Opinion
2023-CA-0899-MR
09-13-2024
WILLIAM J. STEWART APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: William J. Stewart, pro se Pineville, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Christopher Henry Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HENDERSON CIRCUIT COURT HONORABLE KAREN LYNN WILSON, JUDGE ACTION NO. 21-CR-00268
BRIEF FOR APPELLANT: William J. Stewart, pro se Pineville, Kentucky
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Christopher Henry Assistant Attorney General Frankfort, Kentucky
BEFORE: ACREE, EASTON, AND GOODWINE, JUDGES.
OPINION AND ORDER
ACREE, JUDGE
Appellant, William Stewart, proceeding pro se, appeals the Henderson Circuit Court's order denying his post-conviction motion for relief. He argues his 26-year total prison term on four separate convictions in three counties violates the 20-year cap imposed by KRS 532.110(1)(c). We disagree and affirm.
Kentucky Revised Statutes.
BACKGROUND
Appellant's criminal record is as follows. In McCracken Circuit Court Case No. 14-CR-00130-001, Appellant was indicted and convicted for possession of a handgun by a convicted felon and sentenced to six (6) years in prison, and an additional five (5) years for first-degree trafficking in a controlled substance. The sentences ran concurrently for a total of six (6) years.
In McCracken Circuit Court Case No. 14-CR-00207, Appellant was sentenced to six (6) years in prison for possession of a handgun by a convicted felon and three (3) years for first-degree trafficking in a controlled substance. The sentences ran concurrently for a total of six (6) years.
The McCracken Circuit Court entered orders of commitment in each case on September 8, 2014. The orders say the two separate terms of six (6) years' imprisonment would run consecutively for a total sentence of twelve (12) years.
In Calloway Circuit Court Case No. 17-CR-00286, Appellant was sentenced on March 7, 2018, to seven (7) years for first-degree trafficking in a controlled substance. Other charges were dismissed. So, his total years to serve in this case was seven (7), but consecutive to the twelve (12) years he was already serving, for a total of nineteen (19) years.
In the instant appeal of Henderson Circuit Court Case No. 21-CR-00268, Appellant was ordered committed to custody on April 7, 2022, for seven (7) years for first-degree trafficking in a controlled substance and to three (3) years for two counts of first-degree possession of a controlled substance. All sentences in this case were to run concurrently for a total of seven (7) years in prison. However, that sentence was to run consecutively to the nineteen (19) years in prison he was already serving, for a total period of incarceration of twenty-six (26) years.
Appellant filed a CR 60.02(f) motion in this Henderson Circuit Court case arguing his sentence exceeded the statutory cap pursuant to KRS 532.110(1)(c). The court denied his motion. This appeal follows.
Kentucky Rules of Civil Procedure.
ANALYSIS
Notwithstanding the vehicle Appellant uses to bring this argument before the Court, we can correct an illegal sentence at any time. Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007). However, we conclude this was not an illegal sentence.
Appellant argues the trial court erred in ordering the seven-year sentence in the case to run consecutively to his existing combined nineteen-year sentences imposed by the circuit courts in McCracken and Calloway Counties. He argues the resulting twenty-six-year sentence violates the sentencing cap set forth in KRS 532.110(1)(c).
KRS 532.110(1)(c) would seemingly cap Appellant's total sentence at twenty years. That statute states, "The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed. . . ." KRS 532.110(1)(c)1. Appellant was convicted of only class C and D felonies in the cases at issue and, therefore, under KRS 532.080, his sentence should be capped at 20 years. Or so it seems.
It should go without saying that KRS 532.110(1)(c) was never intended to apply to separate, unrelated, independent criminal activity conducted across multiple counties and the span of years. Otherwise, criminals would have nothing to lose in continuing a life of crime once their separate sentences upon convictions totaled an amount sufficient to implicate KRS 532.110(1)(c), in this case, twenty years of imprisonment.
When the Kentucky Supreme Court rendered Kimmel v. Commonwealth, 671 S.W.3d 230 (Ky. 2023), it resolved an apparent conflict between KRS 532.110(1)(c) and KRS 533.060(3) that the latter statute mandated consecutive sentences when a person is convicted of a crime while awaiting trial for a previously committed crime. In that case, the Court held, "To harmonize and give effect to both statutes, we conclude that while sentences under KRS 533.060(3) must be consecutive, the resulting total term of years cannot violate the maximum aggregate sentence cap set forth in KRS 532.110(1)(c)." Id. at 239.
However, the facts here are distinguishable from those in Kimmel. In Kimmel, the defendant agreed to have both the offense for which he was awaiting trial and the offense which he committed while awaiting trial, tried together. Id. at 234. Such was not the case here because Appellant was already convicted in the previous cases when he committed the new offenses; therefore, these cases could not have been, and were not, tried together. Kimmel is distinguishable on its face.
This distinction makes a difference. In Johnson v. Commonwealth, 553 S.W.3d 213, 220 (Ky. 2018), the Supreme Court held that "the relevant sentencing statutes do not extend to sentences resulting from previous cases. Appellant's ten-year sentence resulted from a previous indictment and trial. . . . There was no sentencing error here." In that case, the Supreme Court was not examining the interplay between KRS 532.110(1)(c) and KRS 533.060(3), just as we are not examining it here.
In Johnson, the Court determined whether the twenty-year sentencing cap in KRS 532.110(1)(c) operated to prohibit the trial court's discretionary decision to run a sentence it was imposing consecutively to a sentence previously imposed in such a manner that the defendant's aggregate sentence exceeded the twenty-year cap. Id. at 219. The Supreme Court held that it did not. Id. at 220.
The application of that analysis is firmer and more obvious in this case because, unlike Johnson in which the separate crimes were tried in the same court, Appellant committed his crimes, was indicted, convicted, and sentenced in three different jurisdictions over nearly eight years. KRS 532.110(1)(c) simply has no application here.
Accordingly, the trial court did not err in ordering that the seven-year sentence run consecutively to the combined nineteen-year sentences Appellant already received in McCracken Circuit Court Case No. 14-CR-00130-001, McCracken Circuit Court Case No. 14-CR-00207, and Calloway Circuit Court Case No. 17-CR-00286.
CONCLUSION
The Henderson Circuit Court's order denying Appellant's CR 60.02 motion is affirmed. The Commonwealth's motion to cite supplemental authority is DENIED AS MOOT.
ALL CONCUR.