Opinion
NO. 2012-CA-001104-MR
06-06-2014
BILLY R. BOWMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Rachel G. Cohen Assistant Public Advocate La Grange, Kentucky ORAL ARGUMENT FOR APPELLANT: R. Christian Garrison Assistant Public Advocate La Grange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Heather M. Fryman Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: Heather M. Fryman Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 03-CR-00072
OPINION
AFFIRMING
BEFORE: LAMBERT, MOORE, AND VANMETER, JUDGES. MOORE, JUDGE: Billy R. Bowman appeals the Calloway Circuit Court's order denying his motion for relief from his conditional discharge. After a careful review of the record, oral arguments and supplemental briefing, we affirm.
This case has a long and convoluted history, which we set forth to put the disposition of this appeal in context. Bowman was indicted on charges of first- degree rape and of being a first-degree persistent felony offender (PFO-1st). He subsequently moved to enter a guilty plea pursuant to the Commonwealth's offer on a plea of guilty, which provided that the charges against Bowman would be amended to second-degree rape and PFO-2nd, if he pleaded guilty. The court accepted Bowman's guilty plea to the amended charges.
Prior to sentencing, Bowman moved to withdraw his guilty plea based upon newly discovered evidence that he did not have at the time he pleaded guilty, i.e., two witnesses had come forward stating that they had spoken with the female victim the morning after the incident occurred, and the victim told them that she was fifteen years old, but that she had told Bowman that she was seventeen.
The victim was actually twelve years old.
The circuit court denied Bowman's motion to withdraw his guilty plea. The court then entered its judgment against Bowman, finding him guilty of the amended charges of second-degree rape and PFO-2nd. Bowman was sentenced to serve twenty years of imprisonment, and three years of conditional discharge upon his release from incarceration.
Bowman appealed, and the Kentucky Supreme Court affirmed the circuit court's judgment. See Bowman v. Commonwealth, No. 2005-SC-000234-TG, 2006 WL 141586, *1 (Ky. Jan. 19, 2006) (unpublished).
Bowman then filed his RCr 11.42 motion to vacate, set aside, or correct his sentence. The circuit court denied his motion without holding an evidentiary hearing. Bowman appealed, and this Court affirmed the circuit court's decision. See Bowman v. Commonwealth, No. 2007-CA-000993-MR, 2008 WL 4998473, *1 (Ky. App. Nov. 26, 2008) (unpublished). The Kentucky Supreme Court subsequently granted discretionary review and remanded the case "for an opinion consistent with Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)." See Bowman v. Commonwealth, No. 2008-SC-000945-DG (Ky. Oct. 21, 2009) (unpublished). On remand to this Court, the circuit court's decision was vacated, and the case was remanded for further consideration. See Bowman v. Commonwealth, No. 2007-CA-000993-MR, 2010 WL 1814811, *1 (Ky. App. May 7, 2010) (unpublished).
Kentucky Rule of Criminal Procedure.
Thereafter, the circuit court entered an agreed order on June 21, 2011, denying Bowman's RCr 11.42 motion but amending the judgment pursuant to CR 60.02(e). Specifically, the judgment and sentence were amended so that Bowman was now convicted of third-degree rape pursuant to KRS 510.060(1)(b) and sentenced to five years of imprisonment. The last sentence of the order states that "The disposition of the Defendant is left to the sound judgment of the Department of Corrections." This amended judgment did not include a specific reference to KRS 532.043, which provides that:
Kentucky Rule of Civil Procedure.
Kentucky Revised Statute.
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(1) In addition to the penalties authorized by law, any person convicted of, pleading guilty to, or entering an Alford plea to a felony offense under [KRS] Chapter 510 . . . shall be subject to a period of conditional discharge following release from:(Emphasis added).
(a) Incarceration upon expiration of sentence; or(2) The period of conditional discharge shall be three
(b) Completion of parole.
(3) years.
By the time the June 20, 2011 order was entered, Bowman maintains that he had served more than seven years with an additional 154 days of pre-conviction credit. The record supports this. On June 24, 2011, Bowman received a Notice of Discharge from the Kentucky Department of Corrections, stating that his maximum expiration date for his five-year sentence was May 6, 2009. Nonetheless at the time when Bowman's offense was committed in 2003, the mandatory sex offender conditional discharge period was three years, pursuant to KRS 532.043. Consequently, Bowman was placed on Post Incarceration Supervision/Sex Offender Conditioned Discharge by the Kentucky Parole Board, to be supervised for a period of three years, set to expire on June 24, 2014. Despite receiving this notice, Bowman did not move the court to amend its judgment yet again to clarify whether he was subject to the three-year period of conditional release pursuant to KRS 532.043 although the Department of Corrections had notified him that the expiration date of his sentence was May 6, 2009.
Within a year of his supervised release, Bowman was accused of violating the terms of his release. He received a notice from the Department of Corrections, Division of Probation and Parole, of a preliminary hearing dated May 4, 2012, for violating the terms of his conditional discharge for failure to attend sex offender treatment classes in April of 2012; for testing positive for marijuana use on May 3, 2012; and for admitting to marijuana use on April 20, 2012. On May 15, 2012, an ALJ for the Parole Board held a preliminary hearing regarding the revocation action. Bowman was represented by counsel. The ALJ ordered that the case be referred to the Parole Board for a final revocation hearing. The Parole Board thereafter found that Bowman had violated the terms of his conditional release; consequently, the Board determined that Bowman had to serve out the completion of his term of conditional release, which was set to expire on June 24, 2014.
While the Department of Corrections' administrative proceedings were taking place, Bowman filed a motion with the Calloway Circuit Court on April 10, 2012, for relief from his conditional discharge. In that motion, he asserted that he should be relieved from his three-year conditional discharge effective May 6, 2012, given that the Department of Corrections had notified him that the expiration date of his amended sentence was May 6, 2009.
The circuit court denied Bowman's motion for relief from his conditional discharge on May 18, 2012. In denying Bowman's motion, the circuit court ordered that Bowman
was not released from incarceration until June 24, 2011. Therefore, according to [KRS] 532.043(1)(a), his three (3) year conditional discharge period does not begin until
that date. If the statute had read that any person convicted shall be subject to a period of conditional discharge upon expiration of a sentence, the Court would be more inclined to agree with Defendant. However, the statute is not written in that way. Moreover, the Court agrees with the Commonwealth in that it is counter intuitive for Defendant to have served any period of his conditional discharge while in custody for the crime.
Bowman also sought relief from his period of conditional discharge via a writ of habeas corpus filed with the Calloway Circuit Court on June 1, 2012, on essentially the same foundation as his motion for relief from conditional discharge. The circuit court denied the writ on June 20, 2012. Bowman timely appealed the denial of the writ to this Court (No. 2012-CA-001125). This Court affirmed the circuit court on March 20, 2013, and the Kentucky Supreme Court denied discretionary review on August 21, 2013.
Bowman also timely appealed the circuit court's order denying his motion for relief from conditional discharge. That is the matter presently before this Court on the merits.
Oral arguments were held in this case, during which, questions arose from the Court whether the judicial branch had jurisdiction over this matter pursuant to Jones v. Commonwealth, 319 S.W.3d 295 (Ky. 2010). Additionally, because the Parole Board's administrative actions were not part of the Calloway Circuit Court record, the panel could not fully review this matter in context. Bowman and the Commonwealth were ordered to file supplemental briefs and to supplement the record with all proceedings and orders regarding the revocation of Bowman's conditional discharge.
We begin our analysis with Bowman's original assertion before the Court that his release from his conditional discharge should have been May 6, 2012. This claim requires us to engage in a statutory construction analysis of KRS 532.043. We review the circuit court's construction of a statute de novo. See Commonwealth v. Chestnut, 250 S.W.3d 655, 659 (Ky. 2008).
Bowman's conviction was ultimately to the amended charge of third-degree rape, pursuant to KRS 510.060(1)(b). Thus, KRS 532.043 was applicable to his case. According to KRS 532.043, Bowman was subject to a three-year period of conditional discharge following his release from incarceration upon expiration of his sentence. However, when the judgment against him was amended to a lesser charge, Bowman had already served well beyond the five-year maximum period of incarceration set for his amended charge. See KRS 510.060(2); KRS 532.060(2)(d). Regardless, Bowman knew, or should have known, at the time he agreed to have the charge against him amended down to third-degree rape that he had already served the maximum five years of imprisonment, and he was going to be subject to a period of conditional discharge upon his release from incarceration, not from the expiration of his maximum sentence.
