Opinion
NO. 2019-CA-000518-MR
02-14-2020
Corbin STARKS, Appellant v. COMMONWEALTH of Kentucky, Appellee
BRIEFS FOR APPELLANT: Christopher B. Thurman, Louisville, Kentucky. BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, James P. Judge, Assistant Attorney General, Frankfort, Kentucky.
BRIEFS FOR APPELLANT: Christopher B. Thurman, Louisville, Kentucky.
BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, James P. Judge, Assistant Attorney General, Frankfort, Kentucky.
BEFORE: DIXON AND KRAMER, JUDGES; BUCKINGHAM, SPECIAL JUDGE.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
OPINION
KRAMER, JUDGE: Corbin Starks appeals from an order entered by the Jefferson Circuit Court on March 1, 2019, revoking his probation. After careful review, we affirm in part, vacate in part, and remand for proceedings not inconsistent with this opinion.
On April 21, 2016, Starks entered a guilty plea in Jefferson Circuit Court to two counts of escape, second degree, and three counts of theft by unlawful taking, over $500, but less than $10,000. The Commonwealth recommended a sentence of one year on each count to be served consecutively for a total of five years’ imprisonment. Relevant to the disposition of this appeal is the sentence imposed at a hearing on June 2, 2016, wherein the Commonwealth argued against probation, pointing to Starks’ extensive criminal history in Indiana and the two escape convictions in the instant action. The circuit court sentenced Starks to a total of five years’ incarceration pursuant to the plea agreement and probated Starks’ sentence for five years.
The Division of Probation and Parole entered its first violation of supervision report for Starks in February 2017, and another in March 2017. The circuit court did not revoke his probation, but instead entered two separate orders modifying Starks’ probation. A third violation of supervision report was entered on August 3, 2017. The report alleged, in relevant part, that Starks had been arrested on July 20, 2017, in Clark County, Indiana. Starks did not have permission to be in Indiana from his probation officer. The Jefferson Circuit Court issued a warrant for Starks’ arrest on September 1, 2017. The Commonwealth motioned the circuit court to revoke Starks’ probation on September 13, 2017. However, Starks remained incarcerated in Indiana and on June 8, 2018, was convicted of three felonies resulting from his July 20, 2017 arrest, namely, possession of methamphetamine, unlawful possession of a syringe, and forgery. A fourth violation report was entered on August 22, 2018, which indicated that Starks was being held in Floyd County, Indiana, on new charges.
Starks appeared for his probation revocation hearing in the Jefferson Circuit Court on February 21, 2019. Starks argued that, if the circuit court revoked his probation, it was required to run his sentence concurrently to his Indiana convictions pursuant to KRS 533.040(3) because the revocation would not take place within ninety days of the grounds for revocation coming to the attention of the Commonwealth and/or within ninety days of the expiration of his Indiana sentence. The Commonwealth argued it was impossible to have had a revocation hearing within ninety days because Starks was incarcerated in another state but added that the Commonwealth took timely and necessary steps to revoke his probation beginning in September 2017 (i.e. , prior to the expiration of the ninety-day limit imposed by KRS 533.040(3) ). The circuit court revoked Starks’ probation and ordered his sentence to be served consecutively to the Indiana convictions. The circuit court did not ultimately rely on KRS 533.040(3) in its decision to run the sentences consecutively. Rather, the order entered by the circuit court states, in relevant part, "Escape—consecutive to other sentences." This appeal followed.
When asked by his counsel how he arrived in Louisville that day, Starks responded "Floyd County bond." However, he also stated that he had no other charges pending at that time. Regardless, it is undisputed that Starks had been incarcerated in either Clark or Floyd County, Indiana, from July 2017 until February 2019.
Kentucky Revised Statute.
Starks makes several arguments on appeal. His first argument is that the circuit court erred pursuant to KRS 533.040(3) when it ordered his sentence to run consecutively to the Indiana convictions because his probation was not revoked within ninety days as mandated by the statute. His second argument is essentially that the circuit court erred because it increased a fixed sentence at probation revocation when it ordered Starks’ sentence to run consecutively to his Indiana convictions. Finally, Starks argues that the circuit court abused its discretion when it failed to order a sanction as opposed to revocation. He also makes other arguments within these larger frameworks that are unpreserved. Starks asks that any unpreserved issues be subject to palpable error review pursuant to Kentucky Rule of Criminal Procedure (RCr) 10.26. However, because we are compelled by the law to conclude that the circuit court erred when ordering Starks’ sentence to run consecutively to his Indiana convictions pursuant to KRS 532.110(3), we need not address most of Starks’ arguments.
We note that in contravention of Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(v), Starks has only one preservation statement at the beginning of each of his primary arguments. It is clear from reviewing the record that the plethora of arguments presented by Starks on appeal were not made to the circuit court.
Under RCr 10.26, "an unpreserved error may be noticed on appeal only if the error is palpable and affects the substantial rights of a party, and even then relief is appropriate only upon a determination that manifest injustice has resulted from the error." Commonwealth v. Jones , 283 S.W.3d 665, 668 (Ky. 2009) (internal quotation marks omitted).
Regarding Starks’ first argument, we note that the Commonwealth concedes that KRS 533.040(3) mandates Starks’ sentences run concurrently. However, both parties miss the mark in their briefs to this Court because the circuit court's reasoning, as contained in the order revoking his probation, was unrelated to KRS 533.040(3) ; rather, it was based on the escape charges. Nevertheless, we briefly address the issue due to the ongoing confusion by both Starks and the Commonwealth.
KRS 533.040(3) reads:
A sentence of probation or conditional discharge shall run concurrently with any federal or state jail, prison, or parole term for another offense to which the defendant is or becomes subject during the period, unless the sentence of probation or conditional discharge is revoked. The revocation shall take place prior to parole under or expiration of the sentence of imprisonment or within ninety (90) days after the grounds for revocation come to the attention of the Department of Corrections, whichever occurs first.
We agree with the Commonwealth that Commonwealth v. Love , 334 S.W.3d 92 (Ky. 2011), establishes a bright line rule regarding KRS 533.040(3). Briefly, in Love , the defendant (Love) was convicted in 2004 for various offenses and sentenced to six and one-half years’ imprisonment, probated for five years. Love committed a federal felony offense while on probation and was subsequently convicted in 2006, and incarcerated in federal prison. Our highest court held that, even though the Commonwealth lodged a detainer against Love within ninety days of his federal conviction, because his probation was not actually revoked until 2008, under KRS 533.040(3), his Kentucky sentence could not run consecutively to his federal sentence.
In Love , the Commonwealth argued, to no avail, that it was a practical impossibility to achieve probation revocation within ninety days when a defendant is in federal custody, and that initiation of revocation proceedings by the Commonwealth was sufficient under the statute. The Commonwealth made a similar argument to the circuit court in the instant action, the only difference being that Starks was in custody in another state. Even though the Kentucky Supreme Court noted that it "under[stood] fully the Commonwealth's argument that it is a practical impossibility to achieve probation revocation of an individual held in federal custody within ninety days," it ultimately reasoned that "the restrictive ninety-day window is a public policy choice made by the General Assembly. We may only interpret KRS 533.040(3), but we may not rewrite it.... [I]t is up to the General Assembly to make a change." Love , 334 S.W.3d at 97 (internal quotation marks and footnotes omitted).
Although both parties argued KRS 533.040(3) extensively at the revocation hearing and again before this Court, we decline to address the matter further because, despite what was argued at the hearing, the circuit court did not run Starks’ sentence consecutively to his Indiana sentence pursuant to KRS 533.040(3). A trial court speaks only through its written orders and, here, no reference was made to the statute. See Allen v. Walter , 534 S.W.2d 453, 455 (Ky. 1976). KRS 533.040(3) is inapplicable to the facts before us. Rather, the circuit court ran the sentences consecutively because Starks was convicted of escape.
The Commonwealth argues, very briefly, that the circuit court could run Starks’ sentence consecutively with his Floyd County, Indiana, sentence under KRS 533.040(3), stating only that "[t]he trial court still retained discretion to order the revoked sentence run consecutive to the Floyd County sentence." However, the record before us contains no evidence regarding the Floyd County conviction. We note that, at the revocation hearing, the Commonwealth stated the charges from Floyd County, as contained in the violation report dated August 22, 2018, occurred prior to Starks being placed on probation in Kentucky. For that reason, the Commonwealth chose to proceed with revocation based only on the violation report dated August 3, 2017. Based on the record before us, it is unknown to this Court whether the time frame for any Floyd County, Indiana, conviction and the probation revocation in Kentucky is such that the convictions could run consecutively pursuant to KRS 533.040(3).
Regarding Starks’ second argument, we agree with him to the extent that KRS 532.110(3) does not allow for Starks’ Kentucky sentence for escape to run consecutively to his Indiana sentence under the particular facts of this case.
We look to Wilson v. Commonwealth , 78 S.W.3d 137 (Ky. App. 2001), for clarification. In Wilson , the defendant escaped from prison while serving a seven-year sentence for various felony convictions from Breckinridge Circuit Court. He was subsequently convicted of escape, second degree, in the Fayette Circuit Court. His sentence for the escape conviction was probated, and the circuit court ordered it to run consecutively with any prior felony sentence he was serving (i.e. , that of the Breckinridge Circuit Court). When the defendant's probation was later revoked, the Fayette Circuit Court again ordered the sentence to run consecutively to his prior felony sentence from Breckinridge Circuit Court. The defendant argued that KRS 533.040(3) prevented the circuit court from running the sentences consecutively.
