Opinion
NO. 2011-CA-002168-MR
05-24-2013
JAMES MULLINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kathleen K. Schmidt Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeanne Anderson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 11-CR-00180
OPINION
VACATING IN PART
AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; LAMBERT AND STUMBO, JUDGES. STUMBO, JUDGE: James Mullins appeals from a Rowan Circuit Court judgment imposing a sentence of three years for receiving stolen property valued between $500 and $10,000, enhanced to five years for being a persistent felony offender in the second degree (PFO 2).
In September 2009, Mullins entered a plea of guilty to first-degree possession of a controlled substance. He received a sentence of four years, but was placed on diversion for five years.
While he was on diversion, he was indicted for receiving stolen property valued between $500 and $10,000. He was also charged with PFO 2, based on the 2009 conviction for possession.
Mullins entered a plea of guilty to the charges conditioned on his right to appeal whether a case that was currently diverted could be used as the basis for a PFO 2 charge on a new indictment. His appeal was held in abeyance until the Kentucky Supreme Court rendered an opinion in which it held that "a conviction for which a defendant is currently on diversion cannot be used to indict that defendant as a PFO 2 when he commits a subsequent felony offense." Commonwealth v. Derringer, 386 S.W.3d 123, 132 (Ky. 2012). Under these circumstances, the Commonwealth has conceded that Mullins's indictment for PFO 2 was improper, and he is entitled to relief.
Accordingly, we reverse the conviction and sentence of PFO 2 and remand the case for further proceedings in accordance with this opinion and with Derringer.
ALL CONCUR. BRIEF FOR APPELLANT: Kathleen K. Schmidt
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jeanne Anderson
Assistant Attorney General
Frankfort, Kentucky