Opinion
NO. 2016-CA-001017-MR
02-23-2018
COMMONWEALTH OF KENTUCKY APPELLANT v. TROY MARTIN APPELLEE
BRIEF FOR APPELLANT: Andy Beshear Kentucky Attorney General Andrew J. Gochenaur Special Assistant Attorney General Frankfort, Kentucky BRIEF FOR APPELLEE: Adam Braunbeck Louisville, Kentucky
TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 15-CR-000469 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, JOHNSON, AND D. LAMBERT, JUDGES. JOHNSON, JUDGE: The Commonwealth of Kentucky ("Commonwealth") appeals the June 20, 2016 Order of the Jefferson Circuit Court granting Troy Martin ("Martin") shock probation. After reviewing the record in conjunction with the applicable legal authorities, we REVERSE AND REMAND to the Jefferson Circuit Court.
BACKGROUND
Martin pled guilty to two counts of distributing matter portraying a sexual performance by a minor and twenty counts of possessing matter portraying a sexual performance by a minor. He was sentenced on October 27, 2015, to five years in prison on both counts of distribution, to run concurrently, and one year on each of the twenty counts of possession, to run concurrently with each other, but consecutive to the five years, for a total of six years in prison.
Kentucky Revised Statutes ("KRS") 531.340.
KRS 531.335. --------
On May 18, 2016, 204 days after he was sentenced and incarcerated, Martin brought before the court a motion seeking shock probation, pursuant to KRS 439.265. On May 23, 2016, the court held a hearing on Martin's motion. After hearing all the evidence, on June 20, 2016, the court issued an Order granting Martin's motion, but delaying his probation until February 13, 2017.
The Commonwealth filed an appeal from the June 20, 2016 Order.
STANDARD OF REVIEW
The issue of whether a court has acted outside its jurisdiction in granting a motion for shock probation is a question of law. Therefore, our review is de novo. Hidalgo v. Commonwealth, 290 S.W.3d 56, 58 (Ky. 2009).
ANALYSIS
The issue before us concerns when the statutory time begins to run pursuant to KRS 439.265 during which a circuit court may suspend further execution of Martin's sentence and grant him shock probation.
KRS 439.265(1) states:
Subject to the provisions of KRS chapter 439 and Chapters 500 to 534, any Circuit Court may, upon motion of the defendant made not earlier than thirty (30) days nor later than one hundred eighty (180) days after the defendant has been incarcerated in a county jail following his conviction and sentencing pending delivery to the institution to which he has been sentenced, or delivered to the keeper of the institution to which he has been sentenced, suspend the further execution of the sentence and place the defendant on probation upon terms the court determines. (Emphasis added).
KRS 439.265 requires that a motion for shock probation be filed not earlier than thirty (30) days nor later than one hundred eighty days (180) after a defendant has been incarcerated following conviction and sentencing. The trial court read the statute to mean that the time for the filing of a motion for shock probation can begin either when Martin was delivered to the county jail or when he was delivered to the state institution to which he has been sentenced.
Such an interpretation is inconsistent with the manner in which a jail sentence is calculated. Currently, when a defendant receives final sentencing in a felony case, he is immediately taken to the county jail where he awaits final removal to the state prison. His prison time is calculated beginning on the date when he is incarcerated, whether in a county jail or a state prison.
We read KRS 439.265(1) to say that the time to file a motion seeking shock probation begins to run when the inmate is delivered "to the keeper" of the institution, i.e., when the inmate is placed in the custody of the Department of Corrections. This reasoning is consistent with both KRS 532.060(1) and KRS 532.100(1). KRS 532.060(1) states, "A sentence of imprisonment for a felony shall be an indeterminate sentence. . . ." KRS 532.100(1) states, "When an indeterminate term of imprisonment is imposed, the court shall commit the defendant to the custody of the Department of Corrections for the term of his sentence and until released in accordance with the law." For Martin, that time began to run when he was taken into custody immediately following his sentencing. His motion for shock probation was filed 204 days after the statutory time began to run, thus the court, by statute, had lost jurisdiction to grant him shock probation.
This is further confirmed in Frank v. Commonwealth, 2017 WL 2492081 (Ky. App. 2017)(2015-CA-001558-MR), our most recent opinion on this matter. In Frank, we followed Terhune v. Commonwealth, 907 S.W.2d 779 (Ky.App. 1995) and found that Kentucky courts require strict compliance with the time limits imposed by KRS 439.265(1) for filing a motion seeking shock probation. "The plain and unambiguous language of KRS 439.265(1) expresses that the operation of the time limits for filing a motion for shock probation is based on the date when a defendant is delivered into the hands of his jailer, not when he begins to serve the particular sentence for which he was convicted." Terhune at 782. (Emphasis added).
