COCHRAN (EWELL) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: AUGUST 15, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE BETH LEWIS MAZE, JUDGE
ACTION NO. 00-CR-00076
COMMONWEALTH OF KENTUCKY
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BEFORE: DIXON, LAMBERT, AND STUMBO, JUDGES.
STUMBO, JUDGE: This is an appeal of the denial of a Kentucky Rule of Civil
Procedure (CR) 60.02 motion in which Ewell Cochran (Appellant) argued that he
should have been sentenced to a maximum of twenty (20) years in prison as
opposed to the fifty (50) year sentence he received. The trial court denied the
motion finding that the argument should have been brought on direct appeal of his
conviction and that a CR 60.02 motion was not the proper avenue to pursue this
argument. The Commonwealth uses this same argument in its brief, but also
argues that the 50-year sentence was proper. We find that Appellant’s argument
should have been brought on direct appeal. We also find that even if a CR 60.02
motion is the proper avenue for this argument, it is without merit as the 50-year
imprisonment term was properly calculated. We therefore affirm the denial of the
CR 60.02 motion.
Appellant was indicted for 15 counts of varying degrees of burglary.
He was tried by a jury in July, 2001. He was convicted of three counts of firstdegree burglary, one count of second-degree burglary, and ten counts of thirddegree burglary, with each sentence to run consecutively. The jury recommended
a total sentence of 96 years. The trial court, however, ultimately sentenced
Appellant to 50 years.
Appellant’s argument revolves around the interpretation of Kentucky
Revised Statute (KRS) 532.110(1)(c) which states:
(1) When multiple sentences of imprisonment are
imposed on a defendant for more than one (1) crime,
including a crime for which a previous sentence of
probation or conditional discharge has been revoked, the
multiple sentences shall run concurrently or
consecutively as the court shall determine at the time of
sentence, except that:
(c) The aggregate of consecutive indeterminate terms
shall not exceed in maximum length the longest extended
term which would be authorized by KRS 532.080 for the
highest class of crime for which any of the sentences is
imposed. In no event shall the aggregate of consecutive
indeterminate terms exceed seventy (70) years. . . .
Appellant argues that the court’s use of KRS 532.080 as set forth in sub-section (c)
above is unlawful in his case as KRS 532.080 deals with Persistent Felony
Offenders and he was not adjudicated as such.
The Commonwealth argues that this argument should have been
pursued during direct appeal. We agree.
Appellant raises this claim pursuant to CR 60.02, which
allows appeals based upon claims of error that “were
unknown and could not have been known to the moving
party by exercise of reasonable diligence and in time to
have been otherwise presented to the court.” CR 60.02 is
the codification of the common law writ of coram nobis,
which allows a judgment to be corrected or vacated based
“upon facts or grounds, not appearing on the face of the
record and not available by appeal or otherwise, which
were not discovered until after rendition of judgment
without fault of the parties seeking relief.” (Citations
Barnett v. Commonwealth, 979 S.W.2d 98, 101 (Ky. 1998). The sentence imposed
on Appellant was set forth “on the face of the record” and thus any challenge to the
calculations could have been known to Appellant with the exercise of reasonable
diligence. Thus, this issue was not properly brought via CR 60.02.
In any event, even if CR 60.02 was an appropriate avenue to seek
relief from this sentence, Appellant’s argument has no merit. The highest class of
crime Appellant was convicted of was first-degree burglary, which is a Class B
felony. According to KRS 532.110(1)(c), “[t]he aggregate of consecutive
indeterminate terms shall not exceed in maximum length the longest extended term
which would be authorized by KRS 532.080 for the highest class of crime for
which any of the sentences is imposed.” Under KRS 532.080(6)(a), a person
convicted of a Class A or Class B felony shall be sentenced to a term of not less
than 20 years and not more than 50 years. Since Appellant was convicted of a
Class B felony, the maximum sentence he could have received was 50 years.
Appellant would have us look to KRS 532.060(2)(b) for the maximum
number of years he was to receive. KRS 532.060(2)(b) states that the maximum
term of imprisonment for a Class B felony is not less than 10 years and not more
than 20 years. However, because Appellant was convicted on multiple counts,
KRS 532.110(1)(c) becomes the relevant statute. Appellant claims that since KRS
532.080 is the Persistent Felony Offender statute, and that statute is being utilized
to determine his maximum term of imprisonment, he is being declared a Persistent
Felony Offender. This is not the case.
Reference in KRS 532.110(1)(c) to KRS 532.080 is
concerned with the maximum number of years
imprisoned set out in the entire statute. The crossreference between the statutes did not depend on the
degree of a defendant’s status as a persistent felony
offender. Any other reading would produce an absurd
result and be contradictory to the plainly expressed
Commonwealth v. Durham, 908 S.W.2d 119, 121 (Ky. 1995). Appellant was not
indicted nor convicted as a Persistent Felony Offender. Just because that statute is
being utilized to determine his prison sentence does not mean he was deemed or
being treated as a Persistent Felony Offender. KRS 532.080 is simply a guide to
determine the possible term of imprisonment for someone who commits multiple
crimes and is given multiple sentences.
For the above reasons, we affirm the denial of Appellant’s CR 60.02
motion and find his 50-year term of imprisonment proper.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ewell Cockran, pro se
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General