HANKINS (ANTHONY GALE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 5, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001074-MR
ANTHONY GALE HANKINS
v.
APPELLANT
APPEAL FROM WEBSTER CIRCUIT COURT
HONORABLE C. RENE’ WILLIAMS, JUDGE
ACTION NO. 04-CR-00063
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: NICKELL, MOORE AND STUMBO, JUDGES
NICKELL, JUDGE: Anthony Gale Hankins (“Hankins”) appeals from the
Webster Circuit Court’s denial of his motion to alter, amend or vacate judgment
pursuant to CR1 60.02(a)(b)(c) and (f). We affirm.
On August 8, 2004, Hankins unlawfully entered the Crop Production
Services facility in Poole, Kentucky, with a five-gallon bucket and a hose. Once
1
Kentucky Rules of Civil Procedure.
inside, Kentucky State Police detective Brian Babbs observed Hankins scale an
anhydrous ammonia nurse tank and arrested him after a short chase. The bucket
later tested positive for anhydrous ammonia.
On October 6, 2004, a Webster County grand jury charged Hankins in
indictment 04-CR-00063 with: theft of anhydrous ammonia2 with intent to
manufacture methamphetamine;3 tampering with anhydrous ammonia equipment4
with intent to manufacture methamphetamine; criminal trespass in the third
degree;5 fleeing or evading police in the second degree;6 and resisting arrest.7
While out on bail and awaiting trial on the Webster County charges, Hankins
committed additional drug offenses on February 11, 2005, and was charged in
Henderson County under indictments 05-CR-00133 and 05-CR-00176.8
Subsequently, Hankins entered plea agreements in both Webster and
Henderson Counties. In accordance with these agreements, the Henderson Circuit
2
Kentucky Revised Statutes (KRS) 514.030.
3
KRS 218A.1432.
4
KRS 250.4892.
5
KRS 511.080.
6
KRS 520.100.
7
KRS 520.090.
8
Conspiracy to manufacture methamphetamine, KRS 506.040, KRS 218A.1432; conspiracy to
possess anhydrous ammonia in an unapproved container with intent to manufacture
methamphetamine, KRS 506.040, KRS 250.489, KRS 218A.1432; first degree possession of a
controlled substance (second offense), KRS 218A.1415; unlawful possession of
methamphetamine precursor, KRS 218A.1415; and possession of drug paraphernalia, KRS
218A.500.
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Court sentenced Hankins to seven years’ imprisonment on June 24, 2005, and
specified his sentence “shall be served consecutively to any sentence the defendant
has heretofore been sentenced to serve.” On August 5, 2005, the Webster Circuit
Court ordered Hankins to serve seven years’ imprisonment and also specified his
sentence shall run “consecutively with any previous sentence imposed.” Hence,
Hankins would be imprisoned fourteen years for eight felonies and four
misdemeanors, many of which were drug-related and some of which were
committed while free on bond.
After serving one year of his sentence, Hankins filed a motion for
post-conviction relief pursuant to CR 60.02(a)(b)(c) and (f) on September 1, 2006,
in Webster County. Therein, he claimed his plea was not knowingly, intelligently
and voluntarily made; his Webster County sentence should have been ordered to
run concurrently with his Henderson County sentence; and his fourteen-year
sentence was disproportionate.
In denying the motion, the Webster Circuit Court found the plea offer
signed by Hankins and his attorney was voluntary. Further, both the plea offer and
the order accepting the plea stated the Webster County sentence would be served
consecutively to any prior sentence. The Webster Circuit Court also noted it had
no specific recall of the case but it was unlikely it would have run the sentences
concurrently because Hankins was out on bail when he committed the Henderson
County crimes. Lastly, the Webster Circuit Court found an aggregate term of
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fourteen years’ imprisonment was reasonable given the quantity and nature of the
offenses committed.
Hankins raises one question on appeal: should his Webster County
sentence run concurrently with his Henderson County sentence? We answer this
question in the negative.
The denial of a CR 60.02 motion is reviewed for an abuse of
discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App. 2000). A trial
court may grant relief under CR 60.02 after a movant has demonstrated “he is
entitled to this special, extraordinary relief.” Gross v. Commonwealth, 648 S.W.2d
853, 856 (Ky. 1983). To abuse its discretion, the trial court’s decision must be
“arbitrary, unreasonable, unfair, or unsupported by sound legal principals.” Clark
v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). We will affirm the trial court’s
decision absent a “flagrant miscarriage of justice.” Gross, supra, 648 S.W.2d at
858.
Here, the trial court properly found the Webster and Henderson
County sentences should run consecutively. The language of KRS 530.060(3) is
specific: “[w]hen a person commits an offense while awaiting trial for another
offense . . . the sentence imposed . . . shall not run concurrently with confinement
for the offense for which the person is awaiting trial.” Because Hankins was
awaiting trial in Webster County when he committed the Henderson County
offenses, he was not entitled to concurrent sentencing as a matter of law.
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Further, the Henderson Circuit Court was the first to sentence
Hankins; the Webster Circuit Court’s order was entered a month later. Thus, when
the Webster Circuit Court ordered Hankins’s sentence to run “consecutively with
any previous sentence imposed,” it obviously intended his sentence to run
consecutively to the previously imposed Henderson County sentence. In light of
the clear language of KRS 530.060(3) and the trial court’s stated desire not to run
the sentences for the Webster and Henderson offenses concurrently, we conclude
the Webster Circuit Court did not abuse its discretion.
For the foregoing reason, the order of the Webster Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Anthony Gale Hankins, pro se
Sandy Hook, Kentucky
Jack Conway
Attorney General of Kentucky
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky
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