WILLIAM CASHWELL v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 30, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001200-MR
WILLIAM CASHWELL
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PARTICIA M. SUMME, JUDGE
ACTION NO. 00-CR-00570
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
COMBS, CHIEF JUDGE; McANULTY, JUDGE; POTTER, SENIOR
COMBS, CHIEF JUDGE:
William Cashwell appeals from an order of
the Kenton Circuit Court of May 2, 2005, revoking his probation
and ordering that he serve his prison sentence consecutively as
to two concurrent sentences that had been imposed by the
Campbell Circuit Court.
1
Cashwell argues that under the terms of
Senior Judge John W. Potter sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
KRS2 533.040(3), the Kenton and Campbell sentences must be served
concurrently because the revocation of his probation occurred
more than ninety (90) days after the Department of Corrections
became aware of the grounds for revocation.
Cashwell is correct
in arguing that the revocation of probation by the Kenton
Circuit Court was indeed untimely for the purposes of KRS
533.040(3).
However, that statute does not apply because a
previous order of the Campbell Circuit Court had already
directed that the sentences were to be served consecutively as
mandated under KRS 533.060(3).
Accordingly, we affirm the order
of the Kenton Circuit Court.
On October 20, 2000, Cashwell was indicted in Kenton
County on a charge of first-degree fleeing or evading police, a
class D felony.
Approximately two months later, on December 9,
2000, Cashwell committed the offenses of fraudulent use of a
credit card and of being a persistent felony offender in the
second degree in Campbell County.
On November 7, 2001, Cashwell entered a plea of guilty
in Kenton Circuit Court to the charge of fleeing or evading
police for which he received a five-year sentence -- probated
for five years.
On April 1, 2002, he entered a guilty plea in
Campbell Circuit Court on charges of fraudulent use of a credit
card and PFO second.
2
Ten days later, again in Campbell Circuit
Kentucky Revised Statutes.
-2-
Court, he received another five-year probated sentence after
entering a plea of guilty to flagrant non-support and to being a
persistent felony offender in the second degree.
The Campbell
Circuit Court ordered that these two sentences run concurrently
with each other but consecutively as to the Kenton County
sentence.
On June 25, 2002, Cashwell was reported by a probation
officer as having violated the terms of his probation in Kenton
County.
He was arrested on June 29, 2002.
On July 17, 2002, he
was placed on active supervision and was given additional terms
of probation.
On October 22, 2002, another affidavit was filed by
Cashwell’s probation officer in the Kenton Circuit Court stating
that Cashwell had again violated the terms of his probation.
warrant for his arrest was issued on the same day.
A
The
Commonwealth filed a motion to revoke probation on December 18,
2002.
As of a hearing date of January 13, 2003, the Kenton
Circuit Court was informed that Cashwell had not yet been picked
up.
On November 12, 2003, Cashwell appeared before the
Campbell Circuit Court for a probation revocation hearing for
fraudulent use of credit.
His probation was revoked, and he was
sentenced to serve five years on both of his earlier offenses --
-3-
to run concurrently with one another but consecutively to the
Kenton Circuit Court sentence.
Nearly 120 days later, on March 15, 2004, the Green
River Correctional Complex sent a Detainer Acknowledgment
notifying the Kenton Circuit Court that Cashwell was in custody
at the complex.
On November 8, 2004, Cashwell filed a motion in
Kenton Circuit Court seeking concurrent sentencing pursuant to
KRS 533.040(3).
After conducting a hearing, the Kenton Circuit
Court revoked his probation and ordered that his sentences were
to run consecutively on the grounds that KRS 533.060(3) was the
controlling statute.
This appeal followed.
Cashwell argues that the Kenton Circuit Court erred in
ruling that his Kenton County sentence must run consecutively to
his Campbell County sentences because his probation in Kenton
County was not revoked within ninety days as required by KRS
533.040(3), which provides:
[a] sentence of probation or conditional
discharge shall run concurrently with any
federal or state jail, prison, or parole
term for another offense to which the
defendant is or becomes subject during the
period, unless the sentence of probation or
conditional discharge is revoked. The
revocation shall take place prior to parole
under or expiration of the sentence of
imprisonment or within ninety (90) days
after the grounds for revocation come to the
attention of the Department of Corrections,
whichever occurs first.
-4-
The Commonwealth argues correctly that the original
order of the Campbell Circuit Court (entered in April 2002)
specifically mandated that his Campbell County sentences were to
run consecutively to his previous (then probated) Kenton County
sentence.
KRS 533.060(3) provides as follows:
When a person commits an offense while
awaiting trial for another offense, and is
subsequently convicted or enters a plea of
guilty to the offense committed while
awaiting trial, the sentence imposed for the
offense committed while awaiting trial shall
not run concurrently with confinement for
the offense for which the person is awaiting
trial. (Emphasis added.)
There is no dispute that Cashwell committed the
offense of fraudulent use of a credit card in Campbell County
after his indictment in Kenton County on the fleeing and evading
charge.
He committed that offense while awaiting trial for
another offense.
Thus, KRS 533.060(3) immediately came into
play, and the Campbell Circuit Court properly ordered that the
sentences had to run consecutively.
Our case law requires consecutive running of these
sentences.
There is no doubt that, with regard to KRS
533.060(3), it was the General Assembly’s
intent ‘to punish persons who were convicted
of committing a subsequent crime or crimes
while awaiting trial more severely by
eliminating the possibility of concurrent
sentences.’
-5-
Cosby v. Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004) citing Moore
v. Commonwealth, 990 S.W.2d 618, 621 (Ky. 1999)(emphasis added).
The precise issue of which statute should take precedence in
case of a conflict was addressed by the Kentucky Supreme Court
in Brewer v. Commonwealth, 922 S.W.2d 380 (1996), with the Court
ruling that since KRS 533.060(2) was the more recently enacted
of the two statutes, it should prevail over KRS 533.040(3).
See
also Adams v. Commonwealth, 46 S.W.3d 572, 576 (Ky.App. 2000),
citing Brewer.
The order of the Kenton Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks Tandy
Covington, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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