DEXTER W. BURGESS v. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 10, 2006; 2:00
NOT TO BE PUBLISHED
P.M.
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000708-MR
DEXTER W. BURGESS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 99-CR-00904
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON AND VANMETER, JUDGES; MILLER, SENIOR JUDGE.1
MILLER, SENIOR JUDGE:
Dexter W. Burgess (Burgess) brings this
appeal from an order of the Fayette Circuit Court, entered March
18, 2005, summarily overruling his motion to vacate or correct
sentence pursuant to Kentucky Rules of Criminal Procedure (RCr)
11.42.
1
We affirm.
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
Because the issues herein involve the interplay of
cases from both Fayette and Hardin counties, the following is a
summary of the proceedings from both cases.
In August, 1998, a criminal complaint alleged an
attempted murder charge against Burgess in Hardin County.
Almost a year later, on July 14, 1999, the instant
charges of first-degree trafficking in a controlled substance,
possession of drug paraphernalia, possession of marijuana,
terroristic threatening, and alcohol intoxication arose against
Burgess in Fayette County.2
Fayette County Information No. 99-
CR-00904.
On September 3, 1999, Burgess entered an unconditional
guilty plea to the first three Fayette County charges, with a
recommended sentence of five years, 12 months, and 12 months,
and the last two charges dismissed.
Although mention was made
during the plea of the pending Hardin County charge, no part of
the plea was conditioned upon the pending charge.
Apparently at
the time of the plea, the Hardin County charge was still on a
pending complaint -– Burgess had not yet been indicted.
On May 31, 2000, in Fayette Circuit Court, Burgess was
sentenced to a total of five years’ imprisonment pursuant to his
guilty plea.
The pending Hardin County charge was discussed at
2
Kentucky Revised Statutes 218A.1412 (class C felony); 218A.500 (class A
misdemeanor); 218A.1422 (class A misdemeanor); 508.080 (class A misdemeanor);
222.202 (violation).
-2-
sentencing insofar as the total amount of custody credit.
The
only specific reference in the Fayette County judgment to the
pending Hardin County charge was that Burgess was to be
delivered to the state department of corrections “upon
disposition of (his) pending criminal charge in Hardin County.”
Additionally, the Fayette County judgment was “run concurrently
with any other previous felony sentence (Burgess) must serve.”
On June 5, 2000, Burgess entered an unconditional
guilty plea to the Hardin County charge, which had been amended
to first-degree wanton endangerment.3
On August 16, 2000,
judgment was entered sentencing Burgess to a total of five
years’ imprisonment, said sentence probated for five years.
Hardin County Indictment 99-CR-00349.
On December 20, 2000, the Fayette Circuit Court
probated Burgess’s Fayette County judgment for a period of five
years under the “shock” probation statute.4
On July 30, 2002, Burgess was arrested and charged in
Hardin District Court with various felonies (02-F-00376), as
well as on a bench warrant issued May 6, 2002 (Hardin County
Indictment No. 02-CR-00190).
Upon arraignment on the circuit
court indictment, he was served with a motion to revoke
probation on Hardin Indictment No. 99-CR-00349.
3
Kentucky Revised Statutes 508.060 (class D felony).
4
Kentucky Revised Statutes 439.265.
-3-
On September 3,
2002, the five years’ probation on the Hardin County Indictment
was revoked and Burgess was sentenced to five years.
On September 13, 2002, Burgess was served with a bench
warrant for violation of probation on the Fayette County
Indictment.
Appearing before the Fayette Circuit Court on
October 11, 2002, the trial court revoked Burgess’s probation.
Burgess’s attorney asked for any revocation to run concurrently
with the five years from the Hardin County revoked sentence.
Counsel also noted for the court that Burgess had additional
pending charges in Hardin Circuit and District Court.
At the
revocation hearing the court ordered the revoked five year
sentence to run consecutively with “any other time.”
At odds
with the circuit court’s directive from the bench, the order
revoking probation, entered October 15, 2002, erroneously
reflected that the revoked sentence was to run concurrently with
any other previous felony sentence.
The next day, October 16,
2002, the revocation order was amended to reflect that the
sentence was “run consecutively with any other previous felony
sentence (Burgess) must serve.”
On July 12, 2004, Burgess filed a pro se RCr 11.42
motion, later supplemented by counsel, claiming that the court’s
probation revocation order, which ran his revoked Fayette County
sentence consecutive with any previous felony sentence,
improperly changed the terms of the court’s original judgment
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that provided for a five year sentence to run concurrently with
any previous felony sentence, the practical effect of which was
that the five year revoked sentence in Fayette County would run
consecutively with the five year revoked sentence in Hardin
County for a total of ten years.
More specifically, he argued
that the Fayette Circuit Court was without any authority in the
shock probation revocation order to amend its original final
judgment.
His requested relief was to impose the five year
Fayette Circuit Court judgment concurrently with the five year
Hardin Circuit Court judgment.
The trial court summarily denied
Burgess’s motion, concluding based on stated authority that it
was within the court’s discretion to run the five year revoked
sentence consecutive or concurrent, citing Kentucky Revised
Statutes (KRS) 533.040; Myers v. Commonwealth, 836 S.W.2d 431
(Ky.App. 1992), overruled on other grounds Sutherland v.
Commonwealth, 910 S.W.2d 235 (Ky. 1995); Snow v. Commonwealth,
927 S.W.2d 841 (Ky.App. 1996); and Commonwealth v. Brewer, 922
S.W.2d 380 (Ky. 1996).
This appeal followed.
Before us, Burgess argues that the trial court abused
its discretion in violation of his federal and state
constitutional rights5 by changing his sentence, upon the
probation revocation, to run consecutively, instead of
concurrently, with the Hardin County judgment.
5
U.S. CONST. amend. XIV; KY. CONST. § 2.
-5-
Additionally, he
argues that the consecutive sentence violated his federal and
state rights against double jeopardy.6
We review questions of fact under the clearly
erroneous standard of Kentucky Rules of Civil Procedure (CR)
52.01 and questions of law de novo.
See generally Brown v.
Commonwealth, 40 S.W.3d 873, 875 (Ky.App. 1999).
As we conclude
that the findings of the circuit court are supported by
substantial evidence and are not an abuse of discretion, and
that the circuit court correctly applied the law, we affirm.
Burgess first argues that the trial court abused its
discretion by changing his sentence from concurrent to
consecutive, arguing that the “concurrent” reference in the
original judgment related to the Hardin County charge.
Specifically, he contends that because the pending Hardin County
charge was discussed and understood by the court and all parties
at the time the Fayette County sentence was imposed, that the
Fayette County judgment was specifically referring to the Hardin
County sentence when the Fayette County judgment provided that
it was to “run concurrently with any other previous felony
sentence (Burgess) must serve.”
support this allegation.
The record does not, however,
Although Burgess’s motion to enter a
guilty plea referenced the pending attempted murder charge in
Hardin County, on the face of the motion the plea was not
6
U.S. CONST. amend. V; KY. CONST. § 13.
-6-
conditioned in any manner on the pending charge.
The original
Fayette County judgment ordered the five years “run concurrently
with any other previous felony sentence (Burgess) must serve.”
There is no evidence of record that at the time of entry of the
Fayette County judgment, Burgess had any previous felony
conviction; to be sure, he had not entered a plea on or been
sentenced to the Hardin County charge, and there is no evidence
of record of any other previous felony conviction.
As there was
no previous felony conviction upon which to run the Fayette
County charge concurrently, the language directing any previous
felony conviction to be run concurrently has no legal effect and
is, as such, surplusage.
Bray v. Weaver, 453 S.W.2d 7, 8 (Ky.
1970); City of Harrodsburg v. McCord, 342 S.W.2d 714 (Ky. 1961).7
The Fayette Circuit Court’s order overruling Burgess’s
RCr 11.42 motion makes factual findings consistent with the
above evidence of record.
In that order, the trial court
emphasized that the provision in the Fayette County judgment ran
that sentence “concurrently with any previous felony sentence
(Burgess) must serve.”
Emphasis in original.
7
As the record
Indeed, Burgess would have been in the same position had the original
judgment omitted the referenced language, because Kentucky Revised Statutes
532.110(2) would have required in the absence of language otherwise that the
Fayette County sentence run concurrently with any other sentence that Burgess
must serve. The problem still would have remained, however, that at the time
of the original judgment, Burgess was not subject to the Hardin County
sentence.
-7-
substantially supports the trial court’s findings, we conclude
that the court’s findings are not clearly erroneous.
With the “concurrent” language in the original
judgment having no effect, the question arises as to whether the
Fayette Circuit Court had the authority, upon revoking Burgess’s
probation, to order the revoked sentence run consecutively with
any other previous felony sentence that Burgess must serve
(e.g., the five years on the Hardin County revoked sentence,
that occurred while Burgess was on shock probation for the
Fayette County sentence).
authority.
KRS 533.040(3) provides the
Pursuant to that statutory provision, a probated
sentence (Fayette County) is required to run concurrently with
any state jail or prison term for another offense to which the
defendant became subject during the period of probation (Hardin
County), unless the sentence of probation (Fayette County) is
revoked.
The revocation gives the trial court discretion to run
the sentence consecutively.
See generally, Myers, supra at 433;
Snow, supra at 843; Gavel v. Commonwealth, 674 S.W.2d 953 (Ky.
1984); and, Walker v. Commonwealth, 10 S.W.3d 492 (Ky.App.
1999).
Thus, the Fayette Circuit Court had authority to run
Burgess’s revoked time consecutively with any previous felony
conviction, in this case, the Hardin County sentence.
error in the court’s application of the law.
-8-
We see no
Additionally, Burgess’s argument that the trial court
lost jurisdiction of the judgment is without merit.
The trial
court is allowed to reacquire jurisdiction for the purpose of
shock probation.
Mullins v. Commonwealth, 956 S.W.2d 222, 223
(Ky.App. 1997).
Obviously, thus, the trial court is allowed to
reacquire jurisdiction for the purpose of probation revocation.
We further conclude that the imposition of the
consecutive sentence on the probation revocation does not
subject Burgess to double jeopardy.
There was no alteration of
Burgess’s original Fayette County sentence of five years.
Burgess cites us to no authority disallowing the court’s
discretion, under the law, to run a revoked sentence
consecutively to a previous felony conviction.
The trial court,
when presented with Burgess’s subsequent Hardin County felony
and probation revocation, was presented with the statutory
discretion to run the Fayette County probation revocation
consecutive.
There was no error in the trial court’s
application of the law.
For the foregoing reasons, the order of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Brian Thomas Ruff
LaGrange, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
William Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
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