We believe that the circuit court misread the statute and therefore, acted without jurisdiction in granting probation to Martin. Based upon our decision herein we reverse the court's order, and deem the issue raised by the Commonwealth as moot.
CONCLUSION
Based upon the foregoing, we hereby REVERSE the June 20, 2016 order of the Jefferson Circuit Court, and REMAND the matter to the circuit court to take action consistent with this opinion.
LAMBERT, D., JUDGE, CONCURS.
COMBS, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
COMBS, JUDGE, DISSENTING: I am persuaded that KRS 439.265(1) provides alternative dates from which to calculate time limits with respect to shock probation. I am also persuaded that the trial court in this case had -- and properly exercised -- jurisdiction in entertaining Martin's motion for shock probation. Therefore, I file this dissent.
Pursuant to KRS 439.265(1), time limits for shock probation are alternatively calculated
from one of two events: (1) when the defendant has been incarcerated in a county jail following his conviction and sentencing pending delivery to the institution to which he has been sentenced, or (2) when the defendant is delivered to the keeper of the institution to which he has been sentenced . . . .Terhune v. Commonwealth, 907 S.W.2d 779, 782 (Ky. App. 1995) (quotation marks omitted). Martin was sentenced on October 27, 2015, and he was incarcerated in the county jail on the same day pending delivery to the Department of Corrections ("DOC")—the institution to which he was sentenced. According to Martin's motion for shock probation, he was not committed to the custody of the DOC until March 4, 2016. Based on the date on which he was turned over to the DOC, Martin's May 18, 2016, motion was filed more than 30 days -- but less than 180 days after he was "delivered to the keeper of the institution to which he [was] sentenced."
The Commonwealth did not contest Martin's claimed date of delivery to the DOC in the circuit court, nor does it attempt to controvert that date on appeal. Instead, the Commonwealth believes the time should be calculated from the date that Martin was sentenced and sent to county jail pending delivery to the DOC. It argues that allowing Martin to move for shock probation 30 days after he was turned over to the DOC would extend the trial court's jurisdiction indefinitely in violation of the principle of separation of powers. The Commonwealth relies on Prater v. Commonwealth, 82 S.W.3d 898 (Ky. 2002), in which the Kentucky Supreme Court held unconstitutional a statute authorizing circuit courts to grant "probation" at any point during an inmate's incarceration. Id. at 907. I disagree.
First, KRS 439.265(1) must be read in a manner that is consistent with its clearly stated language. "[S]tatutes must be given their literal interpretation unless they are ambiguous and if the words are not ambiguous, no statutory construction is required." Stephenson v. Woodward, 182 S.W.3d 162, 170 (Ky. 2005) (citations and internal quotation marks omitted). KRS 439.265 is unambiguous in permitting a convict to file for shock probation after 30 days -- but not more than 180 days -- following his incarceration in county jail upon conviction and sentence -- or after he is delivered to the keeper of the institution to which he has been sentenced.
Second, I am not persuaded that a literal interpretation of KRS 439.265 would give the circuit court authority to grant probation at any time during an inmate's incarceration in violation of the separation-of-powers provision of the Kentucky Constitution. "[A] constitutional violation of separation of powers occurs when, and only when, one branch of government exercises power properly belonging to another branch." Prater, 82 S.W.3d at 907. However, a statute giving trial courts "interminable, and therefore unreasonably long, authority to suspend the execution of a defendant's sentence—in other words, authority that is entirely in the bailiwick of the executive branch of government[,]" would violate the principle of separation of powers. Id. (internal quotations omitted).
Regardless of whether the filing window under KRS 439.265 is calculated from the date an inmate is remanded to county jail after sentencing or from the date that he is committed to the custody of the DOC, the circuit court's control over the judgment is limited. Id. at 906. In either instance, the inmate is given 150 days to file his motion—a period that is "not unreasonably long" and that is "only for the limited purpose of considering shock probation." Id. (citation omitted).
The Kentucky Supreme Court's predecessor court specifically held that the limited authority granted to the circuit court after an inmate has been delivered to the institution to which he has been sentenced does not violate the constitutional doctrine of separation of powers. See Commonwealth v. Williamson, 492 S.W.2d 874 (Ky. 1973) (holding constitutional a previous version of KRS 439.265 that did not include the language pertaining to a defendant who has been incarcerated in a county jail following his conviction and sentencing).
To summarize, in the case before us, I believe that the circuit court had jurisdiction to consider Martin's shock probation motion for a limited time after Martin was turned over to the DOC. I am persuaded that the court's exercise of its jurisdiction during this period was wholly proper. BRIEF FOR APPELLANT: Andy Beshear
Kentucky Attorney General Andrew J. Gochenaur
Special Assistant Attorney General
Frankfort, Kentucky BRIEF FOR APPELLEE: Adam Braunbeck
Louisville, Kentucky