Opinion
NO. 2012-CA-000640-MR NO. 2012-CA-000641-MR NO. 2012-CA-000642-MR
06-07-2013
RACHEL BLACKBURN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: R. Christian Garrison Assistant Public Advocate LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LAWRENCE CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NOS. 09-CR-00026, 09-CR-00027 & 09-CR-00028
OPINION
AFFIRMING
BEFORE: DIXON, MOORE AND TAYLOR, JUDGES. DIXON, JUDGE: Appellant, Rachel Blackburn, appeals from an order of the Lawrence Circuit Court requiring her aggregated six-year sentence in three 2009 cases to run consecutively to a prior twenty-year sentence imposed for two 2007 convictions. Finding no error, we affirm.
In August 2007, Appellant was indicted in the Lawrence Circuit Court on two counts of first-degree trafficking in a controlled substance and for being a persistent felony offender. At the time of the offenses, Appellant was on parole from a previous felony conviction. Following a trial in November 2008, a jury found her guilty on all charges. She was subsequently sentenced to twenty years on each trafficking count, to run consecutively for a total of forty years' imprisonment. On appeal, however, the Kentucky Supreme Court held that Appellant was incorrectly sentenced. Blackburn v. Commonwealth, 2010-SC-000537 (Dec. 22, 2011). Specifically, the Court determined that although Appellant was on parole at the time of the offenses, Kentucky Revised Statutes (KRS) 533.060(2) did not modify KRS 533.110(1) so as to permit subsequent sentences that are ordered to run consecutively to exceed the maximum aggregate duration allowed under KRS 533.110(1)(c). Accordingly, because the maximum sentence authorized for an enhanced Class C felony was twenty years, the aggregate of Appellant's sentences for the 2007 offenses could not exceed that cap. Appellant was thereafter sentenced to a total of twenty years' imprisonment.
The Kentucky Supreme Court's website indicates that the opinion became final on January 12, 2012. However, as Westlaw still denotes the opinion as not final, there is no Southwest Reporter citation available.
In February 2009, prior to the rendition of the Supreme Court's opinion, Appellant was again charged in three separate indictments for first-degree trafficking in a controlled substance, the offenses having been committed on October 16, 18, and 20, 2008, prior to her trial on the 2007 charges. She was also charged with being a persistent felony offender in all three cases. On April 27, 2009, Appellant pled guilty to all charges. Pursuant to the plea agreement, the sentences in the 2009 cases were aggregated and Appellant was initially sentenced to forty years' imprisonment. However, following the Supreme Court's opinion in the 2007 cases, the parties agreed to vacate the sentence, but not the guilty plea, in the 2009 cases. As a result of a new agreement, Appellant received an enhanced sentence of six years' imprisonment on each of the three trafficking charges to run concurrently with each other. Per the agreement, however, the Commonwealth took no position on whether the aggregated six-year sentence should run consecutively to or concurrently with Appellant's prior twenty-year sentence from the 2007 convictions.
09-CR-26, 09-CR-27, and 09-CR-28.
On March 29, 2102, the trial court entered a detailed order ruling that because Appellant was awaiting trial on the 2007 offenses at the time she committed the 2008 offenses, KRS 533.060(3) required the six-year sentence to run consecutively to her prior twenty-year sentence. The trial court imposed sentence accordingly and Appellant thereafter appealed to this Court as a matter of right.
In this Court, Appellant argues that the trial court erroneously ordered her six-year sentence for the 2009 convictions to run consecutively to her prior twenty-year sentence. First, Appellant contends that the trial court misapplied KRS 533.060(3) because there is no evidence in the record as to the dates of the 2008 offenses. Second, Appellant believes that the trial court misinterpreted the statute's affect on the provisions of KRS 531.110(1)(c).
Admittedly, we find Appellant's first argument concerning the application of KRS 533.060(3) to her 2009 convictions to be not only perplexing, but wholly without merit. KRS 533.060 provides, in pertinent part:
(3) When a person commits an offense while awaiting trial for another offense, and is subsequently convicted or enters a plea of guilty to the offense committed while awaiting trial, the sentence imposed for the offense committed while awaiting trial shall not run concurrently with confinement for the offense for which the person is awaiting trial.The record herein reveals that the indictment in each of the three 2009 cases delineated the date of each offense, namely October 16, 18, and 20, 2008. Moreover, during the plea colloquy, Appellant unequivocally admitted to having committed the offense of trafficking on each of those dates. Clearly, as the instant offenses were committed in October 2008, and Appellant was tried on the 2007 offenses on November 3, 2008, she "committed an offense while awaiting trial for another offense . . ." as provided in KRS 533.060(3). As such, the trial court did not err in finding that the statute was applicable herein.
Next, Appellant contends that KRS 532.110(1)(c) applies to the present case and makes her twenty-six-year sentence illegal. KRS 532.110(1)(c) provides:
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 theAppellant argues that the trial court violated the limitation set forth in the above statute by ruling that KRS 533.060(3) requires her 2009 sentence to run consecutively to the 2007 sentence. We must disagree.
court shall determine at the time of sentence, except 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. In no event shall the aggregate of consecutive indeterminate terms exceed seventy (70) years;. . . .
In analyzing this issue, it is significant to point out that there are essentially two types of sentence aggregation. The first occurs when a new sentence is run consecutively to a previously entered sentence, whereas the second occurs when counts or offenses within a new sentence run consecutively to each other. In Devore v. Commonwealth, 662 S.W.2d 829 (Ky. 1984), the Kentucky Supreme Court interpreted KRS 533.060(2) as requiring both types of aggregation when a defendant commits new felonies while on probation or parole. In other words, under Devore, not only did sentences for the new felonies have to run consecutively to each other but also consecutively to any other prior sentences. Subsequently, in Peyton v. Commonwealth, 253 S.W.3d 504 (Ky. 2008), the Court revisited the issue and overruled Devore to the extent that "it require[d] all subsequent sentences for crimes committed while on probation or parole to be run consecutively to each other." The Court stated:
KRS 533.060(2) provides:
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.