On appeal, this Court looked to KRS 532.110(3) to address concurrent and consecutive terms of imprisonment for sentences involving escape convictions. The statutory provision states:
The relevant statutory provision at the time Wilson was rendered was KRS 532.110(4).
Notwithstanding any provision in this section to the contrary, if a person is convicted of an offense that is committed while he is imprisoned in a penal or reformatory institution, during an escape from imprisonment, or while he awaits imprisonment, the sentence imposed for that offense may be added to the portion of the term which remained unserved at the time of the commission of the offense. The sentence imposed upon any person convicted of an escape or attempted escape offense shall run consecutively with any other sentence which the defendant must serve.
KRS 532.110(3) (emphasis added).
The instant action is distinguishable from Wilson. Starks’ convictions in Jefferson County cannot run consecutively to the Indiana convictions. The plain language of KRS 532.110(3) states "[t ]he sentence imposed ," i.e. , Starks’ June 2, 2016 sentence , shall run consecutively with any other sentence Starks must serve. Thus, Starks’ sentence was imposed in June 2016, not when his probation was revoked in March 2019. A probation revocation order is not a judgment imposing a sentence. Jackson v. Commonwealth , 319 S.W.3d 343, 345 (Ky. 2010). At the time Starks’ sentence was imposed , the Indiana convictions that are the subject of this appeal did not exist.
See also Commonwealth v. Tiryung , 709 S.W.2d 454, 456 (Ky. 1986) : "[KRS Chapter 532] requires imposition of a sentence of imprisonment or fine upon conviction, as appropriate for the offense committed, which must be rendered without unreasonable delay and before sentencing to probation. This eliminates the possibility that the convicted defendant will receive a greater punishment for the offense committed than is deserved because of subsequent conduct violating parole."
Further, this Court has held that
KRS 532.110(4) [ ] creates a specific exception to KRS 533.040(3) where the two come into conflict and [ ] the more specific statutory language pertaining to escape must pre-empt the more general statute dealing with the 90-day period in which to bring a probation revocation hearing. The court did not err in ordering Wilson's sentence for escape to run consecutively as to his previous sentence.
Now KRS 532.110(3).
Wilson , 78 S.W.3d at 139 (emphasis added).
Based on the record before us, it is unclear whether Starks had any prior sentence(s) he was serving at the time his sentence was imposed. However, it is clear from the record before us that the Indiana convictions referenced at the revocation hearing did not exist at the time Starks’ sentence was imposed (i.e. , in June 2016). Accordingly, we vacate the Jefferson Circuit Court's order to the extent it ordered Starks’ sentence must run consecutively to the Indiana sentence because he was convicted of escape. Finally, Starks argues that the circuit court erred in revoking his probation as opposed to imposing a sanction. We disagree.
"The appellate standard of review of a decision to revoke a defendant's probation is whether the trial court abused its discretion." Miller v. Commonwealth , 329 S.W.3d 358, 359-60 (Ky. App. 2010) (citation omitted). "[T]he Commonwealth need only prove by a preponderance of the evidence that a probationer has violated the terms of probation." Commonwealth v. Lopez , 292 S.W.3d 878, 881 (Ky. 2009) (footnote omitted).
Starks stipulated that he was charged and subsequently convicted of felonies in Indiana while on probation from the Jefferson Circuit Court. Although Starks testified that he was in Indiana to see the birth of his son and was on his way to turn himself in to a drug treatment program when he was arrested, he did not have permission to be in Indiana from his probation officer. Moreover, the circuit court had already modified Starks’ probation twice for violations of conditions prior to revocation. The circuit court found that Starks
The first condition of Starks’ probation, as stated in the order entered June 6, 2016, is that Starks shall "remain on good behavior and refrain from further violation of the law in any respect."
The circuit court entered orders modifying Starks’ probation on February 16, 2017, and April 12, 2017.
poses a significant risk to the community at large, and that [he] cannot be managed in the community. The Court has considered other sanctions in light of the Defendant's assessed risk/needs level, adjustment on supervision, the severity of the violations, Defendant's previous criminal record, the number and severity of previous supervision violations, and whether graduated sanctions were imposed for previous violations. No sanction short of revocation is appropriate in this case.
We discern no abuse of discretion on the part of the circuit court for its decision to revoke Starks’ probation.
Accordingly, we AFFIRM the Jefferson Circuit Court's decision to revoke Starks’ probation, but VACATE insofar as the circuit court ordered Starks’ sentence to run consecutively to his Indiana sentence at the time of probation revocation. We REMAND for further proceedings not inconsistent with this opinion.
ALL CONCUR.