CHARLES WESLEY BRADSHAW v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 21, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000565-MR
CHARLES WESLEY BRADSHAW
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DENNIS A. FRITZ, JUDGE
ACTION NO. 80-CR-00251
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; GUIDUGLI AND HUDDLESTON, JUDGES.
GUIDUGLI, JUDGE.
Charles Wesley Bradshaw (Bradshaw) appeals from
an order of the Oldham Circuit Court denying his CR 60.02 motion
to vacate a final judgment entered on June 26, 1981, which
ordered a twelve (12) month sentence to run consecutively to time
he was already serving on other criminal offenses.
We affirm.
On December 5, 1980, Bradshaw was indicted on two
counts of promoting contraband, first degree, in violation of
Kentucky Revised Statutes (KRS) 520.050.
The indictment charged
the following:
COUNT I
PROMOTING CONTRABAND, 1ST DEGREE
CHARLES WESLEY BRADSHAW, did on or about October 27, 1980,
in Oldham County, Kentucky, promote contraband in the first
degree, being a person confined at the Kentucky State
Reformatory, Department of Corrections for the Commonwealth of
Kentucky, knowingly made, obtained or possessed dangerous
contraband, marijuana. All in violation of KRS 520.050 and
contrary to other laws, statutes and regulations as made and
provided in such cases. All against the peace and dignity of the
Commonwealth of Kentucky.
COUNT II
PROMOTING CONTRABAND, 1ST DEGREE
CHARLES WESLEY BRADSHAW, did on or about November 15, 1980,
in Oldham County, Kentucky, promote contraband in the first
degree, being a person confined at the Kentucky State
Reformatory, Department of Corrections for the Commonwealth of
Kentucky, knowingly made, obtained or possessed dangerous
contraband, marijuana and $10 in U.S. currency. All in violation
of KRS 520.050 and contrary to other laws, statutes and
regulations as made and provided in such cases. All against the
peace and dignity of the Commonwealth of Kentucky.
Dated this 5th day of December, 1980, at LaGrange, Oldham
County, Kentucky.
Thereafter, on June 26, 1981, Bradshaw entered into a
plea agreement by which he pled guilty to two counts of promoting
contraband, second degree (KRS 520.060) and was sentenced to six
months on each offense for a total of 12 months.
The final
judgment and sentence of imprisonment stated:
IT IS FURTHER ORDERED AND ADJUDGED by
the Court that the defendant is guilty of the
crime of
PROMOTING CONTRABAND-2ND DEGREE (Count 1 & 2)
and defendant’s punishment is set at 6 months
on Ct. 1 and 6 months on Count 2 to run
consecutive to Count 1 for a total of 12
months and,
IT IS FURTHER ORDERED that the
defendant’s crime being a misdemeanor and
being committed while the defendant was in
prison with the Bureau of Corrections, he
shall serve said
12 months
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with the Bureau of Corrections and said
sentence shall run consecutive to any other
sentence the defendant may have to serve(.)
On December 5, 2000, Bradshaw filed his CR 60.02 motion
seeking to have the above-stated sentence vacated or to be
ordered to be run concurrently with the time he was serving on
other criminal charges.
The trial court denied his motion
finding that KRS 532.110(4) is controlling statutory authority
for ordering the new sentence to run consecutive to any time he
was already serving in prison.
This appeal followed.
On appeal, Bradshaw maintains that KRS 532.110(1)(a)
mandates that the sentences be run concurrently.
We disagree.
KRS 532.110(1)(a) states:
(1)
When multiple sentences of imprisonment
are imposed on a defendant for more than
one (1) crime, including a crime for
which a previous sentence of probation
or conditional discharge has been
revoked, the multiple sentences shall
run concurrently or consecutively as the
court shall determine at the time of
sentence, except that:
(a)
A definite and
term shall run
both sentences
by serviced of
term;
an indeterminate
concurrently and
shall be satisfied
the indeterminate
However, KRS 532.10(4) states:
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
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consecutively with any other sentence which
the defendant must serve.
In Gaither v. Commonwealth, Ky., 963 S.W.2d 621 (1997) (as
modified on denial of rehearing on April 16, 1998), our Supreme
Court held:
The trial court imposed the consecutive
sentence for the escape offense pursuant to
KRS 532.110(4). The pertinent part of this
statute states:
Notwithstanding any provision in
this section to the
contrary...[t]he 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.
(Emphasis added). The language of this
section is unequivocal. The legislature
obviously intended this section to be an
exception to the other provisions of the
statute.
....
The language of KS 532.110(4) is even
more explicit in creating an exception to the
sentencing maximum of Section (1)(c) than the
language of KRS 532.110(3). The impact, of
course, is to mandate consecutive sentencing
for escape offenses and modify the sentencing
maximum set forth in KRS 532.110(1)(c). See
e.g., Devore, supra. We not further that
Section (1)(c) and Section (4) of KRS 532.110
were enacted in 1976. However, Section (4)
has been twice changed by the legislature.
In 1982, the legislature added this sentence
to Section (4): “Provided, however, that 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.” 1982 Ky.
Acts 405, p. 1371. In 1992, the words
“[p]rovided, however, that” were struck from
the statute. 1992 Ky. Acts 211, p. 576.
....
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The sentence of twenty years was the sentence
imposed for the escape offense within the
meaning of KRS 532.10(4). KRS 532.110(4)
mandates that a sentence imposed for an
escape or attempted escape “shall run
consecutively with any other sentence which
the defendant must serve.”
Gathier, Id. at 622, 623.
Although Gathier dealt with an escape charge, the same
reasoning applies if a person is convicted of an offense that is
committed while he is imprisoned in a penal institution in that
both are KRS 532.110(4) exceptions to KRS 532.110(1)(a).
See
also Martin v. Commonwealth, Ky. App., 957 S.W.2d 262 (1997).
As
pointed out in the Commonwealth’s brief, the legislative
commentary found following KRS 532.110, states:
Subsection (4) serves to remove all
restrictions on the power of the trial court
to impose consecutive sentences on a person
who commits an offense while incarcerated,
pending incarceration, or during an escape
from custody. The provision is necessary to
eliminate the possibility of a situation in
which an individual under sentence would have
nothing to lose by committing another
offense. For example, suppose that a
misdemeanant had been sentenced to a maximum
of one year in jail, and, on the way to the
jail to commence his sentence, he attempted
to escape, another misdemeanor. Without
subsection (4), he could not be given
additional jail time. With the provision, he
can be given consecutive definite terms, the
aggregate of which will exceed one year.
Despite Bradshaw’s arguments to the contrary, KRS 532.110(4)
controls the imposition of consecutive sentences based on his
1981 conviction.
The trial court correctly ran the twelve (12)
month sentence for offenses which he committed while he was in
prison consecutive to his previous sentences.
As such, the
Oldham Circuit Court properly denied Bradshaw’s CR 60.02 motion.
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For the foregoing reason, the order of the Oldham
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Charles Wesley Bradshaw
St. Mary, Kentucky
A. B. Chandler, III
Attorney General
Elizabeth A. Heilman
Assistant Attorney General
Frankfort, KY
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