ROBERT W. MCKINNEY v. COMMONWEALTH OF KENTUCKY, KENTUCKY CORRECTIONS CABINET
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RENDERED: May 30, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000317-MR
ROBERT W. MCKINNEY
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 01-CI-00485
v.
COMMONWEALTH OF KENTUCKY,
KENTUCKY CORRECTIONS CABINET
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; BUCKINGHAM AND PAISLEY, JUDGES.
BUCKINGHAM, JUDGE.
Robert W. McKinney, a prison inmate in
Muhlenberg County, appeals from an order of the Muhlenberg
Circuit Court dismissing his petition for declaration of rights.
We affirm.
McKinney was convicted of multiple felony theft by
deception charges under Indictment Nos. 88-CR-055 and 88-CR-103
in Barren County, Kentucky, on September 13, 1988; under
Indictment No. 88-CR-008 in Metcalfe County, Kentucky, on
September 15, 1988; and under Indictment No. 88-CR-061 in
Bullitt County, Kentucky, on February 14, 1990.
The sentences
from Barren County were ordered to run concurrently with each
other but consecutively with the sentences from Metcalfe and
Bullitt counties, for a total sentence of eight years (1988/1990
sentence).
McKinney began serving this sentence on
September 12, 1988, and was paroled on January 29, 1991.
He subsequently committed additional crimes in
Kentucky and Texas.1
In November 1991, McKinney was arrested in
Texas for forgery and charged under Indictment No. 613269.
Thereafter, on December 19, 1991, McKinney’s parole was revoked
on his eight-year Kentucky sentence.
He was finally sentenced
in Texas on July 23, 1992, to ten years for forgery.
On May 19, 1993, McKinney entered a guilty plea to
multiple theft by deception charges under Indictment Nos. 91-CR1297, 91-CR-2457, 92-CR-0482, and 92-CR-1546 in Jefferson
County, Kentucky.
The court sentenced him, pursuant to a plea
agreement with the Commonwealth, to five years on each
indictment, enhanced to ten years due to persistent felony
offender status (1993 sentence).
The court ordered the
sentences to run concurrently with each other and concurrently
with the Texas sentence pursuant to the plea agreement.
1
The
The exact sequence of events is unclear from the record but is not pertinent
to the resolution of this case.
-2-
sentencing order did not specifically state how this sentence
was to run in relation to the 1988/1990 sentence.
However, the
order did state that “the sentence shall run pursuant to KRS
533.060, if applicable.”
McKinney’s parole was reinstated in November 1994 and
revoked again in May 1997.
In July 1997, by counsel, McKinney
filed a motion for habeas corpus relief in the Jefferson Circuit
Court, claiming the warrant issued on April 1, 1997, was
invalid, in that he was not on parole at the time of the alleged
parole violation.
McKinney argued that he had served the Texas
sentence and had, therefore, completed the ten-year Kentucky
sentence.
The Jefferson Circuit Court entered an order on
August 14, 1997 (1997 order), stating that “if the Defendant has
completed service of his sentence in the Texas case, then he has
completed service of his sentence in this case and is entitled
to be discharged.”
92-CR-0482.2
This order only referred to Indictment No.
McKinney was paroled again in 1999, but his parole
was later revoked.
On October 24, 2001, McKinney filed a petition for
declaration of rights, claiming that he was entitled to be
released on all of his Kentucky sentences at the expiration of
his Texas sentence on November 4, 2001.
2
The Commonwealth argued
McKinney claims that his attorney mistakenly only listed 92-CR-0482 in his
motion for habeas corpus relief and that, therefore, the court entered an
order pertaining only to that indictment.
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that, pursuant to KRS 533.060(2), when McKinney was sentenced in
1993, his 1993 convictions were required to run consecutively to
his 1988/1990 sentence and, as such, the Corrections Cabinet had
correctly calculated that McKinney had a total of 18 years to
serve, with a current minimum expiration date of August 16,
2004.
