Opinion
NO. 2014-CA-001637-MR
05-06-2016
GILBERTO REYES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Renee VandenWallbake Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 13-CR-00943-003 OPINION
AFFIRMING
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BEFORE: KRAMER, TAYLOR AND THOMPSON, JUDGES. KRAMER, JUDGE: Gilberto Reyes appeals from a Fayette Circuit Court judgment and sentence of probation. The sole issue on appeal is whether, under Kentucky Revised Statutes (KRS) 532.120, the trial court erred in denying Reyes custody credit for the pretrial period he was subject to electronic monitoring. In light of the recent Kentucky Supreme Court ruling in Caraway v. Commonwealth, 459 S.W.3d 849 (Ky. 2015), we affirm.
Reyes was one of eight individuals who robbed a pedestrian at gunpoint in Lexington on January 4, 2013. Reyes was a juvenile at the time, and he was transferred to circuit court as a youthful offender. A grand jury indicted him on charges of robbery in the first degree and fleeing or evading police in the second degree.
During a hearing on October 23, 2013, the trial court granted Reyes's motion for a bond reduction with electronic monitoring at Reyes's mother's house. A pretrial release order was entered specifying that Reyes was "subject to electronic monitoring" and "shall be at either home and [/] or school." The order was later modified to allow Reyes to attend church.
On August 8, 2014, Reyes entered an Alford plea to an amended charge of robbery in the second degree with a handgun and received a five-year sentence, probated. At his sentencing hearing, his attorney requested credit for the period of 323 days that Reyes was subject to electronic monitoring, arguing that it qualified as "home incarceration" under KRS 532.120(7). The trial court disagreed, but invited Reyes's attorney to provide more information relating to the credit, stating that she would grant it later if she was mistaken. The trial court probated Reyes's sentence for a period of five years and told him that the custody credit issue would not matter if he made good decisions during the probation period.
A defendant entering a plea of guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) refuses to admit guilt but acknowledges that the Commonwealth can present sufficient evidence to support a conviction.
Reyes also served 43 days in pretrial juvenile detention. But, he has not included these days as part of his argument on appeal. Nonetheless, these additional days do not change the outcome of this appeal. --------
In the final judgment, the trial court included the following statement: "that Defendant shall be awarded custody credit, as calculated by the Division of Probation and Parole, towards service of the maximum term of imprisonment." This appeal by Reyes followed.
The pertinent sections of KRS 532.120 provide as follows:
Time spent in custody prior to the commencement of a sentence as a result of the charge that culminated in the sentence shall be credited by the Department of Corrections toward service of the maximum term of imprisonment in cases involving a felony sentence and by the sentencing court in all other cases. If the sentence is to an indeterminate term of imprisonment, the time spent in custody prior to the commencement of the sentence shall be considered for all purposes as time served in prison.KRS 532.120(3)
As used in subsections (3) and (4) of this section, time spent in custody shall include time spent in pretrial home incarceration pursuant to KRS 431.517, subject to the conditions imposed by KRS 532.245.KRS 532.120(7).
Reyes argues that the period during which he was subject to electronic monitoring qualified as home incarceration under subsection (7), and the trial court erred in not crediting him the time against his sentence.
Under the revisions to the statute that were made in 2011, however, this is a determination that was not within the purview of the trial court. The Kentucky Supreme Court recently interpreted the effect of the statutory revisions as follows:
Before it was amended in 2011, KRS 532.120(3) provided that the presentencing time spent in custody "shall be credited by the court imposing sentence." (Emphasis added.) Thus, under this version of the statute, trial courts had the duty to ensure the credit was properly applied, which "require[d] courts to address presentencing custody credit in their judgments." Bard v. Commonwealth, 359 S.W.3d 1, 4 (Ky.2011) (citing Doolan v. Commonwealth, 566 S.W.2d 413, 415 (Ky.1978)).Caraway, 459 S.W.3d at 854-55.
But the current language of KRS 532.120(3), which became effective June 8, 2011, . . . provides that the time spent in custody before sentencing "shall be credited by the Department of Corrections . . . in cases involving a felony sentence and by the sentencing court in all other cases." (Emphasis added.) This change to the statutory language divested the trial court of its prior duty and authority to ensure proper application of the presentencing custody credit in felony cases and, instead, placed it solely under the purview of the Department of Corrections. The sentencing court is empowered to award custody credit in felony cases only when "presentence report indicates that a defendant has accumulated sufficient sentencing credits . . . to allow for an immediate discharge from confinement upon pronouncement of sentence." KRS 532.120(8).
Thus, the trial court was not required or authorized to order credit for time served in custody before sentencing. Accordingly, its final judgment properly left the issue for the Department of Correction's Division of Probate and Parole to determine.
Should Reyes violate the terms of his probation and be required to serve his sentence, the Department of Corrections will determine whether to award sentencing credit for the period of electronic monitoring. Thereafter,
the role of the trial court under the statute as amended is essentially appellate in nature. See KRS 532.120(9) ("An inmate may challenge a failure of the Department of Corrections to award a sentencing credit under this section or the amount of credit awarded by motion made in the sentencing court no later than thirty (30) days after the inmate has exhausted his or her administrative remedies."). But the defendant must first pursue his administrative remedies with Corrections before this matter may be addressed by a court. Id.Id. at 855.
The Fayette Circuit Court's final judgment and sentence of probation are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Renee VandenWallbake
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky