Opinion
NO. 2019-CA-000254-MR
04-17-2020
BRADLEY HEMBREE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Bradley Hembree, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Daniel J. Cameron Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NOS. 11-CR-000659 AND 11-CR-002188 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES. DIXON, JUDGE: Bradley Hembree, pro se, appeals the order denying his request for relief pursuant to CR 60.02 entered on August 21, 2018, by the Jefferson Circuit Court. Following review of the record, briefs, and law, we affirm.
Kentucky Rules of Civil Procedure.
In 2011, Hembree was charged with two counts of theft by deception over $10,000, and one count each of theft by deception over $500 but less than $10,000, and theft by deception under $500 in Jefferson Circuit Court. On January 24, 2012, Hembree entered a combined guilty plea and was sentenced to an aggregate sentence of ten years. On May 10, 2012, the trial court entered an order probating Hembree's sentence for five years.
Kentucky Revised Statutes ("KRS") 514.040, a Class C felony.
KRS 514.040, a Class D felony.
KRS 514.040, a Class A misdemeanor.
On April 3, 2013, the Commonwealth moved the trial court to revoke Hembree's probation, attaching a special supervision report alleging Hembree had violated the terms of his probation, including incurring a new felony arrest in another county. On September 4, 2014, the Commonwealth supplemented its motion to revoke with information concerning new arrests, including a felony arrest, and new felony charges in other counties. Hembree stipulated to those probation violations, and his probation was revoked on January 11, 2016.
On March 16, 2018, Hembree filed a motion pursuant to CR 60.02 arguing two of his Shelby County felony sentences—for crimes he committed while on probation out of Jefferson County—should run concurrently with his revoked Jefferson County sentences. Hembree's motion was denied, and this appeal followed.
Denial of a CR 60.02 motion is reviewed for abuse of discretion. St. Clair v. Commonwealth, 451 S.W.3d 597, 617 (Ky. 2014). The test is "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
Hembree raises two issues on appeal. We will address each, in turn.
First, Hembree argues that since the trial court was silent on whether his sentences should run consecutively or concurrently with his Shelby County sentences, under KRS 532.110(1)(c), the terms must run concurrently. However, this argument ignores KRS 533.060(2), which provides:
KRS 532.110(1)(c) provides:
(1) When multiple sentences of imprisonment are imposed on a defendant for more than one (1) crime, including a crime for which a previous sentence of probation or conditional discharge has been revoked, 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 be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed. In no event shall the aggregate of consecutive indeterminate terms exceed seventy (70) years . . . .
When a person has been convicted of a felony and is committed to a correctional detention facility and released on parole or has been released by the court on probation, shock probation, or conditional discharge, and is convicted or enters a plea of guilty to a felony committed while on parole, probation, shock probation, or conditional discharge, the person shall not be eligible for probation, shock probation, or conditional discharge and the period of confinement for that felony shall not run concurrently with any other sentence.(Emphasis added.) The legislative intent expressed by this statute calls for stricter sentencing for offenses committed while released on probation. Rose v. Commonwealth, 738 S.W.2d 835, 837 (Ky. App. 1987). Moreover, in its discussion concerning an apparent conflict between these sentencing statutes, the Court in Commonwealth v. Hunt left no doubt about the effect of sentencing of criminal offenses committed while on probation:
These two statutes are impossible to construe "in connection and in harmony with" each other and cannot be reconciled. Thus a conflict exists, and the later statute controls. KRS 532.110(1) was enacted by the legislature in 1974, with an effective date of January 1, 1975. KRS 533.060(2) was enacted by the legislature in 1976, with an effective date of June 19, 1976. KRS 533.060(2) is controlling in this situation and the court is prohibited thereby from running the sentence of the first felony concurrently with the second sentence.619 S.W.2d 733, 734 (Ky. App. 1981) (emphasis added). Consequently, as a simple matter of law, the sentences for the offenses Hembree committed in Shelby County while on probation out of Jefferson County must run consecutively. The trial court's failure to specifically mention this in its order revoking Hembree's probation does not in any way alter the application of KRS 533.060 to Hembree's sentences. Therefore, the trial court did not abuse its discretion in denying Hembree's CR 60.02 motion requesting his sentences run concurrently.
Second, Hembree argues his Jefferson County and Shelby County sentences must be ordered to run concurrently to meet the ten-year cap on sentences for Class C felonies in KRS 532.110(1)(c). However, this issue was never raised to the trial court. "The Court of Appeals is without authority to review issues not raised in or decided by the trial court." Regional Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989) (citations omitted).
Therefore, and for the forgoing reasons, the order entered by the Jefferson Circuit Court is AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: Bradley Hembree, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Daniel J. Cameron
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky