AGGREGATING SENTENCES
Multiple misdemeanor convictions cannot be aggregated for more than one year. KRS 532.110(1)(b). The exception is misdemeanors committed while on misdemeanor probation, which can run either concurrent or consecutive. KRS 533.040(3), Walker v. Com., 10 S.W.3d 492 (Ky.App.1999).
Multiple simultaneous convictions for Class C and D felonies cannot be aggregated for more than 20 years. KRS 532.110(1)(c). This does not apply to convictions for new felonies committed while already on felony probation or parole. In those cases, the consecutive sentences can exceed 20 years. Devore v. Com., 662 S.W.2d 829 (Ky.1984).
The limit of simultaneous aggregated consecutive felonies of any class is 70 years. KRS 532.110(1)(c).
No sentence of a term years, received at the same time as a life sentence, can run consecutively to that life sentence. Bedell v. Com., 870 S.W.2d 779 (Ky.1993). This does not apply when the defendant was already on probation or parole at the time of the offense. See Stewart v. Com., 153 S.W.3d 789 (Ky.2005), in which the defendant had to serve-out a prior sentence before he could start his life sentence.
CONSECUTIVE VS. CONCURRENT
A later-imposed concurrent sentence is deemed to have commenced at the beginning of the original sentence. Lienhart v. Com., 953 S.W.2d 70 (Ky.1997), KRS 197.035(2).
Generally, a definite (misdemeanor) term of imprisonment must run concurrently with an indefinite (felony) term of imprisonment, and serving-out the indefinite term will satisfy both sentences. KRS 532.110(1)(a). This applies even when the sentences are imposed by different courts. Powell v. Payton, 544 S.W.2d 1 (Ky.1976).
However, although the general rule is that misdemeanor sentences must run concurrent to felony sentences, and that consecutive misdemeanor sentences cannot exceed one year, sentences for new felonies or misdemeanors committed while on probation can run consecutively to revoked felony or misdemeanor sentences.
Generally, when a new offense is committed while a defendant is still on probation:
A sentence for a felony committed while on felony probation must run consecutively to the probated felony sentence. KRS 533.060(2), Brewer v. Com., 922 S.W.2d 380 (Ky.1996). Although KRS 533.040(3) seems to require that the probation first be revoked before it can run consecutively, KRS 533.060(2) controls over KRS 533.040(3), so the sentences have to run consecutively regardless of whether the probation has been revoked.
Furthermore, although KRS 532.110(2) allows sentences to be run concurrently if the judgment does not specify how they are to run, in the case of felonies committed while on felony probation, the Department of Corrections will run those sentences consecutively, whether the judgment is silent on the matter or not. Riley v. Parke, 740 S.W.2d 934 (Ky.1987).
A sentence for a felony committed while on misdemeanor probation can run consecutively to the probated misdemeanor sentence, but does not have to. KRS 533.040(3), Warren v. Com., 981 S.W.2d 134 (Ky.App.1998). KRS 532.110(1) requires the misdemeanor time to run concurrently with the felony time. On the other hand, KRS 533.040(3) says that a revoked sentence of probation can be run consecutively. Since the statutes conflict, the court can do either.
A sentence for a misdemeanor committed while on felony probation can run consecutively to the probated felony sentence, but does not have to. KRS 533.040(3), Snow v. Com., 927 S.W.2d 841 (Ky.App.1996). This is the same conflict between the same two statutes as above, with the same result: the court can run the sentences either concurrently or consecutively.
A sentence for a misdemeanor committed while on misdemeanor probation can run consecutively to the probated misdemeanor sentence, but does not have to. KRS 533.040(3), Walker v. Com., 10 S.W.3d 492 (Ky.App.1999). Although KRS 532.110(1)(b) prohibits aggregated misdemeanors to exceed 1 year, KRS 533.040(3) allows the sentences to be run consecutively when, and only if, the probated sentence has already been revoked.
KRS 533.040(3) also requires that, when a defendant is serving a sentence and has an outstanding probated sentence which has not yet been revoked, that the probated sentence has to run concurrently to the time the defendant is serving unless the probated sentence is revoked, either (1) prior to the defendant’s parole or (2) within 90 days that the grounds for revocation come to the attention of the Department of Corrections, which ever comes first. This statute was designed to prohibit prosecutors from waiting till a defendant serves out, and then revoking him on the probation and sending him right back to prison. See the commentary. Kiser v. Com., 829 S.W.2d 432 (Ky.App.1992).
SPECIAL SITUATIONS IN WHICH SENTENCES MUST RUN CONSECUTIVELY
Sex Crimes - Sentences for two or more sex crimes involving two or more victims must run consecutively. KRS 110(1)(d). The exact meaning and application of this statute has not yet been litigated.
Ammunition - When sentenced for the use of armor-piercing or flanged ammunition and sentenced for committing the underlying crime, those sentences must run consecutively. KRS 527.080(3).
Escape – Sentences imposed for the crime of escape must run consecutively to any other sentence the defendant must serve, even if the Commonwealth waits more than 90 days to revoke the prior probations. KRS 532110(3) controls over KRS 533.040(3). Wilson v. Com., 78 S.W.3d 137 (Ky.App.2001).
Awaiting Trial – When a defendant has been held to answer charges in District Court, has been released on bond, and commits a new offense after being indicted by the grand jury, the defendant is “awaiting trial” for the purposes of KRS 533.060(3) even if he has not yet been formally arraigned in Circuit Court and even if he does not know he was indicted. The sentences had to be run consecutively. Moore v. Com., 990 S.W.2d 618 (Ky.1999).
When a defendant has pled guilty and commits a new offense while awaiting sentencing, he is “awaiting trial” for the purposes of KRS 533.060(3) even if no trial was scheduled. Cosby v. Com., 147 S.W.3d 56 (Ky.2004).
KRS 533.060(3) controls over KRS 532.110(1), so that if a felony is committed while awaiting trial for even just a misdemeanor, the two sentences have to run consecutively. Handley v. Com., 653 S.W.2d 165 (Ky.App.1983).
A person shock-probated on a felony sentence may still be required to serve a concurrent misdemeanor sentence which was not also shock-probated. Romans v. Brooks, 637 S.W.2d 662 (Ky.App.1982).
PROBATION ELIGIBILITY
If a defendant is statutorily eligible for probation, KRS 533.010(2) requires that the court “shall consider” probation, and that probation “shall be granted” unless imprisonment is necessary for the protection of the public. A blanket refusal to consider probation is reversible sentencing error. Patterson v. Com., 555 S.W.2d (Ky.App.1977).
KRS 533.060(2) generally prohibits probation for felonies committed while on felony probation. However, KRS 533.030(6) explicitly says that that prohibition does not apply to Class D felonies. Therefore, even if the sentence for the new offense must run consecutively to the sentence for the old one, the sentence for the new offense can still be probated if it is a Class D felony. Adams v. Com., 46 S.W.3d 572 (Ky.App.2000).
Note also that KRS 533.030(6) also allows probation for a number of Class D Felonies for which probation is prohibited in KRS 532.045. (But does not cover those charges which cannot be probated under KRS 439.265 or 439.3401.)
The prohibition against probating sentences for crimes involving the use of a projectile weapon requires the actual “use” of the weapon. Mere possession of it at the time of the crime is not enough. Haymon v. Com., 657 S.W.2d 239 (Ky.1983).
A defendant convicted of PFO based on prior convictions of only Class D felonies, is eligible for probation if none of the crimes involved violence or a sex crime. KRS 532.080(7).
INELIGIBLE FOR PROBATION
Violent Offenders - Violent offenders as defined by KRS 439.3401 (see also KRS 532.047 and 533.010(2)), unless it is ordered as allowed by 439.3401, which denies probation until 85% of the sentence is carried out. No shock probation at all. (KRS 439.265)
Sex Offenders - Anyone convicted of Rape 2nd degree, Sodomy 2nd degree, Incest, Unlawful Transaction with a Minor 1st degree (involving sexual activity), Use of a Minor in a Sexual Performance, or attempt to commit these offenses. (KRS 439.265). Note that in 2007 a good number of crimes involving human trafficking were also added to the violent offender statute. Inasmuch as some of those crimes were Class C and D felonies, their status as “violent offenses” is unclear, as well as the appropriate parole eligibility.
Anyone convicted of Rape 2nd degree, Sodomy 2nd degree, Promoting Prostitution 1st, 2nd, or 3rd degree, Permitting Prostitution, Incest, Use of a Minor in a Sexual Performance, Promoting a Sexual Performance by a Minor, Using Minors to Distribute Material Portraying a Sexual Performance by a Minor, or attempt to commit these offenses
AND WHO EITHER
uses force, causes bodily injury, befriends the child as a stranger solely for purposes of committing one of these offenses, uses a dangerous instrument or deadly weapon, has a prior conviction for one of these offenses, kidnapped the minor for the purpose of committing one of these offenses, committed one of these offenses on more than one minor at the same time, engaged in substantial sexual conduct with a minor under 14 while committing one of these offenses, or occupied a position of special trust and engaged in substantial sexual conduct while committing one of these offenses. (KRS 532.045, but see KRS 533.030(6).)
PFO’s - Anyone convicted of PFO 2nd, unless all of the convictions are for Class D felonies and none of them involved acts of violence. (KRS 532.080) Anyone convicted of PFO 1st, unless all of the convictions are for Class D felonies and none of them involved acts of violence or the commission of a sex crime. (KRS 532.080)
Projectile Weapon - Anyone convicted of a Class A, B, or C felony which involved use of a projectile weapon. (KRS 533.060), Haymon v. Com., 657 S.W.2d 239 (Ky.1983).
New Offense while on Parole or Probation – KRS 533.060(2), but see KRS 533.030(6). See the discussion above.
Armed and Wearing Body Armor - Anyone guilty of any felony offense under KRS 218A, 507, 508, 509, 511, or 513, or guilty of possession of a destructive device, unauthorized use of a motor vehicle, riot 1st degree or 2nd, possession of a firearm by convicted felon, unlawful possession of a weapon on school property, possession of a handgun by a minor, or theft of a motor vehicle under KRS 514.030 AND wearing body armor and armed with a deadly weapon. (KRS 533.065)
PROBATION REVOCATION
Generally – When a defendant is probated, he is supposed to be given a written statement explicitly listing the terms and conditions of his probation. KRS 533.030(5). (See the standard probation contract.) Nevertheless, the law presumes that anyone on probation knows that breaking the law may have an effect on his probation. Tiitsman v. Com., 509 S.W.2d 275 (Ky.App.1974).
Due Process – Although there is no constitutional right to probation or parole, a defendant still has a constitutional right to due process in revocation proceedings. This is because the defendant has a liberty interest at stake under the 14th Amendment. The minimum due process requirements of a revocation were first applied to parole revocations in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and extended to probation revocations in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). They are: (1) written notice of the alleged violations, (2) disclosure of the evidence against the defendant, (3) opportunity to be heard in person and to present witnesses and documentary evidence, (4) the right to confront and cross-examine adverse witnesses, (5) a “neutral and detached” hearing body or court, and (6) written findings of fact as to the evidence relied on and the reasons for revocation. These requirements were adopted in Kentucky in Murphy v. Com., 551 S.W.2d 838 (Ky.App.1977).
So, for example:
Requirement (1) was violated in Radson v. Com., 701 S.W.2d 716 (Ky.App.1986), in which the defendant was given notice of one ground of revocation, but was actually revoked on the basis of another ground to which he had not been given notice. See also Baumgardner v. Com., 687 S.W.2d 560 (Ky.App.1985), in which the court ordered a revocation hearing sua sponte after the defendant’s trial and acquittal for receiving stolen property.
Requirements (3) and (4) were violated in U.S. v. Dodson, 25 F.3d 385 (6th Cir.1994), in which the defendant was not allowed to testify in his own behalf or present evidence. The court ruled that, even at revocation hearings, “[i]n order to ensure a constitutionally sufficient opportunity to contest the allegations and provide evidence in mitigation, a defendant must also be afforded as a matter of due process the opportunity to be heard in person and to present witnesses and documentary evidence.” (At 338, emphasis original.)
Requirement (5) was violated in Baumgardner v. Com., 687 S.W.2d 560 (Ky.App.1985), in which the judge who presided over the defendant’s trial and acquittal sua sponte ordered a revocation hearing and presided over that as well.
Requirement (6) was violated in Keith v. Com., 689 S.W.2d 613 (Ky.App.1985), in which the defendant was ordered to admit himself to Eastern State Hospital, but the hospital said he did not need inpatient care and enrolled him in an outpatient program instead. After finding that the defendant “made every reasonable effort to comply with the conditions imposed upon him,” (at 615) the Court of Appeals vacated the revocation and said that “when there is no evidence to support the court’s decision to revoke, the revocation of that probation is totally arbitrary.” (At 625.) See also Baumgardner v. Com., 687 S.W.2d 560 (Ky.App.1985), in which there were no findings of fact, and the only evidence presented at the hearing was that the defendant had been acquitted of the charges for which he was being revoked.
Remember, too, that a court cannot revoke a probated sentence if the defendant did not have an attorney when the sentence was imposed and probated. Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002). See also Stone v. Com., 217 S.W.3d 233 (Ky.2007).
Nevertheless, the case law also reflects the fact that the due process rights of a defendant at a revocation hearing are not equivalent to those of a defendant in a criminal trial. (See, e.g., Robinson v. Com., 86 S.W.3d 54 (Ky.App.2002), for the proposition that a revocation hearing is not a second criminal prosecution.) For instance:
Appointment of Counsel – Appointment of counsel at a revocation hearing should be determined on a case-by-case basis and is not an absolute right, especially “if the grounds for revocation are not in dispute, as in the case of a conviction for a new offense.” Dunson v. Com., 57 S.W.3d 847, 849 (Ky.App.2001), quoting Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Nevertheless, remember that KRS 533.050(2) requires that counsel be appointed.
Standard of Proof – The standard of proof is not beyond a reasonable doubt, but rather preponderance of the evidence. Murphy v. Com., 551 S.W.2d 838 (Ky.App.1977), Radson v. Com., 701 S.W.2d 716 (Ky.App.1986). For this reason, it is not necessary for a defendant to be convicted on a new charge in order to be revoked on an old one. Tiryung v. Com., 717 S.W.2d 503 (Ky.App.1986).
Discovery – RCr 7.24 does not apply to revocation hearings, and the defendant was not entitled to the tests used, the lab standards, and the amount of marijuana found in the defendant’s system. The defendant’s revocation was proper in as much as the defendant had in fact tested positive for marijuana. Robinson v. Com., 86 S.W.3d 54 (Ky.App.2002).
Confrontation – The 6th Amendment right to confront is not absolute in informal procedures such as probation revocations. Affidavits, depositions, documents, and other reliable substitutions for live witnesses are allowable when witnesses are unavailable or great hardship would be involved in producing them. Marshall v. Com., 638 S.W.2d 288 (Ky.App.1982).
Evidence – The rules of evidence do not apply to revocation hearings. KRE 1101(d)(5). Hearsay is admissible. Marshall v. Com., 638 S.W.2d 288 (Ky.App.1982). Illegally seized evidence is admissible. Tiryung v. Com., 717 S.W.2d 503 (Ky.App.1986). Statements made in violation of Miranda are admissible. Childers v. Com., 593 S.W.2d 80 (Ky.App.1980).
PAROLE ELIGIBILITY
The date set by the Department of Corrections as the date of a state prisoner’s parole eligibility is a fixed date. It is not brought closer by any kind of good-time, work-time, or educational achievement credit.
KRS 439.3401(2) says, “Violent offenders may have a greater minimum parole eligibility date than other offenders who receive longer sentences, including a sentence of life imprisonment.” This seems plain enough, but it is not the law. For any sentence over 23 years and 6 months, the parole eligibility is 20 years. No sentence can have a longer parole eligibility than a life sentence. Hughes v. Com., 87 S.W.3d 850 (Ky.2002).
WARNING!! KRS 439.3401(1), which lists the offenses which can qualify a person as a violent offender, includes offenses which are Class C or D felonies, or even misdemeanors. For example, subsection (1)(d) says a person is a violent offender if convicted of or has pled to, “The commission or attempted commission of a felony sexual offense described in KRS Chapter 510.” Sexual Abuse 1st Degree is a Class C or D felony. KRS 510.110. Attempted Sexual Abuse 1st Degree is a Class A Misdemeanor. KRS 506.010(4)(d). Although subsection (4) seems to limit 85% parole eligibility to Class A and B felonies, nevertheless, the Department of Corrections has applied it to ALL felony sexual offenses in the past. DPA Appeals Branch had to do a Declaratory Judgment action. So, have the judge make a finding of parole eligibility at the sentencing hearing and get an agreed order.
CREDIT FOR TIME SERVED
A defendant must be given credit for time served prior to sentencing when the time was served on the charge which resulted in that sentence. KRS 532.120(3). Time served for a charge of which the defendant is acquitted shall be credited toward any sentence on any other charge which was lodged against the defendant while in custody, by warrant or detainer. KRS 532.120(4).
Time spent on home incarceration is credited to time served when the sentence has been imposed and the court has ruled that part of the sentence can be served on home incarceration. KRS 532.210(4), 533.030(6). However, time spent on home incarceration as a condition of pretrial release is not credited toward time served. Buford v. Com., 58 S.W.3d 490 (Ky.App.2003).
SERVING TIME
Kinds of Time – Felony sentences are indeterminate, i.e., they are subject to the kinds of statutory credit described below and, as such, may result in shorter time to serve than the term actually imposed. KRS 532.060. A sentence for a misdemeanor, however, is a definite term. KRS 532.090. In other words, if you get sentenced to six months on a misdemeanor, you serve six months (barring shock probation, etc.).
Placement – Those persons who receive a sentence of five (5) years or less “shall serve that term in a county jail in a county in which the fiscal court has agreed to house state prisoners.” Class C and D felons who receive sentences over five years may also serve their time in a regional detention facility rather than in a state institution. KRS 532.100(4)(a)&(b). State prisoners who cannot be housed in county jails or regional detention facilities must be transferred to a state institution within 45 days of final sentencing. KRS 532.100(7).
Modification of Sentence – When a defendant is sentenced to one year of indeterminate time, the court may convert that sentence to a definite term of one year or less if it believes the felony sentence to be unduly harsh. KRS 532.070(2). This statute only applies to sentences imposed by juries, however, and not to plea bargains. Bailey v. Com., 70 S.W.3d 414 (Ky.2002).
Calculation of - One often hears that a “state year” is 7 months, 21 days, or that it is around 8 months. This is an old wives’ tale. The truth is there is no single answer to what constitutes a state year. It depends entirely on what kind of statutory credit the prisoner receives during each year. There are three kinds of statutory credit:
Statutory Good Time, KRS 197.045(1) – A prisoner can get 10 days of good time per month. This is probably the source of the rumor that a state year is around eight months. People multiply 10 days per month by 12 months and assume that means that 120 days (4 months) will come off the time, leaving only 8 months to serve out of every state year. It does not work that way. In actuality, the time is being taken off the end of the year as the year progresses, so the prisoner never “serves” 12 months.
Good time can be suspended for misconduct. Violent offenders do not get good time. KRS 439.3401(4). Sexual offenders earn good time but do not get it applied to their sentences until completion of the Sexual Offender Treatment Program. KRS 197.045(4).
Meritorious Good Time, KRS 197.045(1) – This is credit for performing duties and work while incarcerated, and is usually handed out liberally. A prisoner can get an extra 5 days of credit per month with this. So, if the prisoner is getting meritorious work time on top of good time, the 9th month of his state year will also fall off of his sentence after 6 months. This would reduce his “state year,” that year, to only 8 months.
Educational Good Time, KRS 197.045(3) – This is the only mandatory credit, and the only credit a violent offender can receive. KRS 439.3401(4). It is awarded upon the completion of a G.E.D. or the earning of a high school diploma, and upon the earning of a 2- and 4-year degree. This is a 60-day credit. So, if it is added to the credit our hypothetical prisoner already has for this year, his “state year” can be as short as 6 months.
See Brenn O. Combs, “Understanding Sentence Calculation and Application,” The Advocate, vol. 25, no. 5, September, 2003, pp. 30-36.
Sex Offenders – If a person convicted of a Class D sex offense receives a sentence of 2 years or more, he must serve that sentence in a state institution. KRS 532.100(4)(a). State prisoners who cannot be housed in county jails or regional detention facilities must be transferred to a state institution within 45 days of final sentencing. KRS 532.100(7).
Be aware that, since KRS 439.340 requires completion of the Sexual Offender Treatment Program before a prisoner is eligible for parole, and since the program takes at least 2 years to complete, if your client receives a sentence of two years he will simply have to serve it all out. Good time will also not be credited until completion of the treatment program. KRS 197.045(4).