The Muhlenberg Circuit Court entered an order
dismissing McKinney’s petition on January 22, 2002, finding that
McKinney’s due process rights had not been violated and that the
Corrections Cabinet had “applied the applicable statute and the
Judgment as written by the sentencing courts.”
On appeal,
McKinney argues that he is being held beyond the term authorized
by the order of commitment from the Jefferson Circuit Court and
that he is entitled to be released from custody pursuant to KRS
197.035 and KRS 532.120.
In the order of judgment sentencing McKinney in 1993,
the Jefferson Circuit Court specifically stated that KRS 533.060
was to apply, if applicable.
applicable to McKinney.
KRS 533.060(2) was clearly
The statute states, in pertinent part,
as follows:
(2) When a person has been convicted of a
felony and is committed to a correctional
detention facility and released on parole or
has been released by the court on probation,
shock probation, or conditional discharge,
and is convicted or enters a plea of guilty
to a felony committed while on parole,
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probation, shock probation, or conditional
discharge, the person shall not be eligible
for probation, shock probation, or
conditional discharge and the period of
confinement for that felony shall not run
concurrently with any other sentence.
KRS 533.060(2).
Pursuant to the statute, McKinney’s 1993 Kentucky
sentence was required to run consecutively with his 1988/1990
sentence because he was on parole from the 1988/1990 sentence
when he committed the crimes.
Thus, McKinney was required to
serve a total of 18 years for his Kentucky convictions.3
McKinney argues that the 1997 order in response to his habeas
corpus motion evidences the intent of the trial court that all
of his Kentucky sentences were to run concurrently and,
therefore, at the expiration of the Texas sentence, he would
have completed the service of all his Kentucky sentences.
The 1997 order did not show an intent by the trial
court that McKinney’s 1988/1990 sentence run concurrently with
his 1993 sentence.
First, pursuant to KRS 533.060(2), the
1988/1990 sentence was required to run consecutively because
McKinney was on parole when he committed the subsequent
offenses.
Further, the 1993 sentencing order specifically
stated that KRS 533.060 was to apply, if applicable.
3
We also
McKinney has presented no evidence that, as part of the 1993 plea agreement,
the 1988/1990 sentence was to be run concurrently with the 1993 and Texas
sentences. There is no reference to the 1988/1990 sentence in either the
plea agreement or the judgment.
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note that McKinney‘s motion for habeas corpus relief failed to
discuss the 1988/1990 sentence, which was required to run
consecutively to the 1993 sentence.
The only argument made by
McKinney was that he had served the Texas sentence and that,
therefore, he was entitled to be released from prison on the
1993 sentence.4
Under the circumstances, we cannot say the trial
court intended to bypass the mandatory provisions of KRS
533.060, requiring consecutive sentencing.
KRS 532.120(1)(b) states, “[i]f the sentences run
consecutively, the maximum terms are added to arrive at an
aggregate maximum term equal to the sum of all the maximum
terms.”
As such, the aggregate of McKinney’s Kentucky sentences
was 18 years.
Merely because McKinney was paroled on the ten-year
Texas sentence does not mean that he should be deemed to have
served the ten-year 1993 Kentucky sentence.
Wingo, Ky., 467 S.W.2d 369, 370 (1971).
See Rodgers v.
Furthermore, the ten-
year sentences of Texas and Kentucky became part of the
aggregate sentence of 18 years when combined with the eight-year
1988/1990 sentence.
See KRS 532.120(1)(b).
Therefore, while
McKinney is entitled to receive credit for time served on the
Texas sentence toward the service of the 18-year aggregate
4
McKinney had not actually finished serving the Texas sentence at the time he
filed the motion for habeas corpus relief.
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sentence, he was not entitled to automatic release due to
satisfaction of the sentence.
The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert W. McKinney, Pro Se
Central City, Kentucky
Rebecca Baylous
Frankfort, Kentucky
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