GLOSTER B. HAYES v. COMMONWEALTH OF KENTUCKY
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RENDERED: February 23, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000247-MR
GLOSTER B. HAYES
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 98-CR-00324
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS and EMBERTON, Judges; and MARY COREY, Special
Judge.1
COMBS, JUDGE: Gloster Hayes (Hayes) appeals the order of the
Fayette Circuit Court denying his post-conviction motion for
relief from his sentence of imprisonment pursuant to Kentucky
Rules of Civil Procedure (CR) 60.02.
Finding no error, we
affirm.
The underlying facts are not in dispute.
On July 12,
1996, Hayes entered a plea of guilty to the crime of trafficking
in a controlled substance, first degree, and was sentenced to a
1
Senior Status Judge Mary Corey sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution.
term of five-years’ imprisonment.
The sentence was “withheld”
and Hayes was placed on probation for a period of five years
subject to several conditions — including his participation in a
drug court program.
In January 7, 1998, Hayes was housed in the Fayette
County Detention Center for violating the terms of his probation
with respect to the drug court program.
When he failed to return
to the facility on January 17, 1998, after a period of workrelease, a warrant was issued for his arrest.
In March 1998,
Hayes testified before the grand jury to explain his departure
from the detention center.
He was subsequently indicted for the
offenses of second-degree escape and first-degree perjury as well
as for being a second-degree persistent felony offender (PFO II).
Following a jury trial on these charges, Hayes was sentenced on
August 27, 1998, to serve ten years in prison.
On September 15, 1999, while his direct appeal from the
judgment of conviction was pending,2 Hayes filed a motion to be
relieved from the sentence, alleging that his previous probated
sentence did not qualify as a “conviction” under Kentucky Revised
Statutes (KRS) 532.080(2) for PFO II enhancement purposes.
The
motion was summarily overruled and this appeal followed.
Hayes continues to argue in this Court that he was not
eligible to be tried as a persistent felony offender because his
1996 conviction for trafficking “resulted in a sentence of
Probation.”
Hayes contends that KRS 532.080(2) requires that one
2
On June 9, 2000, Hayes’s conviction was affirmed in an
unpublished opinion rendered by this Court in case number 1998CA-002268-MR.
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be imprisoned for the underlying felony conviction before he can
be convicted as a PFO II.
KRS 532.080(2) reads:
A persistent felony offender in the second
degree is a person who is more than twentyone (21) years of age and who stands
convicted of a felony after having been
convicted of one (1) previous felony. As
used in this provision, a previous felony
conviction is a conviction of a felony in
this state or conviction of a crime in any
other jurisdiction provided:
(a)
(b)
(c)
That a sentence to a term of
imprisonment of one (1) year or
more or a sentence to death was
imposed therefor; and
That the offender was over the age
of eighteen (18) years at the time
the offense was committed; and
That the offender:
1.
Completed service of the
sentence imposed on the
previous felony conviction
within five (5) years prior to
the date of commission of the
felony for which he now stands
convicted; or
2.
Was on probation, parole,
conditional discharge,
conditional release, furlough,
appeal bond, or any other form
of legal release from any of
the previous felony
convictions at the time of
commission of the felony for
which he now stands convicted;
or;
3.
Was discharged from probation,
parole, conditional discharge,
conditional release, or any
other form of legal release on
any of the previous felony
convictions within five (5)
years prior to the date of
commission of the felony for
which he now stands convicted;
or
4.
Was in custody from the
previous felony conviction at
the time of commission of the
felony for which he now stands
convicted; or
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5.
Had escaped from custody while
serving any of the previous
felony convictions at the time
of commission of the felony
for which he now stands
convicted.
Hayes relies on Commonwealth v. Tiryung, Ky., 709
S.W.2d 454 (1986), for the proposition that his sentence of
probation was not a sentence as contemplated by KRS
532.080(2)(a); that is, “a sentence to a term of imprisonment”
which was “imposed.”
Tiryung indeed holds that a sentence of
probation, “standing alone,” does not constitute an authorized
disposition of a criminal case.
Id. at 455.
Otherwise, a trial
court could withhold a sentence of conviction and impose a
“greater punishment for the offense committed than is deserved”
because of a subsequent violation of the terms of probation.
Id.
at 456.
However, unlike the situation in Tiryung, when the
Fayette Circuit Court sentenced Hayes on the 1996 trafficking
conviction, it explicitly imposed a term of imprisonment of five
years.
Imposition of this sentence was withheld subject to his
successful completion of a probationary period.
Thus, the record
reveals that at the time Hayes was indicted and tried for PFO II,
he had been convicted of a felony (trafficking), he had been
sentenced to five years of imprisonment, and he was on probation.
Hayes’s status as a probationer did not remove or excuse him from
the provisions of the PFO statute, and his probated felony
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sentence was properly used as a prior conviction in accordance
with KRS 532.080(2)(c).3
Next, Hayes argues that the trial court erred by
allowing his “convictions to be manipulated to fit within the
statutory framework to make him eligible for PFO II.”
This
argument is premised upon the fact that his probation was not
revoked until after his trial on the 1998 charges and just a few
days before his sentencing on the more recent crimes.
However,
we have already noted that it was not necessary for Hayes to have
had his probation revoked in order to fit within the definition
of a second-degree persistent felony offender.
Indeed, the
unequivocal language of KRS 532.080(2)(c)(2.) provides that a
defendant might be on probation.
Additionally, it was Hayes’s
status at the time he committed the more recent felony offenses
of escape and perjury that is relevant — not his status at the
time of his subsequent trial or sentencing.
Hayes also argues that he was denied a fair trial
because the Commonwealth “knew” that he “was not eligible to be
tried, or indicted for PFO II” and “did nothing to correct it.”
Since we have held that Hayes’s indictment and sentence were
consistent with the statutory scheme for PFO enhancement, this
argument is without merit.
3
Prior to 1976, KRS 532.080(2) explicitly required prior
incarceration before a defendant could be given a PFO-enhanced
sentence. However, the statute was amended in 1976 to its
current version to include prior convictions resulting in
probation as a proper basis for enhanced sentences. See,
Commonwealth v. Hinton, Ky., 678 S.W.2d 388 (1984).
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Although we have disposed of this appeal on the merits,
we note that if Hayes had been correct in his contention that the
elements of KRS 532.080 had not been met, he would have been
required to move for a dismissal of the indictment or to move for
a directed verdict at trial — and to have included the issue in
his direct appeal.
CR 60.02 is designed for relief that is not
available either by direct appeal or under Kentucky Rules of
Criminal Procedure 11.42.
See, Gross v. Commonwealth, Ky., 648
S.W.2d 853 (1983).
Accordingly, the judgment of the Fayette Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Gloster B. Hayes
West Liberty, KY
Albert B. Chandler III
Attorney General of Kentucky
Brian T. Judy
Assistant Attorney General
Frankfort, KY
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