COMMONWEALTH OF KENTUCKY V. RAYCINE LOVEAnnotate this Case
RENDERED : MARCH 24, 2011
TO BE PUBLISHED
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COMMONWEALTH OF KENTUCKY
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2008-CA-001423-MR
McCRACKEN CIRCUIT COURT NO. 04-CR-00109-002
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
I. INTRODUCTION .
Kentucky Revised Statutes (KRS) 533 .040(3) provides, in relevant part,
that a sentence of probation "shall run concurrently with any federal . . .
prison . : . term for another offense to which the defendant . . . becomes subject
during the period, unless the sentence of probation . . . is revoked . The
revocation shall take place . . . within ninety . . . days after the grounds for
revocation come to the attention of the Department of Corrections . . . ." We
granted discretionary review in this case to determine whether KRS 533 .040(3)
means that probation revocation must be completed - or merely initiated =
within that ninety-day window in order for a state court sentence to run
a federal sentence imposed upon a probationer during the
term of the probationer's state court-imposed probation. Consistent with our
earlier precedent, we hold that in these types of cases, the revocation must be
completed within the ninety-day window for the imposition of consecutive
II. FACTUAL AND PROCEDURAL HISTORY.
In August 2004, a Kentucky trial court sentenced Raycine Love to six
and one-half years' imprisonment for drug-related offenses and probated that
sentence for five years . While on probation, Love committed a federal felony
offense; and, in August 2006, the federal court sentenced Love to thirty
months' imprisonment . While Love was serving that sentence in federal
custody in October 2006, Kentucky officials lodged a detainer against Love with
the federal correctional officials based upon Love's state probation violation.
But Love's probation was not actually revoked by the state trial court until
June 2008. Over Love's objection, the state trial court revoked Love's
probation and ordered his Kentucky sentence to be served consecutively to his
federal sentence . A divided panel of the Court of Appeals reversed the
revocation order, holding that Love's probation was not timely revoked under
KRS 533 .040(3) . The Court of Appeals reasoned that Love's sentence on
revocation had to be served concurrently with his federal sentence .
We granted discretionary review in order to examine whether the mere
initiation of revocation proceedings during the statutorily mandated ninety-day
window is sufficient for imposition of consecutive sentencing - as the trial
court ruled - or whether the Kentucky revocation proceedings must be fully
completed within the statutory ninety-day window for consecutive sentencing .
to be permissible - as the Court of Appeals held. We hold that the plain
language of KRS 533 .040(3) requires revocation proceedings to be completed
within the ninety-day time limit -- not merely initiated - before a revoked
Kentucky sentence may be ordered to be served consecutively with a federal
sentence. Since the Court of Appeals came to a similar conclusion, we affirm.
III . ANALYSIS.
As an initial matter, we note that the facts and procedural history of this
case are each largely uncontested . Our task, therefore, is properly to interpret
the relevant statutes . Because statutory .interpretation is a question of law,
our review is de novo; and the conclusions reached by the lower courts are
entitled to no deference .' And we must also interpret statutes in accordance
with their plain meanings,2 generally construing non-technical words according
to their common meanings .3
See, e.g., Commonwealth v. McBride, 281 S.W.3d 799, 803 (Ky. 2009) ("The
construction and application of statutes is a matter of law. Therefore, this Court
reviews statutes [de novo] without deference to the interpretations adopted by
lower courts.") .
Id. ("A basic rule in statutory interpretation is that the `plain meaning' of the
statute controls .") .
KRS 446 .080(4) ("All words and phrases shall be construed according to the
common and approved usage of language, but technical words and phrases, and
such others as may have acquired a peculiar and appropriate meaning in the law,
shall be construed according to such meaning.") .
The plain language of KRS 533 .040(3) does not support the
Commonwealth's contention that merely initiating revocation proceedings is a
sufficient basis for consecutive sentencing under these facts . As pertinent to
this case, that statutory subsection provides that Love's Kentucky probation
would run concurrently with his federal sentence unless his Kentucky
probation was timely revoked. So the only way Love's Kentucky sentence could
be ordered to run consecutively to his federal sentence would be if the
Kentucky sentence was timely revoked, i.e., within ninety days after the
Department of Corrections learned of the grounds for revocation.
It is beyond dispute that the mere lodging of the detainer with the federal
authorities was insufficient to revoke Love's probation .4 To be precise, the
lodging of the detainer was the first step in the revocation process . 5 The
Commonwealth errs when it contends that its mere lodging of a detainer
satisfied the statutory requirement in KRS 533 .040(3) that the "revocation shall
take place . . . within ninety days after the grounds for revocation [came] to the
attention of the Department of Corrections . . . ." For the Commonwealth's
At oral argument, Love disputed whether the Commonwealth filed its detainer
within ninety days of learning of the grounds for revocation . The precise date upon
which the Department of Corrections learned of the grounds for revocation of
Love's probation is irrelevant for purposes of this appeal, however . The
Commonwealth had knowledge of the cause for revocation by at least the date the
detainer was lodged against Love ; yet, Love's probation was not revoked until
approximately twenty-months later. So KRS 533.040(3)'s ninety-day window for
revocation was not met regardless of the precise date upon which the
Commonwealth learned of the cause for revocation of Love's probation .