[W]e now hold that the logic espoused by Justice Leibson in his dissent [in Devore] provides an inherently more practical understanding of the statute. "A reasonable interpretation of the phrase 'with any other sentence,' (KRS 533.060(2)) is that 'any other sentence' means only the unserved portion of the sentence for the felony for which probation or parole should be revoked." Devore, 662 S.W.2d at 831 (Leibson, J., dissenting). This viewpoint interprets the language, "shall not run concurrently with any other sentence," in KRS 533.060(2) as meaning any other sentence previously imposed.Peyton, 253 S.W.3d at 510-11. Thus, the Peyton Court interpreted KRS 533.060(2) to mean that felonies committed while on probation or parole shall run consecutively to the felony sentence for which the defendant was on probation or parole, but the decision whether to run the new sentences consecutively or concurrently to each other was within the trial court's discretion. Peyton, however, did not address the effect of KRS 533.060(2) on KRS 532.110(1)(c) because the punishment therein did not exceed the maximum permissible under the statute.
Thus, it becomes quite clear in the context of KRS 533.060(2), that the language, "the period of confinement for that felony shall not run concurrently with any other sentence," should be construed as meaning that subsequent felony offense(s) committed while on probation or parole may not be run concurrently with the sentence for which the individual is on probation or parole. In the instance of multiple-count subsequent felony offenses committed while on probation or parole, however, these subsequent offenses may be run either consecutively or concurrently, at the court's discretion. This connotation is the only rational and practical manner in which the statute can be reasonably applied.
In the appellate decision from Appellant's 2007 convictions, Blackburn v. Commonwealth, our Supreme Court specifically discussed the interplay between KRS 533.060(2) and KRS 532.110(1). The Court held that when new offenses are committed while the defendant is on probation or parole, KRS 533.060(2) does not modify KRS 532.110(1)(c) so as to allow the new sentences to be aggregated with each other to result in a total sentence in excess of the 20-year cap. (Slip op. pg 10). Thus, while the Court affirmed the trial court's discretion with respect to new sentences as established in Peyton, such discretion is limited by the provisions of KRS 532.110(1)(c). Significantly, however, the Blackburn Court did not extend the limitation in KRS 532.110(1)(c) to the sum of the new sentences aggregated with a previously existing sentence and, in fact, specifically held, "[W]e again reiterate 'that the court may not run these subsequent convictions concurrent with the paroled offense.' Peyton, 253 S.W.3d at 511 (citing 533.060(2))." Blackburn (Slip op. p. 12).
As the trial court noted, the specific holding of Blackburn does not apply to the instant facts since it concerned KRS 533.060(2), which governs subsequent offenses committed while on probation or parole. Rather, the issue herein requires an analysis of the interplay between KRS 533.060(3) and KRS 532.110(1)(c) since Appellant's subsequent offenses were committed while she was awaiting trial on the prior offenses. Nevertheless, the trial court found, and we agree, that the reasoning of Blackburn is equally applicable herein.
The counterpart to KRS 533.060(2)'s "any other sentence" phrase found in KRS 533.060(3) reads, "shall not run concurrently with confinement for the offense for which the person is awaiting trial." As the trial court pointed out, the language "with any other sentence" does not appear in subsection (3) for the simple and obvious reason that if the defendant is awaiting trial on the prior charges, there is no "any other sentence." Nevertheless, we are of the opinion that both subsection (2) and subsection (3) indicate the legislature's clear intent that those who commit additional offenses either while awaiting trial or on probation or parole are subject to stricter penalties. To treat subsequent felonies committed under subsection (3) differently from those committed under subsection (2) would lead to an absurd result. If the maximum aggregate sentence of all crimes, those for which a defendant is awaiting trial and those committed while awaiting trial, cannot exceed twenty years, the defendant would essentially be given a "free pass" for any crimes committed while awaiting trial on a previous crime. Certainly such was not the intent of the legislature.
Furthermore, the general rule of construction is that courts attempt to harmonize the interpretation of conflicting statutes or sections thereof so as to give effect to both. When there is a conflict, the later enacted generally controls. Williams v. Commonwealth, 829 S.W.2d 942, 944 (Ky. 1992). Similarly, when two statutes are in apparent conflict and the inconsistencies cannot be reconciled, the one containing express and positive language relating to a particular subject should take precedence over the more general provision. Preston v. Floyd/Johnson County Pilots Assoc., 867 S.W.2d 474, 475 (Ky. App. 1993). The General Assembly enacted KRS 532.110(1)(c) in 1974, and subsequently enacted KRS 533.060(2) and (3) in 1976. Thus, not only was KRS 533.060 enacted later in time, it is undoubtedly more specific than KRS 532.110(1)(c).
We are of the opinion that the rationale espoused by our Supreme Court in Blackburn is equally applicable herein and leads to the conclusion that while a trial court has discretion to order sentences for felonies committed while a defendant is awaiting trial on other charges to run consecutively or concurrently to each other within the limitations of KRS 532.110(1)(c), KRS 533.060(3) mandates that those sentences run consecutively to the sentence imposed for the prior offense(s) "for which the person is awaiting trial." Such an interpretation harmonizes the language of KRS 532.110(1)(c) and KRS 533.060(3) and is in accordance with the prior precedent set by the Kentucky Supreme Court.
For the reasons set forth herein, the order of the Lawrence Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: R. Christian Garrison
Assistant Public Advocate
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky