LARRY RAY SMITH v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 11, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000001-MR
LARRY RAY SMITH
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 93-CR-00668
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Larry Ray Smith, pro se, has appealed from an
order entered by the Fayette Circuit Court on November 14, 2001,
which denied his CR1 60.02 motion to vacate his sentence.
Having
found no abuse of discretion on the part of the trial court in
denying Smith’s CR 60.02 motion, we affirm.
On August 31, 1993, a Fayette County grand jury
returned an indictment against Smith charging him with assault
1
Kentucky Rules of Civil Procedure.
in the first degree,2 and operating a motor vehicle under the
influence (DUI).3
On September 17, 1993, Smith pled guilty to an
amended charge of assault under extreme emotional disturbance.4
The Fayette Circuit Court entered its final judgment on November
9, 1993, at which time Smith was sentenced to three years’
imprisonment, which was probated for a period of five years.
While on probation Smith was convicted on August 31,
1998, of two counts of incest,5 and of being a persistent felony
offender in the second degree (PFO II).6
Consequently, Smith’s
probation was revoked for “failing to refrain from violating the
law,” and on September 22, 1998, he was sentenced to an
indeterminate sentence of three years on the 1993 assault
conviction.
This three-year sentence was ordered to “run
concurrently with any previous felony sentence the defendant
must serve.”
Smith did not file a direct appeal.
On November 22, 2000, Smith filed a RCr7 11.42 motion
to correct the final judgment and sentence entered on November
2
Kentucky Revised Statutes (KRS) 508.010.
3
KRS 189A.010.
4
KRS 508.040.
5
KRS 530.020.
6
KRS 532.080(2). Smith was convicted on August 31, 1998, and on October 16,
1998. He was sentenced to ten years on each of the two convictions of
incest, enhanced to 12 1/2 years by the PFO II convictions. The sentences
were ordered to run consecutively.
7
Kentucky Rules of Criminal Procedure.
-2-
9, 1993.
In his RCr 11.42 motion Smith argued that the three-
year sentence he received in 1993 should run concurrently with
the 25-year sentence he received in 1998.8
Smith claimed that
when he was sentenced on the assault conviction the trial court
ordered his sentence to run concurrently with any prior felony
sentences.
This argument was rejected, however, as Smith’s 1998
incest convictions were subsequent to his 1993 sentence for
assault.
Thus, any sentence imposed on Smith in 1998 was not
covered by the order sentencing him to three years to run
concurrently with any previous felony sentence.
The incest
convictions were not previous to the assault conviction.
Smith’s RCr 11.42 motion was denied on March 12, 2001.9
On November 2, 2001, Smith filed a CR 60.02 motion to
vacate his sentence.
Smith argued that in 1993 the trial court
failed to impose a sentence of imprisonment prior to sentencing
him to probation.
Smith further argued that without an
underlying sentence of imprisonment, the trial court lost
jurisdiction in his case and could not sentence him later, after
the terms of his probation were violated.
The trial court
denied Smith’s CR 60.02 motion on November 14, 2001.
This
appeal followed.
8
Smith also has pending before this Court a consolidated appeal (2001-CA002781-MR and 2001-CA-002783-MR) pertaining to his 1998 incest conviction.
9
The record reflects that Smith filed a notice of appeal (2001-CA-000696) on
April 2, 2001; however, after Smith sent a letter stating that he no longer
wished to pursue his appeal, the appeal was dismissed on September 12, 2001.
-3-
It is well settled that CR 60.02 is not intended to
provide criminal defendants with an additional opportunity to
relitigate the same issues which could reasonably have been
presented in RCr 11.42 proceedings.10
Smith should have raised
the issues that he has raised in his CR 60.02 motion pertaining
to the 1993 assault conviction in his RCr 11.42 motion.
Furthermore, Smith’s brief fails to comply with several of the
mandates set forth in CR 76.12.
Nevertheless, in the interest
of justice we have chosen to address Smith’s arguments in this
appeal.
Smith argues that the trial court abused its
discretion by denying his CR 60.02 motion to vacate his sentence
because of his claim that the trial court failed to impose a
sentence of imprisonment at the time of his 1993 assault
conviction.
More specifically, Smith claims the Fayette Circuit
Court never fixed a sentence of imprisonment as mandated by KRS
532.030 and only imposed a sentence of probation, as provided
for in KRS 532.040.
Thus, Smith contends that when he violated
the terms of his probation, there was no underlying sentence of
imprisonment triggered by the revocation of probation.
The
argument follows that by failing to impose a sentence of
imprisonment, the trial court lost jurisdiction to sentence
10
McQueen v. Commonwealth, Ky., 948 S.W.2d 415, 416 (1997).
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Smith in 1998.11
Accordingly, our analysis in this case turns upon the
interrelationship between KRS 532.030 and KRS 532.040.
language contained in KRS 532.030 is mandatory.
The
The statute
explicitly provides that upon conviction a person “shall have
his punishment fixed” at death, imprisonment or fine as may be
appropriate depending on the offense committed.
The language
contained in KRS 532.040, however, is permissive.
KRS 532.040
permits a court to “sentence such person to a period of
probation or to a period of conditional discharge as provided by
[KRS Chapter 533].”
Moreover, KRS 532.040 further provides that
“[a] sentence to probation or conditional discharge shall be
deemed a tentative one to the extent that it may be altered or
revoked in accordance with KRS Chapter 533 . . . .”
The Supreme Court of Kentucky explained the
relationship between these two statutes in Commonwealth v.
Tiryung.12
In Tiryung, the Supreme Court concluded that the
statutes should be read together as complementary to each other
rather than as alternatives.13
The Supreme Court went on to hold
that the statutory scheme requires imposition of a sentence of
11
A trial court generally loses jurisdiction of a case ten days after final
judgment has been entered. See Commonwealth v. Gross, Ky., 936 S.W.2d 85, 87
(1996) and CR 59.05.
12
Ky., 709 S.W.2d 454 (1986).
13
Id. at 456.
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imprisonment or a fine upon conviction, which must be rendered
without unreasonable delay and before sentencing to probation.14
Therefore, a judgment or order which contains only a “sentence
of probation” is not sufficient to meet the requirements under
KRS 532.030 and KRS 532.040.15
The judgment must contain
language fixing punishment at a specific term of imprisonment or
fine, followed by language imposing such punishment or by
language imposing a sentence of probation.16
Simply put, “a
defendant is first sentenced to an indeterminate term of
imprisonment under KRS 532.030; then, the judge may set aside
that tentative sentence and further sentence the defendant to
probation or conditional discharge under KRS 532.040.”17
The trial court did in fact fix Smith’s sentence at an
indeterminate sentence, the maximum of which was set at three
years.
The following language is taken directly from the final
judgment entered by the trial court on November 9, 1993:
[I]t is hereby ORDERED AND ADJUDGED that the
defendant’s sentence shall be fixed at an
indeterminate sentence, the maximum term of
which shall be 3 years, but entry of the
14
Id.
15
“[P]robation standing alone does not function as a sentence because it
provides no authorized penalty . . . .” Id. at 455.
16
There is no requirement that the language fixing and imposing punishment be
contained in one judgment. As long as both the fixing of punishment and
imposing of it, or of probation, or of conditional discharge, are present,
the sentencing requirements of KRS 532.030 and KRS 532.0404 are met.
17
Hamilton v. Commonwealth, Ky.App., 754 S.W.2d 870, 871 (1988).
-6-
judgment imposing sentence is hereby
withheld, and the defendant is placed on
probation for a period of 5 years . . . .
Thus, the record clearly refutes Smith’s argument.
As indicated
above, the trial court did in fact sentence Smith to an
indeterminate term of imprisonment under KRS 532.030.
Thereafter, the trial court withheld imposition of the sentence
and placed Smith on probation pursuant to KRS 532.040.
Smith
was sentenced properly and according to the sentencing scheme.
The record in this case is simply devoid of any indication that
the trial court in sentencing Smith failed to comply with the
statutory framework in this Commonwealth.18
Accordingly, Smith
has failed to demonstrate why he is entitled to the
extraordinary relief he is seeking.19
For the foregoing reasons, the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
18
Smith also raises an ineffective assistance of counsel allegation on
appeal, claiming his counsel was ineffective for failing to challenge the
sentencing hearing. This argument is completely without merit, however, as
Smith’s trial counsel had no sound basis upon which to challenge the
sentencing hearing.
19
See McQueen, 948 S.W.2d at 416 (holding that a CR 60.02 movant must
demonstrate why he is entitled to special, extraordinary relief).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Larry Ray Smith, Pro Se
Burgin, Kentucky
Albert B. Chandler III
Attorney General
Rickie L. Pearson
Assistant Attorney General
Frankfort, Kentucky
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