Opinion
NO. 2012-CA-000067-MR
03-22-2013
MICHAEL L. TAYLOR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Michael L. Taylor, Pro Se Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM ADAIR CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
ACTION NO. 05-CR-00063
OPINION
AFFIRMING
BEFORE: CLAYTON, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Michael L. Taylor appeals the denial of his motion to modify his sentence based upon a retroactive application of House Bill (HB) 463. Because the Kentucky Supreme Court's recent decision in Rogers v. Commonwealth, 366 S.W.3d 446, 455-456 (Ky. 2012), precludes its retroactive application after the entry of judgment under KRS 446.110, we affirm.
On June 29, 2007, following a jury trial, final judgment was entered in Taylor's case. Taylor was sentenced to sixty-seven years' incarceration for two counts of first-degree trafficking in a controlled substance; one count of first-degree possession of a controlled substance; possession of marijuana, less than eight ounces, second or subsequent offense and second-degree; and being a persistent felony offender and second-degree persistent felony offender. His conviction and sentence were affirmed on direct appeal in 2008.
Taylor has previously asked this Court to retroactively apply HB 463 to shorten his sentence, but we declined to consider the issue because it was not properly before this Court. Taylor v. Commonwealth, 2012 WL 2360121, 4 (Ky.App. 2012).
HB 463 cannot apply retroactively because it does not contain language to support its retroactive application. Statutes are presumed to operate prospectively; "retroactive application of statutes will be approved only if it is absolutely certain the legislature intended such a result." Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 167 (Ky. 2010) (quoting Commonwealth Dept. of Agriculture v. Vinson, 30 S.W.3d 162, 168 (Ky. 2000)). "No statute shall be construed to be retroactive, unless expressly so declared." KRS 446.080(3).
Taylor is incorrect in his assertion that KRS 446.110 can make KRS 218A.1412, KRS 218A.1415 and KRS 532.080 retroactively apply to his sentence. In Rogers, 366 S.W.3d at 455-456, in the direct appeal of his conviction and sentence, Rogers also sought to use KRS 446.110 to permit him to benefit from the reduced penalties in the amended KRS 218A.1412, KRS 218A.1415 and KRS 532.080. KRS 446.110 provides in relevant part that "[i]f any penalty, forfeiture or punishment is mitigated by any provision of [a] new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect." Our Supreme Court determined that by its plain terms KRS 446.110 limits retroactivity to changes that take effect prior to the "pronouncement" of judgment. Rogers, 366 S.W.3d at 456. Therefore, because Rogers's judgment was pronounced nine months before HB 463 went into effect (even though his judgment was not yet final), the penalty mitigating changes to the law could not be applied retroactively to him. Id.
Taylor's judgment was finalized years before HB 463 went into effect. Therefore, he cannot take advantage of its mitigating effects. He was sentenced properly in accordance with the law that existed at the time he committed the offenses. Lawson v. Commonwealth, 53 S.W.3d 534, 550 (Ky. 2001). Accordingly we affirm the Adair Circuit Court's denial of Taylor's motion to modify his sentence.
ALL CONCUR. BRIEFS FOR APPELLANT: Michael L. Taylor, Pro Se
Burgin, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky