Opinion
NO. 2012-CA-000790-MR
03-08-2013
JOHN DAY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: John Day, Pro Se Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE JAY DELANEY, JUDGE
ACTION NO. 04-CR-00018
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS AND DIXON, JUDGES. DIXON, JUDGE: Appellant, John Day, appeals pro se from an order of the Harrison Circuit Court denying his motion for Kentucky Rules of Civil Procedure (CR) 60.02 relief. Finding no error, we affirm.
In March 2004, Appellant was convicted in the Harrison Circuit Court of first-degree assault and sentenced to ten years' imprisonment. At the time of the offense, Appellant was on parole from a prior thirty-five year sentence. As such, the trial court ordered the ten-year sentence to run consecutively to the prior sentence. Appellant's 2004 conviction and sentence were subsequently affirmed by this Court. Day v. Commonwealth, 2005-CA-1757-MR (September 21, 2007). Appellant thereafter pursued relief in the federal court, which was denied.
The record contains no information about the prior conviction(s) other than that the judgments were from McCreary and Madison Counties.
On April 8, 2011, Appellant filed a pro se motion for modification of his judgment and sentence pursuant to CR 60.02(f). Therein, Appellant argued that the trial court should have ordered the 2004 sentence to run concurrently with the prior sentence for which he was on parole. Further, Appellant claimed that because he was never afforded a parole violation hearing, he was entitled to parole supervision credit of 8,321 days toward his sentence. Although counsel was initially appointed to represent Appellant, the trial court eventually granted the Department of Public Advocacy's motion to withdraw and allowed Appellant to continue pro se. On March 28, 2012, the trial court entered findings of fact and conclusions of law denying Appellant's motion for modification of judgment. This appeal ensued.
As he did in the trial court, Appellant again argues that his due process rights were violated because he was denied a parole violation hearing. Further, he believes that because he was not afforded a hearing, his parole was never violated and he is therefore entitled to 8,321 days parole supervision credit toward his sentence. Finally, he contends that his ten-year sentence should run concurrently with his prior sentences because a parole violation hearing was not held within ninety days as provided by Kentucky Revised Statutes (KRS) 533.040. We are of the opinion that the trial court thoroughly resolved the issues and properly found that Appellant was not entitled to relief under CR 60.02(f).
We find no merit in Appellant's claim that he was entitled to a parole revocation hearing. KRS 439.352 provides, in relevant part, "Recommitment of a parolee to prison on a new sentence received for commission of a crime while on parole shall automatically terminate his parole status on any sentence on which he has not received a final discharge, or a restoration of civil rights, prior to the date of recommitment." In Boulder v. Parke, 791 S.W.2d 376, 377 (Ky. App. 1990), a panel of this Court noted that while due process requires that a parolee arrested on a warrant for a technical violation of parole be entitled to a probable cause hearing, when a parolee is returned to prison for a new conviction and not because he violated a technical condition of his parole, "there is no need for a preliminary hearing because the subsequent criminal conviction conclusively establishes the parole violation." (Citations omitted). Clearly, the trial court properly determined that pursuant to KRS 439.352, Appellant's parole status was automatically terminated upon his recommitment to prison for the 2004 conviction, thus eliminating the need for a hearing.
Likewise, we conclude that the trial court properly found that Appellant was not entitled to parole credit towards his sentence. KRS 439.344 provides, in pertinent part, that "the period of time spent on parole shall count as a part of the prisoner's sentence, except when a parolee is: (1) Returned to prison as a parole violator for a new felony conviction[.]" (Emphasis added). Appellant fails to cite to any authority, and we find none, that would exempt him from the above statutory provision.
Finally, as the trial court noted, KRS 533.060(2) prohibited the court from imposing concurrent sentencing. ("When a person has been convicted of a felony and is committed to a correctional detention facility and released on parole . . . and is convicted or enters a plea of guilty to a felony committed while on parole, . . . the period of confinement for that felony shall not run concurrently with any other sentence.") Furthermore, Appellant's reliance on KRS 533.040 is misplaced. Said statute requires concurrent sentencing in a probation revocation that does not take place within ninety days after the grounds for the revocation come to the state's attention. As Appellant was on parole, not probation, at the time of the violation, such is not applicable herein.
For the reasons set forth herein, the order of the Harrison Circuit Court denying Appellant's CR 60.02(f) motion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: John Day, Pro Se
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky