RONNIE C. RODGERS v. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 27, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-001531-MR
RONNIE C. RODGERS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
INDICTMENT NO. 88-CR-000684
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, HUDDLESTON and MILLER, Judges.
HUDDLESTON, Judge: Ronnie C. Rodgers appeals from an order denying
his pro se motion to modify sentence filed pursuant to Kentucky
Rules of Civil Procedure (CR) 60.02(f).
On February 23, 1989, Rodgers was sentenced by Jefferson
Circuit Court under Indictment No. 88-CR-000684 to five years’
imprisonment following a plea of guilty to theft by deception over
$100.001 and the sentence was probated for a period of five years.
On September 27, 1990, Rodgers was indicted in Warren County under
1
Ky. Rev. Stat. (KRS) 510.110.
Indictment No. 90-CR-00595 for rape in the first degree,2 sexual
abuse in the first degree,3 and sodomy in the first degree.4
offenses were alleged to have occurred on September 11, 1990.
All
On
December 10, 1990, Rodgers was indicted in Warren County under
Indictment No. 90-CR-00741 for criminal solicitation to commit
murder5 and conspiracy to commit murder,6 offenses which were
alleged to have occurred earlier that month.
On January 29, 1991,
Rodgers was tried on the charges under Indictment No. 90-CR-00595
and was convicted by a jury of sexual abuse in the first degree but
acquitted of the other two offenses. In March 1991, Warren Circuit
Court sentenced Rodgers to serve five years in prison on the
conviction for sexual abuse in the first degree.
On April 8, 1991,
following a hearing, Jefferson Circuit Court revoked Rodgers’s
probation based on the Warren County conviction and ordered him to
serve the suspended five-year term of imprisonment for the 1989
Jefferson County conviction of theft by deception over $100.00. In
January 1993, Rodgers entered a guilty plea under Indictment No.
90-CR-00741 to criminal solicitation to commit murder and was
sentenced by Warren Circuit Court to fifteen years’ imprisonment to
run consecutively to the five-year sentence for sexual abuse in the
first degree under Indictment No. 90-CR-00595.
2
KRS 514.040.
3
KRS 510.110.
4
KRS 510.070.
5
KRS
506.030
KRS
506.040
(criminal
solicitation)
and KRS 507.020
conspiracy)
and KRS 507.020
(murder).
6
(criminal
(murder).
-2-
On October 4, 2000, Rodgers moved Jefferson Circuit Court
to modify the five-year Jefferson County sentence pursuant to CR
60.02(f), CR 13.04 and KRS 532.070.
In his motion, Rodgers stated
that the Department of Corrections had calculated the Jefferson
County sentence as running consecutively to the five- and fifteenyear sentences imposed by Warren Circuit Court for a total sentence
of twenty-five years.7 Rodgers proposed three alternative types of
relief by asking the trial court to either reduce the five-year
felony
sentence
to
one
year,
reclassify
the
offense
as
a
misdemeanor with a sentence of one year, or order the sentence to
run concurrently with the Warren County sentences.8 Rodgers argued
that
the
court
should
exercise
its
discretion
to
reduce
his
Jefferson County sentence under KRS 532.070(1) and (2) because of
his
rehabilitative
efforts
in
prison
as
exemplified
by
his
successful completion of various programs and record of good
behavior.
He also stated that modification of the conviction to a
misdemeanor and reduction of the sentence was appropriate because
shortly after his conviction, the statute involving theft by
deception was amended to require a threshold amount of $300.00,
rather than $100.00, for classification as a felony, as opposed to
7
Rodgers has provided no official documentation supporting
this assertion.
Given the chronological sequence of his
convictions and sentencing, it is more likely his Warren County
sentences are being treated as running consecutively to the
Jefferson County sentence. Rodgers also has a five-year sentence
on a 1990 conviction in Bullitt County for theft by deception over
$100.00, but he states that this sentence is being treated as
running concurrently with the other sentences.
8
On April 9, 2001, counsel for Rodgers filed a supplement
to the motion stating that the Parole Board has recently denied
Rogers parole and ordered him to “serve out” his sentence.
-3-
a misdemeanor offense.
Finally, Rodgers contended that under KRS
532.110(2)a, the Jefferson County sentence should be treated as
running concurrently with the other sentences because the judgment
was silent on whether it would run concurrently or consecutively.
On June 20, 2001, Jefferson Circuit Court denied the motion to
modify sentence.
Rodgers is not entitled to any of the alternative types
of relief he proposed.
His reliance on KRS 532.070 and KRS
532.110(2) is misplaced.
A circuit court loses jurisdiction to
modify a sentence ten days after the entry of a final judgment
subject to the timely filing of a proper post-judgment motion under
RCr 11.42, CR 60.02, or the habeas corpus statute.9
Collateral
review is limited to the grounds applicable to the particular rule
or statute.
KRS 532.070 does not confer continuing jurisdiction
upon a circuit court to modify a sentence under its discretionary
sentencing authority.10
KRS 531.070 is directed at a circuit
court’s exercise of discretion prior to entry of a final judgment.
KRS 532.110(2) is of no help to Rogers.
Jefferson
County
judgment
and
sentence
is
silent
While the
on
the
concurrent/consecutive sentencing issue, KRS 532.110(2) does not
prevent the Department of Corrections from running the Warren
County sentences consecutively to the Jefferson County sentence.11
9
See Bowling v. Commonwealth, Ky., 964 S.W.2d 803, 804
(1998); Commonwealth v. Marcum, Ky. 873 S.W.2d 207 (1994); McMurray
v. Commonwealth, Ky. App., 682 S.W.2d 794 (1985).
10
See Silverburg v. Commonwealth, Ky., 587 S.W.2d 241, 244
(1979); cf. Commonwealth v. Gross, Ky., 936 S.W.2d 85 (1996) .
11
See supra, n. 7.
-4-
The Jefferson County judgment and sentence occurred before the
Warren County convictions, so it understandably was silent on the
issue.
Rodgers committed the Warren County offenses while he was
on probation from the Jefferson County sentence.
In Riley v.
Parke,12 the Supreme Court held that KRS 533.060(2), which prohibits
concurrent sentencing for conviction of an offense committed while
on probation from a felony offense, controls over KRS 532.110(2),
and the Department of Corrections has authority to apply KRS
533.060(2) to calculate an inmate’s sentences.
In Brewer v.
Commonwealth,13 this Court held that KRS 533.060(2) controls over
KRS 533.040(3), and requires consecutive sentencing upon conviction
of an offense committed while a defendant is on probation from a
conviction, which had been revoked based on the second conviction.
As a result, Rodgers’s Jefferson County and Warren County sentences
may not be run concurrently as a matter of law.14
Rodgers’s request for a reduction in his sentence based
on his good behavior or the amendment of the theft by deception
statute is not addressed to the correct forum.
While Rodgers’s
exemplary conduct in prison is commendable, it does not provide
grounds for modification of his sentence under CR 60.02(f). As the
12
Ky., 740 S.W.2d 934 (1987).
13
Ky. App., 922 S.W.2d 380 (1996).
14
Because the Warren County sentences were imposed after
the Jefferson County sentence, they would be required to run
consecutively to the Jefferson County sentence, and therefore, in
addition to the lack of substantive merit, Rodgers’s request for
modification of his sentences to have them run concurrently was
directed at the wrong court.
-5-
Supreme Court said in McQueen v. Commonwealth,15 a defendant’s
change of attitude and character evidenced by good behavior while
in
prison
“afford[s]
no
basis
for
relieving
[him]
from
the
punishment legally imposed for the crimes which he has committed.”16
Rogers’s arguments are more properly addressed in a plea to the
executive
for
clemency
under
Section
Constitution17 or the Parole Board.
77
of
the
Kentucky
As for the amendment of the
theft by deception statute, under KRS 446.110, enactment of a new
law does not affect a penalty imposed for violation of a former
statute.
Rodgers’s commission, conviction and sentencing on the
Jefferson County offense occurred prior to the amendment of KRS
514.040, so the amendment did not affect his sentence.18
The Jefferson Circuit Court order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ronnie C. Rodgers, pro se
Central City, Kentucky
Albert B. Chandler III
Attorney General
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
15
Ky., 948 S.W.2d 415 (1997), cert. denied, 521 U.S. 1130,
117 S.Ct. 2535, 138 L. Ed. 2d 1035 (1998).
16
Id. at 418.
17
Id.
18
See, e.g., Lawson v. Commonwealth, Ky., 53 S.W.3d 534
(2001).
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