prior to escape.
He is entitled
to nothing more.
The judgment of the Boyd Circuit Court is affirmed.
4
957 S.W.2d at 264.
-4-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory Hill, Pro Se
West Liberty, Kentucky
Albert B. Chandler III
Attorney General
J. Hamilton Thompson
Assistant Attorney General
Frankfort, Kentucky
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.