Herein, the court amended its judgment while Bowman was already serving his sentence for his original conviction. Regardless, KRS 532.043 states that upon release from incarceration, "[t]he period of conditional discharge shall be three (3) years" upon release from "[i]ncarceration upon expiration of sentence." (Emphasis added). The statute gives no leeway for other interpretations. Pursuant to the version of KRS 532.043 that is applicable to this case, we agree with the trial court that the period of conditional discharge was mandated by the General Assembly to be three years. Moreover, while not explicitly reviewing this precise issue, the Supreme Court has nonetheless stated in reference to KRS 532.043 that "the three-year (now five-year) period of conditional discharge is to be served beginning upon the person's final release from incarceration or parole." Jones, 319 S.W.3d at 298.
In applying KRS 432.043 as it is written on its face, we are fulfilling our duty to interpret statutes to carry out the legislature's intent. See KRS 446.080(1). Pursuant to well-settled statutory interpretation rules, courts are limited in the interpretation of statutory words and phrases to their plain and ordinary meaning, Baker v. White, 251 Ky. 691, 65 S.W.2d 1022 (1933), and we cannot add to or subtract from the statutory language adopted by the legislature. Alderman v. Bradley, 957 S.W.2d 264, 266 (Ky. App. 1997). Accordingly, we construe KRS 532.043(4) as applying upon Bowman's release from incarceration.
Bowman's argument that he has been subjected to an illegal or incorrect sentence lacks merit. Although the circuit court did not specifically include reference to the three-year period of supervised release in the amended judgment, Bowman was as a matter of law automatically subject to KRS 532.043. The case of Jones v. Commonwealth, 200 S.W.3d 495, 496-97 (Ky. App. 2006) so holds, as follows:
While a former version of KRS 532.043 provided that "any person convicted of, pleading guilty to, or entering an Alford plea to a felony [sex] offense ... shall be sentenced to a period of conditional discharge[,]" the amended version (pursuant to which Jones was sentenced) provided that the felon "shall be subject to a period of conditional discharge[.]" (Emphases added.) Under the amended version of the statute, a three-year period of conditional discharge was not imposed by the trial court as a part of Jones's sentence. Instead, upon her conviction as a sex offender sentenced in 2001, Jones automatically became subject to the period of conditional discharge as a matter of law. Therefore, the omission of any mention of the statute or of its requirements in the court's written judgment is not erroneous. Jones is bound by its provisions.
Consequently, as a matter of law, upon Bowman's conviction of third-degree rape, he automatically became subject to the three-year period of conditional discharge. We interpret KRS 532.043 as commencing upon his release from incarceration.
We pause to note that the legislature apparently believed that there were sound public policy reasons for requiring a period of conditional discharge for those convicted of certain sex offenses, upon release from incarceration. This purpose clearly cannot be fulfilled during a period of incarceration.
Upon review of the briefs, supplemental briefs and record, Bowman is not asking this Court to review the Parole Board's decision to revoke his release. Accordingly, the issues of separation of powers and jurisdiction raised by the panel during oral argument under Jones v. Commonwealth, 319 S.W.3d 295 (Ky. 2010) are not applicable to this case.
Bowman also alleges that the Eighth and Fourteenth Amendments to the United States Constitution require resolution of this appeal in his favor. However, Bowman did not preserve these arguments by raising them in the circuit court, and he has not asked us to review them for palpable error. Consequently, these claims are waived and we will not consider them for the first time on appeal. See Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976).
Accordingly, the order of the Calloway Circuit Court is affirmed.
LAMBERT, JUDGE, CONCURS.
VANMETER, JUDGE, CONCURS IN RESULT ONLY AND WILL NOT FILE SEPARATE OPINION. BRIEF FOR APPELLANT: Rachel G. Cohen
Assistant Public Advocate
La Grange, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
R. Christian Garrison
Assistant Public Advocate
La Grange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky