CHYRALLE ROWAN v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 20, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2003-CA-000690-MR
CHYRALLE ROWAN
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NOS. 81-CR-000466 & 81-CR-000987
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND KNOPF, JUDGES.
KNOPF, JUDGE:
In March 1981, while on probation for a 1976
conviction for robbery, Chyralle Rowan burglarized a residence
in Anchorage.
He was indicted for the burglary in April 1981
and released on bond.
In August 1981, while awaiting trial for
the April offense, Rowan burglarized another residence.
indicted for this second burglary in September 1981.
September 1982, Rowan pled guilty to both charges.
He was
In
The plea
agreement provided for ten-year sentences for each, with one of
the sentences enhanced to twenty years because of Rowan’s status
as a persistent felon.
The sentences were to run consecutively
for a total sentence of thirty years.
By judgment entered
September 9, 1982, the Jefferson Circuit imposed the thirty-year
sentence.
In January 2003, Rowan moved the circuit court
pursuant to CR 60.02 for relief from this sentence because, he
alleged, it violated the twenty-year limit for an aggregate
sentence established by KRS 532.110(1)(c) and KRS 532.080(6)(b).
By order entered March 12, 2003, the circuit court denied
Rowan’s motion.
Rowan has appealed pro se from that denial and
insists that the trial court misapplied the sentencing statutes.
We affirm.
As the Commonwealth correctly notes, KRS 533.060
mandates consecutive sentences for offenses committed while the
defendant is on probation or awaiting trial.
Our Supreme Court
has held that if KRS 533.060 applies to a sentence, then the
limits imposed by KRS 532.110 do not apply.1
KRS 533.060 applies
separately to each of Rowan’s sentences, and thus mandates that
they be served consecutively to each other as well as to Rowan’s
reinstated sentence for the 1976 robbery.
1
The cases upon which
Devore v. Commonwealth, Ky., 662 S.W.2d 829 (1984).
2
Rowan relies are not to the contrary.
They involve the
application of KRS 532.110 when KRS 533.060 does not apply.
Rowan contends that because KRS 533.060 was amended
after his offenses, application of the amended statute to him
violates the constitution’s Ex Post Facto Clause.
It was not,
however, the amended version of the statute that was applied.
KRS 533.060 was first adopted in 1976, and every version of the
statute in effect since then, including the version in effect at
the time of Rowan’s offenses, has mandated consecutive sentences
for offenses committed during probation or pre-trial release.
The trial court, therefore, did not err by denying
Rowan’s motion for sentencing relief.
Accordingly, we affirm
the March 12, 2003, order of the Jefferson Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Chyralle Rowan, pro se
Lexington, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky
3
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