Opinion
NO. 2011-CA-001758-MR
01-03-2014
BRIAN MCMICHAEL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Brandon N. Jewell Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky W. Bryan Jones Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 04-CR-00009
OPINION
AFFIRMING IN PART
AND
REVERSING IN PART
BEFORE: COMBS, LAMBERT, AND THOMPSON, JUDGES. COMBS, JUDGE: Brian McMichael appeals from the order of the Bullitt Circuit Court revoking his probation in two cases. Following our review, we affirm in part and reverse in part.
On December 21, 2005, McMichael pleaded guilty to flagrant non-support (04-CR-00009). On February 9, 2006, he received a sentence of probation for five years. In July 2008, McMichael was indicted on two new charges (08-CR-00224). On January 5, 2010, he was convicted and entered a plea of guilty to receiving stolen property over $300 in value - a felony offense. As part of his plea bargain, the Commonwealth agreed not to seek revocation of McMichael's probation in case no. CR-00009. On December 21, 2009, in open court, McMichael received a second sentence of five years of probation in case no. CR-00224. The order of sentencing was not signed by the court until December 30, and it was entered on January 5, 2010.
On June 25, 2010, the Commonwealth filed a motion for the revocation of McMichael's probation in both cases. McMichael had incurred new charges in Jefferson County that he failed to report; McMichael failed to appear in court. He was not arrested until November 19, 2010, for an October 2010 burglary. On May 24, 2011, the court entered an order revoking McMichael's probation but failing to differentiate between CR-00009 and CR-00224. It provided that McMichael's sentence would run consecutively to the sentence that he was serving for his Jefferson County offenses. This appeal follows.
McMichael first argues that it was erroneous for the trial court to revoke his probation in CR-00009. The Commonwealth acknowledges that McMichael is correct, and we agree. Kentucky Revised Statute[s] (KRS) 533.020(1) directs that revocation must be done "prior to the expiration or termination of the period of probation." A circuit court loses jurisdiction after expiration of probation. Conrad v. Evridge, 315 S.W.3d 313, 315 (Ky. 2010). McMichael was sentenced to five years of probation on February 6, 2006; that term expired on February 6, 2011. Therefore, in May 2011, the trial court lacked jurisdiction to revoke McMichael's probation. Thus, we reverse the order as it pertains to case CR-00009.
McMichael also argues that his sentence for CR-00224 (a felony conviction) should be served concurrently with the sentence for the Jefferson County offenses. KRS 533.040(3) provides as follows:
A sentence of probation or conditional discharge shall run concurrently with any federal or state jail, prison, or parole term for another offense to which the defendant is or becomes subject during the period, unless the sentence of probation or conditional discharge is revoked. The revocation shall take place prior to parole under or expiration of the sentence of imprisonment or within ninety (90) days after the grounds for revocation come to the attention of the Department of Corrections, whichever occurs first.McMichael argues that the court should have applied this statute. If it had done so, it would have been required to order the sentences to run concurrently because McMichael's probation was revoked approximately one year (rather than within ninety days) following the commission of the Jefferson County offenses.
However, our Supreme Court has held in definite terms that when a person serving probation or parole commits a felony (as did McMichael), KRS 533.060(2) shall control sentencing. Brewer v. Commonwealth, 922 S.W.2d 380, 382 (Ky. 1996). The statute provides as follows:
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(Emphasis added). The language is both unequivocal and mandatory.
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.
McMichael argues that the General Assembly passed House Bill (HB) 463 in order to cause our penal code to be interpreted with more leniency. Thus, he contends that KRS 533.040(3) should control. However, he does not offer any legal authority to support this contention. We note that HB 463 was passed in 2011. In that same year, our Supreme Court published a footnote reiterating the holding of Brewer:
When a Kentucky state court probationer incurs a new Kentucky state court felony sentence while on probation . . . the ninety-day window of KRS 533.040(3) does not apply. Instead, in those situations, KRS 533.060, which mandates consecutive sentencing for felonies committed while on probation, applies. (Emphases added.)Commonwealth v. Love, 334 S.W.3d 92, 95 n.11 (Ky. 2011).
We are unaware of any legal authority which contradicts this holding. We are bound by the decisions of the Supreme Court. See Rule[s] of the Supreme Court of Kentucky (SCR) 1.030(8)(a).
Accordingly, we reverse the order which revoked McMichael's probation in CR-00009 and affirm the order which ordered McMichael to serve a consecutive sentence.
ALL CONCUR. BRIEF FOR APPELLANT: Brandon N. Jewell
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
W. Bryan Jones
Assistant Attorney General
Frankfort, Kentucky