JOHN PATRICK DOOLAN V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
IMPOR 'ANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PR OCED URE PROMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (e), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITYIN ANY OTHER
CASE INANY CO UR T OF THIS STA TE.
RENDERED : JANUARY 22, 2004
NOT TO BE PUBLISHED
,$ixprsme Cnnixxf n{
~fte*rhj4]
2002-SC-0865-MR
JOHN PATRICK DOOLAN
V
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON
NOS. 94-CR-000473 AND 94-CR-001483
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant was convicted by a jury in the Jefferson Circuit Court of two counts of
robbery in the first-degree . The jury sentenced him to two consecutive twenty-year
terms. These sentences were further enhanced to fifty years each after the jury found
Appellant to be a persistent felony offender (PFO) in the first-degree . On his prior
appeal of that sentence, this Court affirmed Appellant's conviction but remanded the
case to the Jefferson Circuit Court with directions that the court reduce Appellant's
sentence to the statutory limit of seventy years imposed by KRS 532 .110(c) . The trial
court issued an Amended Jury Trial Judgment of Conviction and reduced the second
count of robbery in the first-degree to twenty years, thereby reducing Appellant's total
sentence to seventy years . Appellant now alleges that his sentence is still illegal
because it is not clear from the amended judgment whether the trial court erroneously
ordered that his PFO-enhanced sentence run consecutively to the underlying sentence
of robbery in the first-degree . He appeals to this Court as a matter of right and asks that
we remand with directions that the trial court impose "a clearly legal sentence ." Ky.
Const. § 110(2)(b) . Finding no error in the reduction of sentence pursuant to our
previous order, we affirm.
We first note that the Commonwealth states, and Appellant concedes, that this
issue was not presented to the court below. However, we have repeatedly held that all
defendants have a right to be sentenced in accordance with the law, and accordingly,
that sentencing is "jurisdictional" in the sense that it cannot be waived by failure to
object at the time judgment is entered . Hughes v . Commonwealth , Ky., 875 S .W.2d 99,
100 (1994) ; Wellman v. Commonwealth , Ky., 694 S.W .2d 696, 698 (1985) . The
Commonwealth states that Hughes, supra, was overruled by our decision in M ers v.
Commonwealth , Ky., 42 S.W .3d 594 (2001), and that, therefore, Appellant has not
preserved the issue for this Court's review . Myers, however, merely held that a
defendant could waive the protections of KRS 532 .110(c) pursuant to a plea agreement,
and that decision did not overrule Hughes. Id . at 597 . Accordingly, we will consider
Appellant's allegation of sentencing error.
Appellant alleges that the trial court may have impermissibly run his enhanced
sentence for being a PFO consecutive to his sentence on the underlying charge, and
that this is proscribed by our decisions in Pace v. Commonwealth , Ky., 636 S .W.2d 887
(1982) (overruled on other grounds by Commonwealth v. Harrell , Ky., 3 S .W.3d 349
(1999)), and Covington v. Commonwealth , Ky ., 481 S .W.2d 62 (1972) . If this were what
the trial court had in fact done, we agree that such a judgment would be error pursuant
to the above-cited authorities . However, the trial court merely reduced the second
count of robbery in the first-degree to reflect that no PFO enhancement was applied to
that charge . The first count of robbery in the first-degree remains enhanced by
Appellant's status as a PFO, and that charge runs consecutive to the second count of
robbery. Therefore, the PFO-enhanced count runs consecutive, not to the underlying
first count of robbery, but to the separate, second count of robbery. The trial court
properly complied with this Court's order to reduce Appellant's sentence in accordance
with KRS 532 .110(c) . A trial court has wide discretion when imposing a sentence .
Jones v. Commonwealth , Ky ., 833 S.W.2d 839, 842 (1992) . There was no error.
For the reasons stated above, we hereby affirm the Jefferson Circuit Court's
judgment .
Lambert, C.J . ; Cooper, Johnstone, Stumbo, and Wintersheimer, JJ., concur.
Keller, J ., concurs by separate opinion, with Graves, J ., joining that separate opinion .
COUNSEL FOR APPELLANT :
John Palombi
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D . Stumbo
Attorney General
Capitol Building
Frankfort, KY 40601
Perry T. Ryan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : JANUARY 22, 2004
NOT TO BE PUBLISHED
,*ixyrntt (gourf of 'ruturkV
2002-SC-0865-MR
JOHN PATRICK DOOLAN
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON
NOS . 94-CR-000473 AND 94-CR-001483
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
CONCURRING OPINION BY JUSTICE KELLER
In the interest of judicial economy, I concur in the result reached by the majority,
but write separately because I disagree with the majority opinion's suggestion that "[t]he
trial court properly complied with this Court's order to reduce Appellant's sentence in
accordance with KRS 532 .110(c)[,)"' and to express my view that the trial court reached
an improper "solution" to the "problem" of how to impose a lawful, seventy (70) year
aggregate sentence in this case.
The trial court's August 2000 judgment imposed fifty (50) year sentences for
each of Appellant's two (2) First-Degree-PFO-enhanced, First-Degree Robbery
convictions that were fixed by the jury's verdict, and, in accordance with the jury's
recommendation, ordered the two sentences to run consecutively to one another for an
aggregate sentence of one hundred (100) years, i .e . , a sentence that unquestionably
ran afoul of KRS 532.110(c), which provides "[i]n no event shall the aggregate of
Slip Op. at 3 .
consecutive indeterminate terms exceed seventy (70) years ."2 After this Court reversed
the unlawful aggregate sentence and remanded the case to the trial court "with
instructions that the Appellant's sentence be reduced to the statutory limit, seventy
years[,] "3 the trial court attempted to accomplish that result - apparently by reducing the
PFO-enhanced sentence for the second of Appellant's two (2) First-Degree Robbery
convictions from fifty (50) to twenty (20) years, i .e . , the minimum First-Degree-PFOenhanced sentence for a Class B Felony,4 but continuing to order the sentences for the
two (2) convictions to run consecutively to one another for a total aggregate sentence of
seventy (70) years. KRS 532 .070(1) is the only statutory authority for such a reduction
of a sentence fixed by a jury:
When a sentence of imprisonment for a felony is fixed by a
jury pursuant to KRS 532.060 and the trial court, having
regard to the nature and circumstance of the crime and to
the history and character of the defendant, is of the opinion
that a sentence of imprisonment is necessary but that the
maximum term fixed by the jury is unduly harsh, the court
may modify that sentence and fix a maximum term within the
limits provided in KRS 532 .060 for the offense for which the
defendant presently stands convicted .5
KRS 532 .070, however, provides no authority for the sentence reduction that occurred
in this case, i .e. , where the trial court reduced Appellant's sentence under Count II to
twenty (20) years not to avoid an "unduly harsh" jury verdict, but in an attempt to avoid
2 KRS 532 .110(c) .
3 Doolan v. Commonwealth , 2000-SC-0816-MR (Memorandum Opinion Affirming
in Part, Reversing and Remanding in Part Rendered March 21, 2002) (Slip Op. at 6).
4 See KRS 532.080(6)(a) ("If the offense for which he presently stands convicted
is a . . . Class B felony, a persistent felony offender in the first degree shall be
sentenced to an indeterminate term of imprisonment, the maximum of which shall not
be less than twenty (20) years nor more than fifty (50) years[ .]").
5
KRS 532.070( 1).
an unlawful aggregate sentence. In its August 2000 final judgment, the trial court
implicitly rejected the notion that the fifty (50) year, PFO-enhanced sentence that the
jury fixed for Appellant's second First-Degree Robbery conviction was "unduly harsh"
when it not only imposed that fifty (50) year sentence, but also ran that sentence
consecutively to the other fifty (50) year sentence. I would further observe that the
amended judgment entered upon remand merely changed two (2) numbers - the length
of the sentence for Count II and the length of the aggregate sentence - and did not
contain any factual finding by the trial court that the jury's verdict as to Count II was
"unduly harsh ." Because KRS 532 .070(1) is not implicated when a jury's sentencing
recommendation is simply flawed rather than "unduly harsh ,,,6 the trial court had no
authority upon remand to "whittle away" thirty (30) years of the sentence fixed by the
jury so that the aggregate sentence was lawful.
So, a fair question is, "what should the trial court have done?" For starters, at
the time of trial, it should have instructed the jury as to the KRS 532 .010(c) statutory
cap, e with a verdict form that provided :
.,
.g
We, the jury, recommend that the sentences fixed for the
Defendant under Counts 1 and 2 above shall be served
concurrently (at the same time) or consecutively (one to
begin after the completion of the other) in whole or in part,
as follows :
For a total sentence of
years, not to exceed,
however, a total sentence of seventy (70) years.'
Cf. Neace v. Commonwealth , Ky., 978 S.W.2d 319, 321 (1998) ("Nothing in
these provisions prohibits a trial court from disregarding a flawed sentencing
recommendation . RCr 9 .84 and KRS 532 .070 do not control the issue.").
6
See Lawson v. Commonwealth , Ky., 85 S .W .3d 571, 580 n .22 (2002) ; 1
WILLIAM S . COOPER, KENTUCKY INSTRUCTIONS TO JURIES § 12.18 at 131 (4th ed . 1999,
2003 cum . supp .); Id . at § 12 .18A, cmt. at 132 ("It is reasonable for judges and
Having failed to instruct the jury in this manner, the trial court then should have imposed
the fifty (50) year sentences that the jury had fixed for each of the two (2) First-Degree
Robbery Convictions, but ordered thirty (30) years of the second conviction to run
concurrently with (and twenty (20) years of it to run consecutively to) the other fifty (50)
year sentence for a total aggregate sentence of seventy (70) years .8 Having failed to
impose a lawful sentence in this manner in its August 2000 final judgment, the trial
court should have done so when this Court remanded the case for entry of a seventy
(70) year sentence . (In fairness to the trial court, I would observe that Lawson was not
rendered until September 26, 2002, which was almost three (3) weeks after the
amended judgment was entered .)
I concur in the result reached by the majority opinion because, in the grand
scheme of things, seventy (70) years is still seventy (70) years, and judicial economy
militates against another remand for the sole purpose of imposing yet another seventy
(70) year sentence.
Graves, J., joins this concurring opinion .
practitioners to infer that Lawson] represents the settled view of the majority of the
Court.").
8 See KRS 531 .110(1) ("When multiple sentences of imprisonment are imposed
on a defendant for more than one crime . . . the multiple sentences shall run
concurrently or consecutively as the court shall determine at the time of sentence[ .]"
(emphasis added)); Lawson, 85 S.W.3d at 580 n.23 .
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
