WILBANKS (CORDERO) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 19, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
ACTION NO. 04-CR-002444
COMMONWEALTH OF KENTUCKY
VACATING AND REMANDING
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BEFORE: COMBS, CHIEF JUDGE; GUIDUGLI AND HENRY, SENIOR
COMBS, CHIEF JUDGE: Cordero Wilbanks appeals from a judgment of the
Jefferson Circuit Court ordering him to serve the remainder of a ten-year sentence
that he received before he reached the age of eighteen years. We vacate and
Senior Judges Daniel T. Guidugli and Michael L. Henry sitting as Special Judges by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580. Both Judge Guidugli and Judge Henry were assigned to this case prior to their
status as Senior Judges.
Wilbanks received a ten-year sentence for robbery in the first degree,
assault in the second degree, and burglary in the first degree. Since he was a
juvenile at the time of the offense, Wilbanks was transferred to circuit court as a
youthful offender pursuant to KRS2 635.020(4). That statute requires that offenses
committed by a juvenile with the use of a firearm be transferred to circuit court. A
re-sentencing hearing was held when Wilbanks reached eighteen years of age. The
circuit court determined that Wilbanks was statutorily ineligible for probation.
This case presents the same issue as was considered in Hickman v.
Commonwealth, 2005-CA-000640-MR. In Hickman, this court analyzed KRS
640.030, which requires a court to consider three options -- including probation -at an age-of-majority hearing. It also analyzed KRS 439.3401(1), which prohibits
probation for persons convicted of certain violent offenses -- such as those
committed by Wilbanks as a juvenile. As in the case before us, Hickman involved
a conflict between the two statutes, which we resolved by holding that KRS
640.030 should prevail over KRS 439.340(1).
In 2006, the Supreme Court of Kentucky granted discretionary review
to resolve a conflict between Hickman and another case involving the same issue.
We held Wilbanks’s case in abeyance pending a Supreme Court decision in those
cases. The Supreme Court of Kentucky consolidated the cases, and in
Commonwealth v. Merriman, ___ S.W.3d ___ (Ky 2008), 2008 WL4286508, the
court affirmed our holding in Hickman.
Kentucky Revised Statutes.
Therefore, we hold that the court erred in failing to follow the
requirement of KRS 640.030 that it consider all three options -- including
probation -- at Wilbanks’s hearing upon reaching majority. We direct that the
circuit court order a new majority hearing in order to consider all of the three
options required by KRS 640.030.
We vacate the judgment of the Jefferson Circuit Court and remand for
further proceedings consistent with this opinion.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth B. McMahon
Gregory D. Stumbo
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General