Summary
In Frank, we followed Terhune v. Commonwealth, 907 S.W.2d 779 (Ky.App. 1995) and found that Kentucky courts require strict compliance with the time limits imposed by KRS 439.265(1) for filing a motion seeking shock probation.
Summary of this case from Commonwealth v. MartinOpinion
NO. 2015-CA-001558-MR
06-09-2017
NICHOLAS FRANK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jason A. Hart Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Tami Allen Stetler Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE V., JUDGE
ACTION NO. 14-CR-00412 OPINION
AFFIRMING
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND NICKELL, JUDGES. NICKELL, JUDGE: Nicholas Frank appeals from a Campbell Circuit Court order denying his renewed motion for shock probation on the ground it was untimely filed under KRS 439.265(1). We affirm.
Kentucky Revised Statutes.
On February 4, 2015, Frank entered a plea of guilty to one count of burglary in the second degree and one count of theft by unlawful taking, value $500 or more. He waived a Presentence Investigation Report (PSI) and asked to move forward immediately with sentencing. The trial court sentenced him in accordance with a plea agreement Frank had entered into with the Commonwealth, imposing a sentence of five-years' imprisonment on each charge to run concurrently with each other, but consecutively to any sentence imposed in another case involving Frank in Boone County.
KRS 511.030, A Class C felony.
KRS 514.030 (2) (d), a Class D felony.
On February 9, 2015, the trial court signed a written "Judgment and Sentence on Guilty Plea Waived PSI," memorializing the entry of the plea and the sentencing arrangement. The judgment was entered on February 10, 2015.
On June 23, 2015, Frank moved for shock probation. The Commonwealth responded opposing the motion on multiple grounds. The trial court denied the motion for the reasons set forth in the Commonwealth's response, and also noted there had been no indication Frank had applied for or secured an inpatient drug treatment placement, and releasing him would be inappropriate in light of his drug problem.
On August 5, 2015, Frank filed a renewed motion for shock probation, informing the court he had applied for inpatient drug treatment at the Grateful Life Center. The Commonwealth filed a response alleging Frank's renewed motion was untimely by two days under the provisions of KRS 439.265 and Terhune v. Commonwealth, 907 S.W.2d 779 (Ky. App. 1995). The trial court agreed and denied the renewed motion as untimely. This appeal by Frank followed.
Under KRS 439.265(2), we are not permitted to review a trial court's denial of a motion for shock probation on the merits. We may, however, review whether the trial court correctly determined it lacked jurisdiction to entertain the motion. Terhune, 907 S.W.2d at 782 (quoting Commonwealth ex rel. Hancock v. Melton, 510 S.W.2d 250, 252 (Ky. 1974)).
KRS 439.265(1) authorizes a circuit court to grant probation upon a defendant's motion made not earlier than thirty days nor later than 180 days after one of these two events the defendant has been: "incarcerated in a county jail following his conviction and sentencing pending delivery to the institution to which he has been sentenced," or (2) "delivered to the keeper of the institution to which he has been sentenced[.]"
"Kentucky courts require strict compliance with the time limits imposed by KRS 439.265(1) for filing a motion for shock probation. . . . The plain and unambiguous language of KRS 439.265(1) expresses that the operation of the time limits for filing a motion for shock probation is based on the date when a defendant is delivered into the hands of his jailer, not when he begins to serve the particular sentence for which he was convicted." Terhune, 907 S.W.2d at 782.
It is undisputed Frank filed his renewed motion for shock probation on August 5, 2015, more than 180 days after February 4, 2015, the day on which he was convicted, sentenced, and sent to the county jail pending delivery to the institution where he would serve his sentence.
Frank nonetheless argues calculating the limitations period from the date an individual is "delivered into the hands of his jailer" is contrary to other case law regarding when that individual is "sentenced." He contends an individual is "sentenced" when a final judgment is entered, which in his case would place the filing of the renewed motion within the 180-day limitations period. He relies on Commonwealth v. Carneal, 274 S.W.3d 420 (Ky. 2008), an opinion addressing in part the timeliness of an appellant's post-conviction motions. The Supreme Court of Kentucky held the limitations period begins running from the date of final judgment, not the date of the appellant's "18-year-old hearing", held pursuant to KRS 640.030(2), because all issues relating to his guilt and sentence were fully adjudicated in the earlier proceeding. Carneal, 274 S.W.3d at 427. The Court stated "[a] final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02." CR 54.01. "Final judgment in a criminal case means sentence. The sentence is the judgment." Burton v. Stewart, 549 U.S. 147, 156, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937)). The circuit court was consequently powerless to alter the sentence at the 18-year-old hearing, which is "simply a 'second look' at the manner in which the youthful offender is serving his sentence and provides the trial court the opportunity to consider alternative methods of fulfilling the sentence, other than simply transferring the youthful offender to adult corrections." Id.
Shorthand for a hearing held when a youthful offender turns eighteen at which the circuit court determines whether he will be returned to juvenile custody to complete treatment until final discharge, probated, conditionally discharged, or transferred to an adult corrections facility. Carneal, 274 S.W.3d at 427.
Kentucky Rules of Civil Procedure. --------
While we recognize the entry of a final judgment triggers numerous limitations periods, as in Carneal, we are simply not at liberty to disregard the plain language of KRS 439.265(1). The principle of strict compliance was recently affirmed in an opinion holding that since we have "required strict compliance with the time limits set forth in KRS 439.265(1) for offenders filing motions for shock probation, we must also require that the courts strictly comply with the time limits set forth in KRS 439.265(2) ." Commonwealth v. Settles, 488 S.W.3d 626, 629-30 (Ky. App. 2016). Thus, trial courts are strictly subject to the time constraints of KRS 439.265.
Frank contends public policy favors calculating the limitations period for filing for shock probation motions from the date final judgment is entered, arguing this approach would allegedly provide more time for defendants like himself to arrange inpatient drug treatment. This public policy argument is not compelling enough to cause us to disregard the unambiguous statutory directive of KRS 439.265(1).
For the foregoing reasons, the order of the Campbell Circuit Court denying shock probation is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Jason A. Hart
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky