SAMUEL RAY PRATHER V. COMMONWEALTH OF KENTUCKY
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2007-SC-000903-DG
V.
ON REVIEW FROM COURT OF APPEAL'S
CASE NO. 2006-CA-001267-MR
MASON CIRCUIT COURT NO . 01-CR-00106
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCHRODER
REVERSING AND REMANDING
We accepted discretionary review in this case to determine whether a
defendant was entitled to the benefit of the concurrent sentencing statute, KRS
532.110(1)(a), if he pled guilty to misdemeanors and a felony at the same time
and received diversion on the felony conviction, but was subsequently ordered
to serve the sentence on the felony. We hold that the concurrent sentencing
provision was applicable to Appellant's case and thus reverse and remand for
Appellant to be credited for time served on the misdemeanor convictions.
On September 4, 2001, Samuel Prather was indicted on charges of
possession of marijuana, resisting arrest, carrying a concealed weapon, assault
in the third degree (class D felony), and possession of a firearm while
committing a violation of KRS Chapter 218 (class D felony) . The indictment
stated that all five violations occun-ed oit Atagtist 2fi, 2001 . Oti Novembct- 16,
2001, Prather pled guilty to the charges as follows . Pursuant to a plea
agreement, they third-degree assault charge was amended to fourth-degree
assault (misdeinearxor) and lice received - a total sentence of- six months in jail orl
the misdemeanors . As t.o the felony charge of possession of a firearm while
committing a violation of KRS Chapter 218, the motion to enter the guilty plea
and the order on the guilty plea both stated that said conviction was covered by
a separate pre-trial diversion agreement, . Orn the same date the order on the
guilty plea was entered, January 22, 2002, the court. entered its order granting
pretrial diversion on the felony, fixing the period of diversion at five years, with
two years to serve if Prather violated the terms of his diversion.
Prather served his six-month sentence from January 18, 2002 through
July 4, 2002 . On June 26, 2003, the court. entered an order revoking Pra.t.her's
diversion for numerous violations of the terms of his diversion and imposed the
two-year sentence set out in the pre-trial diversion agreement. On that. same
date, the court entered a "JUDGMENT AND SENTENCE ON PLEA OF GUILTY",
which referenced the 2002 guilty plea to possession of a firearm while
.
committing a violation of KRS Chapter 218, the pre-trial diversion agreement,
and the revocation of the pre-trial diversion. In the judgment, the court
sentenced Prather to two years, probated for a period of five years .
On September 21, 2005, the court entered an order setting aside
Prather's probation for multiple probation violations . In that order, Prather
was sentenced to two years' iriiprisoriniejit and wits not credited IOr the tiiile
spent in custody on the misdemeanor convictions . Prather subsequently
moved the court to order that: he be credited for the time served on the
rriisdefneanor convictions. `rhe trial court ( denied the motion, reasoning that
.
the concurrent sentencing statute, KRS 532 .1 10(1)(a), was not applicable
because Prather had not been formally sentenced on the felony until after he
completed serving his sentence on the misdemeanors . The Court. of Appeals
.affirmed, agreeing with the trial court: that "the sentencing provisions afforded
by KRS 532 .110(1)(a) do not apply to Prather" because "[when Prather was
serving his six-month jail term for the misdemeanor convictions, he had not. yet
been convicted of the felony possession of a handgun charge."
Prather argues that pursuant to Thomas v. Commonwealth, 95 S.W. 3d
828, 830 (Ky. 2003), he was convicted of the felony at the same time he was
convicted of the misdemeanors, when the judgment was entered on his guilty
plea on January 22, 2002, and not at. the time he was ordered to serve the twoyear sentence after his diversion and probation were revoked. Thus Prather
maintains that the Court of Appeals erred in ignoring the holding in Thomas .
And because he was convicted of the felony (indeterminate term) and the
misdemeanors (definite term) at the same time, Prather contends that the
mandatory concurrent sentencing provision in KRS 532.1 10(l)(a) would be
applicable . KRS 532 .110(1) (a) provides :
(1) When multiple sentences of imprisonment are
imposed on a defendant for more than one (1) crime,
including a crime for wllicli <a previous sent.eiicc of
probation or eoiidihonal discharge has been revoked,
the multiple sentences shall run concurrently or
consecutively as the court shall det erinine at: the t.iriie
of sentence, except, that :
u(a)
A definite and an indeterrninale terns shall run
concurrently and both sentences shall be satisfied by
service of the indeterminate terns(.]
The question before us is whether the above statute applies to a felony and
misdemeanor sentence, when the defendant. has served out his misdemeanor
sentence before beginning to serve his time on the felony sentence gas a result,
of his diversion being revoked.
As a condition of pretrial diversion, the defendant is required to enter an
Alford plea or a plea of guilty. KRS 533 .250(l)(1) . " If the defendant successfully
completes the provisions of the pretrial diversion agreement, the charges
against the defendant shall be listed as 'dismissed -diverted' and shall not
constitute a criminal conviction ." KRS 533 .258(1). If the defendant fails to
complete the diversion agreement, the diversion agreement can be voided by
the trial court, and the court is to "proceed on the defendant's plea of guilty in
accordance with the law." KRS 533.256(1) . At that point, "[t]he defendant has
the same right to a sentencing hearing as if he or she had pled guilty without
the diversion agreement." Peeler v. Commonwealth, 275 S.W.3d 223, 225
(Ky.App. 2008) .
In Thomas, the appellant pled guilty to a felony and requested
diversion . Before the trial court could rule on the diversion request, the
appellant was arrested for posscssioli of a firearill by a convicted 1Cloll . The
felony element was based on the oflensc~ for which he had just, pled guilty and
requested diversion . The appellant argued that he could not, be charged with
possession of a firearm by a convicted felon beceausc hC_ was not a convicted
felon at the time of that charge, as he was under consideration for diversion on
the underlying felony. Id. at. 828. This Court. held that once the trial court
accepted his guilty plea to the underlying felony, the appellant was a convicted
felon until such time as he completed the diversion program. Id. a t 830 . Thus,
the Court affirmed the conviction for possession of a firearm by a convicted
felon.
In
olding that the Commonwealth must first approve of pretrial
diversion for a defendant, the Court in Flynt v. Commonwealth , 105 S.W.3d
415, 424 (Ky. 2003), characterized pretrial diversion not as "simply a
sentencing alternative," but as an "interruption of prosecution prior to final
disposition" of the case . Citing Thomas , this Court. noted, however, that "some
disqualifications associated with a felony conviction are triggered by the guilty
plea that KRS 533.250(1)(e) requires as a condition of pretrial diversion ." Id. at
423 .
The holding in Thomas , which was not addressed by the Court of
Appeals, refutes the basis of the Court of Appeals ruling in the instant case that Prather was not considered convicted of the felony charge while he was in
the diversion program . The Commonwealth even concedes in its brief that
"once a dclCildant enters a guilty plea and is
a participant in a divcei-sion
program, lie is considered a convicted felon until completion of the diversion
program[,]" and that, the Court of Appeals' conclusion to the contrary was
erroneous . It follows that if the defendant is considered convicted of the
offense once lie enters the guilty plea and has the same right to sentencing if
the diversion is revoked as if he had not, been granted diversion, then the final
sentencing on the felony should be, for concurrent. sentencing purposes, as if
he had been sentenced at the same tinie as the niisdemeanor(s) to which lie
pled guilty . Therefore, it would be immaterial that. the defendant had already
served out his time on the misdemeanor(s) at. the time of final sentencing on
the felony. Hence, we adjudge that the concurrent sentencing provision in KRS
532 .110(1)(a) would be applicable in the instant case .
Citing Myers v. Commonwealth , the Commonwealth argues that wheii
Prather agreed to enter into pretrial diversion, he waived the concurrent
sentencing provisions in KRS 532 .110(1) 10(1)(a) 42 S .W.3d 594, 597 (Ky. 2001)
.
(holding defendant may waive the maximum aggregate sentence limitation in
KRS 532.110(1)(c)) . Assuming that the concurrent sentencing provision of KRS
532.1 10M(a) could be waived by a defendant, any such waiver would have to
be knowing and voluntary. See id . at 598 . Here, there was no mention of
waiver of concurrent sentencing in the plea agreement, guilty plea, plea
colloquy, or pretrial diversion agreement. Accordingly, the Commonwealth's
claim of waiver is without merit.
The Comnlonwealt .h also argues that. even il'Prat llei-'s misdemeanors grid
felony sentences should have run concurrently under KRS 532 .110(1)(a),
Prather was not entitled to credit. for time served on the misdemeanors
pursuant to KRS 532 .120(3)-,- which provides:
Time spent. in custody prior to the commencement of a
sentence as a result of the charge that, culminated in
the sentence shall be credited by the court imposing
sentence toward service of the maximum term of
imprisonment . If the sentence is to an indeterminate
terns of imprisonment, the time spent. in custody prior
to the commencement of the sentence shall be
considered for all purposes as time served in prison.
The above statute is clearly not at issue in the present case because
Prather is not seeking credit for time served on the same offense. And,
contrary to the Commonwealth's position, the statute does not preclude giving
credit for time served for purposes of remedying a sentencing error such as in
the case at hand.
For the reasons stated above, the judgment of the Court of Appeals is
reversed and the case is remanded to the Mason Circuit Court for entry of an
order granting Prather credit on the felony sentence for the time served on the
misdemeanors .
All sitting. All concur.
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