Opinion
NO. 2019-CA-000940-MR
05-15-2020
ROBERT ANDERSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Robert Anderson, Pro Se Lexington, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 17-CR-00589 OPINION
AFFIRMING
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BEFORE: COMBS AND JONES, JUDGES; BUCKINGHAM, SPECIAL JUDGE. COMBS, JUDGE: This is a criminal case in which Robert Anderson, pro se, appeals from an order of the Campbell Circuit Court that denied his motion for post-conviction relief. After our review, we affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
On August 3, 2017, while on parole for a criminal conviction in Kenton Circuit Court, Anderson was indicted by the Campbell County Grand Jury as a first-degree, persistent felony offender (PFO) for trafficking in a controlled substance in the first degree. He agreed to plead guilty to first-degree trafficking in exchange for a recommended sentence of ten years to serve, enhanced to twelve-years' imprisonment by virtue of his status as a second-degree persistent felony offender.
On October 11, 2017, the Campbell Circuit Court's judgment of conviction was entered. Anderson was sentenced in accordance with the Commonwealth's recommendation to serve twelve-years' imprisonment. Because Anderson pleaded guilty to a felony committed while he was on parole, the provisions of KRS 533.060(2) prohibit his sentence from running concurrently with any other sentence. Consequently, the Department of Corrections calculated Anderson's sentences to run consecutively.
Kentucky Revised Statutes.
On April 1, 2019, Anderson filed a motion in Campbell Circuit Court to set aside his sentence pursuant to the provisions of CR 60.02. He argued that the sentence imposed by the court in October 2017 was illegal. Once the twelve-year sentence imposed by the Campbell Circuit Court was added to the ten-year term that he was serving for the prior Kenton County convictions, the two sentences exceeded the statutory maximum prison time of twenty years as mandated by the provisions of KRS 532.110(1)(c). Thus, he sought to have the Campbell Circuit Court reduce his sentence by two years.
Kentucky Rules of Civil Procedure.
In its order entered on May 10, 2019, the Campbell Circuit Court denied Anderson's motion. The court analyzed the provisions of KRS 532.110(1)(c) and concluded that its sentence of twelve years' imprisonment did not exceed the statutory maximum. Upon analyzing the provisions of KRS 533.060(2), the court concluded that its sentence could not run concurrently with the earlier sentence imposed by Kenton Circuit Court.
On appeal, Anderson contends that the Campbell Circuit Court erred by failing to grant the relief he sought pursuant to the provisions of CR 60.02. We disagree.
"The standard of review of an appeal involving a CR 60.02 motion is whether the trial court abused its discretion." White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). In order to amount to an abuse of discretion, the trial court's decision must be "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Absent a "flagrant miscarriage of justice," the trial court must be affirmed. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). CR 60.02 is not intended as an additional opportunity to re-litigate the same issues that could have been presented by direct appeal or through RCr 11.42 proceedings. McQueen v. Commonwealth, 948 S.W.2d 415 (Ky. 1997). The purpose of CR 60.02 is to provide relief that is not available by direct appeal or through RCr 11.42 proceedings. Gross, 648 S.W.2d at 857.
Kentucky Rules of Criminal Procedure. --------
Anderson argues that the sentence imposed by the Campbell Circuit Court is illegal because it violates KRS 532.110(1)(c) which provides a twenty-year maximum term of imprisonment. Anderson notes that he had already been sentenced by Kenton Circuit Court to serve ten years' imprisonment, and he acknowledges that the sentences must be served consecutively pursuant to the provisions of KRS 533.060(2). But he reasons and argues persuasively that the Campbell Circuit Court could -- under no circumstance -- sentence him to serve more than ten more years. However, we must disagree with this analysis.
KRS 532.110 provides trial courts with discretion in determining whether defendants convicted of multiple crimes are to serve their sentences concurrently or consecutively. KRS 532.110(2) provides that concurrent sentences are the default alternative absent language to the contrary. However, the discretion of the trial courts to decide whether the sentences for multiple crimes will run consecutively is not unfettered. KRS 532.110(1)(c) mandates a limitation on the aggregate length of sentences to be served consecutively. KRS 532.110(1)(c) provides that "[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." See KRS 532.080(5) ("A person who is found to be a persistent felony offender in the second degree shall be sentenced to an indeterminate term of imprisonment pursuant to the sentencing provisions of KRS 532.060(2) for the next highest degree than the offense for which convicted."); KRS 532.060(2)(b) ("[T]he authorized maximum term[ ] of imprisonment for [a Class B felony is] . . . twenty (20) years.").
The provisions of KRS 532.110(1)(c) are inapplicable to the sentence imposed by the Campbell Circuit Court. Anderson's sentence of twelve years' imprisonment was not the result of an aggregate of consecutive indeterminate terms. It consisted of a single term of ten (10) years, enhanced by his status as a persistent felony offender pursuant to the provisions of KRS 532.080. Moreover, the statutory limitation on the aggregate length of sentences to be served consecutively set forth in KRS 532.110(1)(c) could not apply to prevent the separate sentences imposed by the Kenton and Campbell Circuit Courts from being served consecutively. When read together, the provisions of KRS 532.110 and KRS 532.080 apply only to sentences imposed in the same action for serial separate offenses. See Clay v. Commonwealth, No. 2009-SC-000012-MR, 2010 WL 2471862 (Ky. June 17, 2010), and Noakes v. Commonwealth, No. 2011-CA-000635-MR, 2012 WL 4335931(Ky. App. Sept. 21, 2012). They do not apply to limit sentences imposed in separate proceedings as is the case in the appeal before us.
We AFFIRM the order of the Campbell Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Robert Anderson, Pro Se
Lexington, Kentucky BRIEF FOR APPELLEE: Daniel Cameron
Attorney General Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky