MONTEZ LAMONT COSBY V. COMMONWEALTH OF KENTUCKY
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2002-SC-0806-DG
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APPELLANT
MONTEZ LAMONT COSBY
V.
ON REVIEW FROM COURT OF APPEALS
2001-CA-1130-MR
APPEAL FROM JEFFERSON CIRCUIT COURT
01-C R-0211
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE STUMBO
AFFIRMING
This appeal poses the following issue of first impression : Where one is convicted
of or pleads guilty to a criminal offense, remains free on bond while waiting to be
sentenced, and in the interim perpetrates another crime, does the phrase "awaiting trial"
as set forth in KRS 533.060(3) apply so as to require the imposition of consecutive
sentences . For the reasons set forth below, we hold that it does and, therefore, affirm
the result of the opinion rendered by the Court of Appeals .
The facts are these . In June of 2000, the appellant, Montez Lamont Cosby,
agreed to waive his right to a jury determination of sentencing following his conviction
on a single offense and agreed to accept the Commonwealth's plea agreement . Cosby
also agreed to accept the Commonwealth's offer on two other charges and
subsequently entered a guilty plea. In exchange for Cosby's plea, the Commonwealth
agreed to recommend a total sentence of fifteen years imprisonment. However, if
Cosby subsequently failed to appear at sentencing, he agreed to serve a prison term of
twenty years. Cosby was allowed to remain free on bond until sentencing, which was
scheduled to be held before the Jefferson Circuit Court on August 1, 2000 . He failed to
appear .
When Cosby failed to appear for sentencing, a bench warrant was issued for his
arrest. Cosby was arrested pursuant to the bench warrant on December 18, 2000, and
was subsequently charged with a variety of criminal offenses under Indictment No . 01
CR-0211 . In March of 2001, pursuant to a plea agreement, Cosby entered a plea of
guilty to the following charges: possession of handgun by a convicted felon; possession
of drug paraphernalia while possessing a firearm ; possession of a controlled substance
(marijuana) while possessing a firearm ; and operation of a motor vehicle by a person
whose operator's license has been suspended or revoked . The Commonwealth agreed
to recommend that Cosby serve a total of eight years imprisonment and had no
objection to that sentence running concurrently with Cosby's other sentences if
permitted by law. At sentencing, the circuit judge, Hon . F . Kenneth Conliffe, determined
that Cosby's eight-year sentence on Indictment No. 01-CR-0211 was required to run
consecutively to Cosby's total twenty-year sentence on the prior offenses pursuant to
KRS 533 .060(3). Cosby reserved his right to an appeal on the sentencing issue .
Cosby appealed to the Court of Appeals, which in a 2-1 opinion, upheld the
circuit court's decision regarding the sentencing issue in view of our opinion in Moore v.
Commonwealth , Ky., 990 SW.2d 618 (1999) . Although the issue presented in Moore
concerned a defendant who committed a criminal offense after he had been indicted but
not yet arraigned, as opposed to a defendant who committed a subsequent offense
before sentencing, the Court of Appeals found the same considerations to be applicable
in both situations . The Court of Appeals stated that KRS 533 .060(3) should apply "as
strongly to a person who . . . committed a new crime after conviction but before
sentencing on another offense," and ultimately concluded that the circuit court was
precluded from running Cosby's sentences concurrently . We granted discretionary
review and this appeal followed .
Essentially, it is Cosby's position that the actual issue in this case is whether the
phrase "awaiting trial" as set forth in KRS 533 .060(3), can be construed to mean
"awaiting sentencing ." Cosby states that Commonwealth v. Brasher , Ky. App., 842
S.W.2d 535 (1992) (overruled to the extent it conflicted with Moore, supra), stands for
the proposition that the phrase "awaiting trial" does not mean "awaiting sentencing,"
and thus KRS 533 .060(3) is not applicable to him .
KRS 533.060(3) states as follows :
When a person commits an offense while awaiting trial for another
offense, and is subsequently convicted or enters a plea of guilty to the
offense committed while awaiting trial, the sentence imposed for the
offense committed while awaiting trial shall not run concurrently with
confinement for the offense for which the person is awaiting trial.
We are primarily concerned with the meaning of the phrase "awaiting trial." This very
issue was previously before this Court in Norton v . Commonwealth , Ky., 37 S .W.3d 750,
754 (2001), but was ultimately not resolved .
"General principles of statutory construction hold that a court must not be guided
by a single sentence of a statute but must look to the provisions of the whole statute
and its object and policy." County of Harlan v. Appalachian Reg'I Healthcare, Inc ., Ky.,
85 S .W.3d 607, 611 (2002). "No single word or sentence is determinative, but the
statute as a whole must be considered." Id . In addition, "[w]e have a duty to accord to
words of a statute their literal meaning unless to do so would lead to an absurd or
wholly unreasonable conclusion." Bailey v. Reeves, Ky., 662 S .W.2d 832, 834 (1984) .
Moreover, "[i]n construing statutory provisions, it is presumed that the legislature did not
intend an absurd result ." Commonwealth, Central State Hosp. v . Gray, Ky ., 880 S.W.2d
557, 559 (1994) . The legislature's intention "shall be effectuated, even at the expense
of the letter of the law." Commonwealth v. Rosenfield Bros . & Co. , 118 Ky. 374, 80
S.W. 1178, 1180 (1904) .
We must further acknowledge that the General Assembly "intends an Act to be
effective as an entirety. No rule of statutory construction has been more definitely
stated or more often repeated than the cardinal rule that significance and effect shall, if
possible, be accorded to every part of the Act ." George v. Scent, Ky., 346 S .W.2d 784,
789 (1961): Thus, we must look at all of the provisions of KRS 533 .060.
There is no doubt that, with regard to KRS 533 .060(3), it was the General
Assembly's intent "to punish persons who were convicted of committing a subsequent
crime or crimes while awaiting trial more severely by eliminating the possibility of
concurrent sentences." Moore , 990 S .W.2d at 621 . Neither party to this action disputes
this. Also, KRS 533 .060(2) precludes a court from ordering a sentence for a criminal
offense committed while an accused is on probation or parole to run concurrently with
another sentence. See Devore v. Commonwealth , Ky., 662 S .W.2d 829, 831 (1984).
This is further indication of the General Assembly's intent in enacting KRS 533 .060.
We cannot agree with Cosby's position that the phrase "awaiting trial" cannot be
construed to include "awaiting sentencing ." "A trial is the judicial investigation and
determination of the issues between the parties to an action." Campbell v . Hulett , Ky.,
243 S .W.2d 608, 611 (1951). In the case at bar, sentencing was an issue between
Cosby and the Commonwealth that needed to be determined . As such, under the
circumstances, it is our view that Cosby's sentencing hearing can be construed to fall
within the meaning of the term "trial" for purposes of KRS 533.060(3) .
Additionally, in Moore, we held that the phrase "awaiting trial" in KRS 533.060(3)
was "broad enough to include the period of time immediately after arrest." 990 S .W.2d
at 621 . In light of that holding, we find that the aforesaid phrase is also expansive
enough to encompass the sentencing of a criminal defendant. It is clear that absurd
consequences would result if we adopted Cosby's interpretation of "awaiting trial;"
namely, that the statute would apply until entry of the plea and after sentencing, but not
to the period between the plea and sentencing . The unreasonable result would be
Cosby's circumvention of the General Assembly's intent to punish those individuals who
commit additional criminal offenses while awaiting further proceedings on other
charges . This is especially true under the circumstances peculiar to this matter where
the appellant committed criminal offenses after he failed to appear in court for
sentencing on his earlier convictions .
Cosby correctly states that Brasher , supra, stands for the proposition that
"awaiting trial" does not mean "awaiting sentencing." On the other hand, Cosby's
position that Brasher remains good law as to the issue presented in this case is
misplaced, as we conclude that the Court of Appeals reached the wrong decision
therein . In Brasher , the Court of Appeals determined that KRS 533 .060(3) did not
preclude a circuit court from allowing sentences to run concurrently when an individual
perpetrated a criminal offense while awaiting sentencing . The Court of Appeals erred in
applying a narrow interpretation of KRS 533 .060(3) . "All statutes of this state shall be
liberally construed with a view to promote their objects and carry out the intent of the
legislature ." KRS 446 .080(1). It is manifest that the intent of KRS 533 .060(3) was to
penalize those persons who perpetrated criminal acts while on release or otherwise
awaiting additional court proceedings related to other criminal acts. The Court of
Appeals' decision in Brasher was clearly incorrect ; accordingly, it is hereby overruled .
We note that we should refrain from surmising what the state legislature "may
have intended but failed to articulate." Peterson v. Shake, Ky., 120 S .W .3d 707, 709
(2003) . However, the intent of the General Assembly with regard to KRS 533 .060(3) is
patent . The purpose of statutory construction "is to give effect to the intent of the
legislature ." County of Harlan , 85 S.W.3d at 611 . Therefore, we hold that the phrase
"awaiting trial" as set forth in KRS 533 .060(3) includes the period of time following the
establishment of guilt (whether by conviction or the entering of a guilty plea) and before
sentencing .
Here, KRS 533 .060(3) prohibited the circuit court from running Cosby's sentence
on Indictment No. 01-CR-0211 concurrently with his other sentences. Accordingly, for
the reasons stated, we hereby affirm the opinion of the Court of Appeals and the
sentence imposed by the Jefferson Circuit Court.
Cooper, Graves, Johnstone, and Wintersheimer, JJ ., concur. Keller, J ., dissents
by separate opinion, with Lambert, C .J ., joining that dissent .
COUNSEL FOR APPELLANT :
Daniel T. Goyette
200 Civic Plaza
719 West Jefferson Street
Louisville, KY 40202
Frank Wm . Heft, Jr.
Jefferson District Public Defender
200 Civil Plaza
719 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General
Capitol Building
Frankfort, KY 40601
Samuel J. Floyd, Jr.
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : AUGUST 26, 2004
TO BE PUBLISHED
,Suprme d1ourf of 'AmfurkV
2002-SC-0806-DG
MONTEZ LAMONT COSBY
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2001-CA-1130-MR
APPEAL FROM JEFFERSON CIRCUIT COURT
01-CR-0211
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE KELLER
I respectfully dissent because I do not believe that the phrase "awaiting
trial" contained in KRS 533.060(3) can be so broadly construed to apply to
offenses committed after Appellant's trial and guilty pleas.
Although I agree with the majority that it is this Court's duty when
interpreting statutes to give effect to the General Assembly's intent, I "know of no
rule of interpretation that would require us to utterly ignore the plain . . . meaning
of words in a statute ."' To the contrary, "[t]he plain meaning of the statutory
language is presumed to be what the legislature intended, and if the meaning is
plain, then the court cannot base its interpretation on any other method or
' Gold Tradinq Stamp Co . v. Commonwealth , 224 Ky. 136, 5 S.W.2d 910,
911 (1928) . Cf. Powers v. Brewer , 238 Ky. 579, 38 S .W.2d 466, 469 (1931)
("[T]he principle that the statute is to be liberally construed does not mean that its
provision can be entirely ignored .").
Under the rubric of effecting the "General Assembly's intent, ,3 the
source."2
majority opinion ignores the plain language of the statute and impermissibly fills
in gaps left by the Legislature . When interpreting statutes, "we should not
ignore the plain meaning of the words used . . . simply because a different
,5
interpretation might further or more efficiently accomplish its ultimate purpose.'
Only "when [it] would produce an injustice or ridiculous result" should we ignore
the plain meaning of a statute . Here, although we may not desire the outcome,
the plain meaning of the statute produces neither an injustice nor a ridiculous
result .
KRS 533 .060(3) plainly states that it applies "[w]hen a person commits an
.,,7
.
offense while awaiting trial
This provision has been consistently applied to
RONALD BENTON BROWN & SHARON JACOBS BROWN, STATUTORY
INTERPRETATION : THE SEARCH FOR LEGISLATIVE INTENT § 4.2, at 38 (NITA,
[hereinafter "STATUTORY INTERPRETATION"] .
3 Cosby v. Commonwealth , Ky., - S .W.3d
2002)
(2004) (Slip Op . at
4 Commonwealth v. Brasher , Ky. App ., 842 S .W .2d 535, 536 (1992),
overruled on other grounds by Moore v. Commonwealth , Ky., 990 S .W .2d 618
(1999) ("[T]he legislature nevertheless left a gap between trial and sentencing, as
well as between arrest and indictment .") .
5 Autozone, Inc. v. Brewer, Ky., 127 S .W.3d 653, 656 (2004) (citing Bd . of
Educ . of Nelson Co. v. Lawrence , Ky., 375 S .W .2d 830, 831 (1963)) .
6 Johnson v. Frankfort & C. R . R. , 303 Ky. 256, 197 S.W.2d 432, 434
(1946) ("A cardinal rule for the interpretation of statutes--if there is any doubt
from the language employed as to the intent and purpose of the Legislature in
enacting it--is that courts should avoid adopting a construction which would be
unreasonable and absurd in preference to one that is 'reasonable, rational,
sensible and intelligent . . . ."') ; STATUTORY INTERPRETATION, supra note 2, § 4.3,
at 40 .
KRS 533.060(3) (emphasis added) .
-2-
situations where the defendant is actually "awaiting trial ."8 It has not previously
been interpreted by Kentucky's appellate courts as applicable either after a trial
or after the possibility of a trial has been foreclosed . In Commonwealth v.
Brasher , 9 the Court of Appeals noted correctly that "[i]t is generally considered
that one is not awaiting trial before indictment or after guilt is established ."' 0 In
Moore v. Commonwealth ," however, this Court expanded the limits on the frontend to include arrest. Now the majority opinion expands the limits on the backend to a point clearly past the plain language of the statute .
Even if the words of the statute are broad enough to include the time
period after an arrest, as this Court held in Moore, at least in that situation one
can anticipate that the defendant will stand trial, but as in this case, once a guilty
plea is entered or jury sentencing is waived, clearly a defendant is only awaiting
8 Cardwell v. Commonwealth , Ky., 12 S .W.3d 673 (2000) (Appellant had
two pending charges against him that had not been resolved at the time he was
charged with murder and first degree assault.); White v. Commonwealth , Ky., 5
S .W.3d 140, 142 (1999) ("[A]t the time Appellant committed the instant offense,
he was released on bond awaiting trial for previous charges ."); Moore v.
Commonwealth , Ky., 990 S .W .2d 618, 621 (1999) ("[P]ersons are considered to
be awaiting trial if they have sufficient knowledge of the first offense by means of
arrest for that crime or crimes and are released on bond or otherwise
incarcerated for the crimes charged ."); Commonwealth v. Martin , Ky. App ., 777
S.W .2d 236 (1989) (While out on bond and awaiting trial, Appellant committed
new offenses .); Rose v . Commonwealth , Ky. App., 738 S.W .2d 835 (1987)
(Appellant committed misdemeanors while on release awaiting trial on two
previous felonies .); Handley v. Commonwealth , Ky . App ., 653 S.W .2d 165 (1983)
(Appellant committed new offenses while awaiting trial on forgery charges .).
9 Ky. App ., 842 S.W.2d 535 (1992), overruled on other grounds by Moore
v. Commonwealth , Ky., 990 S .W.2d 618 (1999) .
'° Brasher , 842 S.W . at 536-537 .
" Ky., 990 S .W .2d 618 (1999) .
-3-
final sentencing and is no longer awaiting trial . I believe that Brasher 12 is correct
and that once a defendant has pled guilty and is awaiting sentencing, KRS
533.060(3) no longer applies. When a defendant enters a guilty plea, he or she
is considered to be convicted . . At that point the opportunity for a trial has
passed ; the defendant no longer anticipates standing trial and is merely awaiting
sentencing .
A review of KRS 532 .110 and KRS 533 .060 shows that the Legislature
has enacted numerous provisions on sentencing for additional crimes committed
at various stages of the criminal trial process and beyond : "while awaiting trial for
another offense,
"while . . . imprisoned in a penal or reformatory institution, " 15
"during an escape from imprisonment '06 "while . . . await[ing] imprisonment, "17 or
"while on parole, probation, shock probation, or conditional discharge. "18 Had the
A comparison of Brasher and Moore reveals that Moore overruled
Brasher only to the extent that Brasher stated that "one can only be considered
awaiting trial after an indictment." Moore , 990 S.W.2d at 620 .
12
13
Thomas v. Commonwealth , Ky., 95 S .W .3d 828, 829 (2003) ("When
Appellant freely, knowingly, and intelligently entered a plea of guilty to first
degree possession of a controlled substance, he acknowledged the fact of
having committed a crime and accepted legal responsibility for a criminal act.
Thus, Appellant's status as a `convicted felon' was established, and all that
remained was the imposition of a sentence ."); Commonwealth v . Reynolds, Ky.,
365 S .W .2d 853 (1963) (When a defendant enters a guilty plea or a verdict which
ascertains and publishes the fact of guilt is returned, then the defendant has
been convicted of the charge .); Grace v. Commonwealth , Ky. App., 915 S.W.2d
754 (1996) (Defendant was a "convicted felon" for purposes of statute prohibiting
possession of a handgun by a convicted felon, where he possessed handgun
after plea of guilty to felony in prior case but before imposition of sentence .).
14
15
KRS 533 .060(3) .
KRS 532 .110(3) .
16
17
18
Id .
Id .
KRS 533 .060(2) .
Legislature wanted to address crimes committed after conviction and before final
sentencing, the Legislature could have done so . Perhaps, it assumed, albeit
incorrectly, that no gap existed between trial and sentencing .
Nevertheless, two years after the Brasher decision, the Legislature had
the opportunity to expand the application of the sentencing provision in
subsection (3) when it amended a different subsection of KRS 533.060 .' 9 Since
the Legislature is presumed to know how the statute had been interpreted and
applied since its original enactment, the fact that the Legislature did not alter
subsection (3) at that time indicates its approval of the Brasher interpretation .
Although statutes are to be liberally construed, the Court cannot entirely
ignore provisions or add to provisions those words, phrases or meanings whose
omission appears to have been an oversight .2' By applying KRS 533.060(3) to
'9
2°
1994 Ky. Acts ch. 418, § 14.
Rye v. Weasel , Ky., 934 S .W .2d 257, 262 (1996) ("The Kentucky and
Federal courts have recognized the failure of the legislature to change a known
judicial interpretation of a statute as extremely persuasive evidence of the true
legislative intent. There is a strong implication that the legislature agrees with a
prior court interpretation of its statute when it does not amend the statute
interpreted ."); STATUTORY INTERPRETATION, supra note 2, § 9 .3.1 at 149-150 ("[I]f
the legislature reenacts the statute without rejecting the interpretations of the
earlier act, it probably means to approve those interpretations .").
2'
Commonwealth v. Harrelson , Ky., 14 S.W .3d 541, 546 (2000) ("Where a
statute is intelligible on its face, the courts are not at liberty to supply words or
insert something or make additions which amount, as sometimes stated, to
providing for a casus omissus, or cure an omission ." (citation omitted)) ; Boone v.
Commonwealth , Ky., 821 S .W .2d 813, 815 (1992) (quoting Hatchett v. City of
Glasgow, Ky., 340 S .W .2d 248, 251 (1960)) ("'[C]ourts are not at liberty to supply
words or insert something or make additions [to statutes] which amount, as
sometimes stated, to providing for a casus omissus, or cure an omission,
however just or desirable it might [seem to] be to supply an omitted provision ."').
the period between conviction and final sentencing by the trial court, the majority
opinion extends the words "awaiting trial" beyond any plausible meaning
22
For the foregoing reasons, I would reverse the sentence imposed by the
trial court and remand with directions to disregard KRS 533 .060(3)'s proscription
against a concurrent sentence and to resentence Appellant .
Lambert, C.J ., joins this dissenting opinion .
22
Flying J Travel Plaza v. Commonwealth of Ky., Transp . Cabinet, Dep't
of Highways, Ky., 928 S.W .2d 344, 347 (1996) (citing Ky. Ass'n of Chiropractors,
Inc. v. Jefferson Co. Med . Soc'y, Ky., 549 S.W.2d 817 (1977)) (The Court has a
responsibility "to ascertain the intention of the legislature from words used in
enacting statutes rather than surmising what may have been intended but was
not expressed .") . See also Commonwealth v. Harrelson , Ky., 14 S .W.3d 541, 546
(2000) ; Commonwealth v. Frodge , Ky., 962 S .W.2d 864, 866 (1998) ; Beckham v.
Bd . of Educ . of Jefferson Co . , Ky., 873 S .W.2d 575, 578 (1994) ; Posey v. Powell,
Ky. App ., 965 S .W .2d 836, 838 (1998) (The Court is "not at liberty to add or
subtract from legislative enactments .").
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