See, e.g., KRS 533.050(2) ("The court may not revoke or modify the conditions of a
sentence of probation or conditional discharge except after a hearing with
defendant represented by counsel and following a written notice of the grounds for
revocation or modification .") .
position to be correct, we would have to graft language onto the statute so that
it would provide that "initiation of the revocation proceedings shall take place . .
. within ninety days . . . ." And we may not add language to a statute.6 So the
plain language of KRS 533.040(3) compels a conclusion that in these types of
cases, the revocation process must be completed within the ninety-day window
for consecutive sentencing to be authorized .
In short, because the revocation did not take place within ninety days
after the Department of Corrections received notice of the grounds for
revocation of Love's Kentucky sentence, the trial court lacked the authority to
order Love's Kentucky sentence on revocation to run consecutively to his
federal sentence .
Our conclusion in this case simply reaffirms our decision in Gavel v.
Commonwealth,? a case directly on point. In Gavel, the state court probated a
defendant's sentence; and a federal court later convicted the defendant of a
federal offense, at which point the state court revoked the defendant's
probation and ordered the state sentence to be served consecutively to the
federal sentence, believing that consecutive sentencing was mandated by
KRS 533 .060(2) .8 KRS 533 .060(2) provided that when a defendant "has been
convicted of a felony and is committed to a correctional facility . . . and . . . has
been released by the court on probation, . . . and is convicted . . . [ofl a felony
See, e.g., Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008) ("We must
interpret statutes as written, without adding any language to the statute . . . .") .
674 S .W .2d 953 (Ky. 1984) .
Id. at 953 .
committed while on . . . probation . . . . the period of confinement for that felony
shall not run concurrently with any other sentence."9
We held that KRS 533 .060 was inapplicable because "[t]he conviction
[that felony] referred to in that section is the subsequent one, not the first . . . .
In the present case, `that' felony would be the federal conviction, which the
state court has no control over ." 10 In other words, KRS 533.060 does not apply
a Kentucky defendant's probation
is revoked because of a later federal
offense because a Kentucky court cannot require a federal court to run a later
federal sentence consecutively to an existing Kentucky sentence. Instead, in
those situations, like the case at hand, the applicable statute is
KRS 533.040(3), which specifically applies to federal offenses to which a
Kentucky probationer becomes subject during the probationary period . 11
Id. at 953-54 . Although KRS 533 .060(2) has been amended since we decided
Gavel, those amendments have been minor . See KRS 533 .060(2) (current version)
("When a person has been convicted of a felony and is committed to a correctional
detention facility and released on parole or has been released by the court on
probation, shock probation, or conditional discharge, and is convicted or enters a
plea of guilty to a felony committed while on parole, probation, shock probation, or
conditional discharge, the person shall not be eligible for probation, shock
probation, or conditional discharge and the period of confinement for that felony
shall not run concurrently with any other sentence .") .
674 S .W.2d at 954 .
When a Kentucky state court probationer incurs a new Kentucky state court felony
sentence while on probation, parole, shock probation or conditional discharge from
a Kentucky state court, the ninety-day window of KRS 533 .040(3) does not apply .
Instead, in those situations, KRS 533.060, which mandates consecutive sentencing
for felonies committed while on probation,, applies. See Brewer v. Commonwealth,
922 S .W.2d 380 (Ky. 1996) . As we specifically noted in Brewer, however, Gavel
controls in revocation proceedings when a state probationer incurs a federal
sentence while on Kentucky state probation . Id. at 382. Since the General.
Assembly has not seen fit to materially change the relevant portions of
KRS 533 .040 or KRS 533 .060 and since KRS 533 .040(3) specifically applies to
revocation based upon incurrence of a subsequent federal sentence, we reiterate
Although our opinion in Gavel is terse, it does establish two points
relevant to the present case . First, we made clear in Gavel that
KRS 533 .060(2)'s consecutive sentencing provision for offenses committed
while on probation is inapplicable when a person on state probation incurs a
federal sentence during the state probationary period . The Court of Appeals
dissent in this case and the Commonwealth take issue with Gavel's holding.
The Commonwealth contends that Gavel, although "technically correct[,]"
nevertheless, "undermines the intention of the legislature in enacting
KRS 533 .060 . . . ." But the Commonwealth's argument that Gavel thwarts the
General Assembly's intent to deal harshly with those whose probation is
revoked is undermined by the fact that the General Assembly has not seen fit
to make substantive changes to either KRS 533 .040(3) or to KRS 533 .060 since
we rendered Gavel. So we presume that the General Assembly agrees with our
decision in Gavel. 12 Likewise, we remain convinced that Gavel is a correct
construction of "the relevant law for cases like the one at hand.
Second, we established in Gavel that KRS 533.040(3)'s provision whereby
a state court can order a sentence to be served consecutively to a federal
sentence upon revocation of state court probation only applies if "the order of
probation revoked was within 90 days after the grounds for revocation came to
that our holding in Gavel applies to situations like the one at hand involving the
proper interplay between state and federal sentences.
Rye v. Weasel, 934 S .W.2d 257, 262 (Ky . 1996) ("There is a strong implication that
the legislature agrees with a prior court interpretation of its statute when it does
not amend the statute interpreted.") .
the attention of the Bureau of Corrections . . . ." 13 As stated previously, this
holding comports with the plain language of KRS 533 .040(3), which requires
the revocation process, to be completed within the aforementioned ninety-day
Because the order revoking Love's probation in the case at hand was not
issued within ninety days after the Department of Corrections learned of the
possible grounds for revocation of Love's probation, the trial court was without
statutory authority to order Love's Kentucky sentence to be served
consecutively to his federal sentence. 14
We are not holding that the revocation in these types of cases must occur
within the ninety-day window or be forever barred . A probated sentence may
be revoked "at any time prior to the expiration or termination of the period of
probation ." 15 Instead, the only question properly before us is whether an
otherwise properly revoked sentence may be ordered to be served consecutively
to a federal sentence if the revocation occurs more than ninety-days after the
cause for revocation comes to the attention of the relevant officials for the
Commonwealth . The ninety-day clock in KRS 533 .040(3) for application of
consecutive sentencing in these Kentucky state/federal offense cases begins to
run when the cause for revocation comes to the attention of the Department of
674 S .W.2d at 954.
Accord Sutherland v. Commonwealth, 910 S.W.2d 235, 237 (Ky. 1995)
("Nonetheless, it is the Legislature which provided the 90-day time limitation within
KRS 533 .040(3) . The statute provides that any revocation of probation (which
occurs outside of the 90-day period) is to be run concurrently with any other
KRS 533 .020( 1) .
Corrections . In the case at hand, since the Commonwealth had notice of
grounds for revocation no later than the date the detainer was lodged against
Love, the ninety-day clock began running no later than the time at which the
detainer was lodged (by which point Love's federal conviction and sentencing
had both occurred) . Since the revocation occurred much more than ninety
days after the detainer was lodged, Love's sentence on revocation could not be
ordered to be served consecutively to his federal sentence .
We also take this opportunity to clear up any confusion caused by
imprecise language in our opinion in Sutherland. In that case, we held that the
General Assembly's intent in enacting KRS 533 .040(3) appeared to be "to
require the Department of Corrections to push for revocation proceedings in a
speedy manner, if any subsequent term of sentence is to be served consecutive
to any time spent in incarceration as a result of a revocation of probation ." 16
At first blush, our regrettable use of the phrase "push for revocation
proceedings in a speedy manner" seems only to require the Department of
Corrections to initiate the revocation process in a timely manner for
consecutive sentencing to be permissible under KRS 533 .040(3) . In fact, the
Commonwealth relies upon that construction of the phrase to support its
arguments . Although our language was imprecise, we did not intend in
Sutherland to overrule Gavel or otherwise to hold that the mere timely initiation
of revocation proceedings was sufficient to satisfy the ninety-day deadline of
KRS 533 .040(3) . Instead, we only meant that the Department of Corrections
910 S.W. 2d at 237.
must take whatever actions are necessary and within its powers to complete
revocation proceedings within the ninety-day window for consecutive
sentencing to be permissible in cases governed by KRS 533.040(3) .
We understand fully the Commonwealth's argument that it is a practical
impossibility to achieve probation revocation of an individual held in federal
custody within ninety days . Although the. Commonwealth's argument is not
buttressed by supporting materials found in the record of this case, common
sense and our experience cause us to accept the premise that it is exceedingly
difficult to revoke the Kentucky-state-court-imposed probation of someone in
the custody of the federal correctional authorities within the narrow ninety-day
window contained in KRS 533 .040(3) . But the wisdom or expediency of the
restrictive ninety-day window is a public policy choice made by the General
Assembly . 17 We may only interpret KRS 533 .040(3), but we may not re-write it .
As we have stated before, if KRS 533 .040(3)'s ninety-day "time frame is deemed
to be too short, it is up to the General Assembly to make a change ."is
IV . CONCLUSION.
For the foregoing reasons, the decision of the Court of Appeals is
affirmed ; and this matter is remanded to the trial court for further proceedings
consistent with this opinion.
Cf. Board of Trustees, Newport Public Library v. City of Newport, 300 Ky. 125,
187 S .W.2d 806, 812 (1945) ("But we have no power to question the propriety,
wisdom, or expediency of legislation . Any unjust provision of the act can be
remedied only by the General Assembly.") .
Sutherland, 910 S.W.2d at 237.
All sitting. Abramson, Noble, Schroder, and Venters, JJ ., concur. Scott,
J., dissents by separate opinion in which Cunningham, J ., joins.
SCOTT, J., DISSENTING : I respectfully dissent from the majority's
decision --- holding that KRS 533 .040(3) requires the completion of probation
revocation proceedings within ninety days - because it effectively eliminates
the Commonwealth's ability to revoke the. probation of a federally incarcerated
probationer. And this absurd result belies any legislative intent to mandate a
complete revocation within the ninety-day period. See Hall v. Hospitality
Resources, Inc., 276 S .W.3d 775, 785 (Ky. 2008) (stating that "[w]e have often
said that statutes will not be given [such a] reading where to do so would lead
to an absurd or unreasonable conclusion .") (internal citations omitted) .
The majority implicitly concedes this point, acknowledging that common
sense guides them to accept the premise that it is now "exceedingly difficult to
revoke the Kentucky-state-court-imposed probation of someone in custody of
the federal correctional authorities within the narrow ninety-day window
contained in KRS 533 .040(3) ." Slip op . at 10 . Consequently, probationers who
have the serendipitous fortune of feloniously violating federal law will rarely
serve their state-court sentence consecutively.
When undertaking statutory interpretation, we must "refrain from
interpreting a statute so as to produce an absurd or unreasonable result."
Wilburn v. Commonwealth, 312 S .W.3d 321, 328 (Ky. 2010) . However, the
majority's statutory interpretation admittedly implements a framework so
restrictive it has no practical application, i. e., an "absurd or unreasonable
Under such interpretation, if the Commonwealth seeks to revoke statecourt-ordered probation and reinstate the state sentence to run consecutively
to the federal sentence, it must complete a myriad of proceedings within the
"narrow ninety-day window ." Slip op . at 10 . The Commonwealth must notify
the probationer, secure permission from the United States Department of
Justice (DOJ), arrange transportation to and from the revocation hearing,
participate in a statutorily-mandated hearing, and await a decision. Not only is
this temporally impracticable, but it also presumes cooperation from the DOJ .
Despite the Commonwealth's best compliance efforts, the DOJ possesses
absolute authority to deny the temporary release of its prisoner for revocation
proceedings, thereby eliminating the Commonwealth's ability to revoke
probation . This is surely not what the Legislature intended when it penned
KRS 533 .040(3) .
Careful examination of KRS 533 .040's Official Commentary belies the
restrictive framework consequent from the majority's statutory interpretation .
The Official Commentary states that subsection three is a notice provision,
designed to prevent unfair surprises, which impede the rehabilitative function
of incarceration. This subsection was designed to prevent the authorities from
"wait[ing] until the defendant has served his prison sentence for the
subsequent offense and then seek revocation of his prior sentence of probation
or conditional discharge and reinstate his prior sentence of imprisonment ."
The Official Commentary continues, stating that the purpose KRS 533 .040(3) is
to "prohibit such a practice unless the authorities act to revoke the prior
sentence of probation or conditional discharge before the defendant has
completed his imprisonment under the subsequent sentence ." (emphasis
As evinced by the Official Commentary, the legislative intent was to
require notice of probation revocation prior to the prisoner completing the
unrelated federal sentence . In this case, the probationer, Raycine Love, was
served with a detainer action letter for his "probation violation," notifying him
that the Commonwealth was attempting to revoke his probation . Thus, here
"the authorities actjed] to revoke . . . .before the defendant completed his
imprisonment under the subsequent sentence ." Commentary to KRS 533 .040
(emphasis added) . As a result, Love could not reasonably expect his
unrestricted freedom upon completion of his federal sentence.
With the current state of our prison system and the widespread effort to
reduce that population by increasingly utilizing probation, it is integral that our
prosecutors retain revocation ability when probationers subsequently violate
federal law. Despite this, the majority now imposes a framework so
procedurally restrictive that revocation, in this context, is now "exceedingly
difficult." Slip op . at 10. As we have keenly stated in the past, "[w]hen all else
is said and done, common sense must not be a stranger in the house of the
law." Cantrell v. Kentucky Unemployment Ins. Commission, 450 S .W.2d 235,
237 (Ky . 1970) . The majority's opinion ignores this conventional wisdom ; thus,
I respectfully dissent.
Cunningham, J . , joins.
COUNSEL FOR APPELLANT:
Attorney General of Kentuc
Joshua D. Farley
Assistant Attorney General
Attorney General's Office
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601