ROBERT POLK v. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 19, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2005-CA-000738-MR
ROBERT POLK
v.
APPELLANT
APPEAL FROM FULTON CIRCUIT COURT
HONORABLE WILLIAM L. SHADOAN, JUDGE
ACTION NO. 02-CR-00023
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART
AND REMANDING
** ** ** ** **
BEFORE:
BARBER, GUIDUGLI, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Robert Polk appeals that portion of a judgment
and sentence of the Fulton Circuit Court which ordered a oneyear sentence to be run consecutively to a twenty-year sentence,
for a total of twenty-one years’ imprisonment.
Because the
twenty-one-year sentence exceeded the maximum sentence of twenty
years authorized by KRS 532.110 and KRS 532.080, we reverse in
part and remand for resentencing.
On March 28, 2002, a Fulton County grand jury returned
an indictment (no. 02-CR-00023) charging appellant with the
following offenses:
two counts of third-degree burglary (Counts
I and IX); three counts of receiving stolen property - value
over $300 (Counts II, III, and IV); one count of operating a
vehicle while under the influence of intoxicants (Count VI); one
count of first-degree fleeing or evading a police officer (Count
VII); one count of operating a motor vehicle with a suspended or
revoked operator’s license (Count VIII); one count of firstdegree criminal mischief (Count X);1 and being a first-degree
persistent felony offender (Count V).
On August 13, 2002, appellant was tried on some of the
charges in the indictment (Counts III, IV, V, VI, and VII).
Count VI was dismissed.
III.
Appellant was found not guilty on Count
Appellant was convicted of Count IV (receiving stolen
property – value over $300, Class D felony), Count VII (firstdegree fleeing or evading, Class D felony), and Count V (PFO I).
Appellant was sentenced to five years each for Counts IV and
VII, to run consecutively, enhanced to twenty years for the PFO
I.
Appellant’s convictions were affirmed on direct appeal by
the Kentucky Supreme Court.
1
KRS 512.020. We note that first-degree criminal mischief was incorrectly
referred to in the indictment and elsewhere in the record as a Class A
misdemeanor. This charge was ultimately amended to second-degree criminal
mischief, which is a Class A misdemeanor. KRS 512.030.
-2-
On May 21, 2004, appellant filed a motion to dismiss
the remaining counts in the indictment for failure to prosecute.
The Commonwealth’s response to the motion to dismiss requested
that the court set a date for trial on the remaining counts.
In
January, 2005, the Commonwealth and appellant reached a plea
agreement as to the remaining charges.
In accordance with the
plea agreement, on February 10, 2005, appellant pled guilty to
Count II (receiving stolen property – value over $300, Class D
felony), Count IX (third-degree burglary, Class D felony), and
Count X (amended to second-degree criminal mischief, Class A
misdemeanor),2 with the Commonwealth recommending a sentence of
one year each on Counts II and IX, and 12 months on Count X.
The trial court accepted the plea, and sentenced appellant to
one year each on Counts II and IX, and 12 months on Count X.
The trial court ordered the two one-year terms to run
concurrently, for a total of one year.
The trial court further
ordered that the one-year sentence run consecutively to the
twenty-year sentence previously imposed, for a total of twentyone years’ imprisonment.
Appellant and defense counsel
objected, arguing that the court was not permitted to run the
one-year sentence consecutively to the twenty-year sentence
previously imposed, because all of the charges were under the
2
Count I (third-degree burglary) was merged with Count II. Count VIII was
dismissed as merged with Count VII (fleeing or evading), for which appellant
had been found guilty at trial.
-3-
same indictment and the maximum permissible sentence for
appellant’s convictions was twenty years.
On February 10, 2005,
a “Judgment and Sentence on Plea of Guilty” was entered, in
which the one-year sentence was ordered to run consecutively to
the twenty-year sentence previously imposed (for a total of
twenty-one years’ imprisonment).3
This appeal followed.
On appeal, appellant contends that the trial court
erred when it sentenced him to serve the one-year sentence
consecutively to the previously imposed twenty-year sentence,
for a total of twenty-one years.
Appellant contends that the
twenty-one-year sentence exceeds the maximum of twenty years
authorized by KRS 532.110 and KRS 532.080.4
We agree.
KRS
532.110 provides, in pertinent part:
(1)
When multiple sentences of imprisonment
are imposed on a defendant for more
than one (1) crime . . . the multiple
sentences shall run concurrently or
consecutively as the court shall
determine at the time of sentence,
except that:
. . . .
(c)
The aggregate of consecutive
indeterminate terms shall not
exceed in maximum length the
longest extended term which would
3
The judgment and sentence entered February 10, 2005, incorrectly states
that the twenty-year sentence was imposed on January 26, 2003. The record
indicates that the sentence was imposed on November 14, 2002.
4
The Commonwealth does not dispute appellant’s legal argument, and simply
requests this court to adjudicate the merits of the case as required by the
applicable statutory and case law.
-4-
be authorized by KRS 532.080 for
the highest class of crime for
which any of the sentences is
imposed. . . .
KRS 532.080 provides, in pertinent part:
(6)
A person who is found to be a
persistent felony offender in the first
degree shall be sentenced to
imprisonment as follows:
. . . .
(b)
If the offense for which he
presently stands convicted is a
Class C or Class D felony, a
persistent felony offender in the
first degree shall be sentenced to
an indeterminate term of
imprisonment, the maximum of which
shall not be less than ten (10)
years nor more than twenty (20)
years.
As the highest class of crime for which any of the sentences was
imposed under the indictment was a Class D felony, the maximum
sentence authorized by KRS 532.110 and KRS 532.080 was twenty
years.5
See, Young v. Commonwealth, 968 S.W.2d 670 (Ky. 1998),
overruled on other grounds by, Matthews v. Commonwealth, 163
S.W.3d 11 (Ky. 2005); Dawson v. Commonwealth, 756 S.W.2d 935
(Ky. 1988); Hendley v. Commonwealth, 573 S.W.2d 662 (Ky. 1978);
Tabor v. Commonwealth, 613 S.W.2d 133 (Ky. 1981).
Accordingly,
the trial court erred in running the one-year sentence
5
It was not argued that any exception to KRS 532.110(1)(c) applied.
-5-
consecutively to the twenty-year sentence for a total sentence
of twenty-one years.
For the aforementioned reasons, we affirm in part,
reverse in part and remand to the Fulton Circuit Court for
resentencing consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Astrida L. Lemkins
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky
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