Opinion
NO. 2018-CA-001421-MR
05-22-2020
MICHAEL THORNTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Julia K. Pearson Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Jeanne Anderson Special Assistant Attorney General Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 12-CR-003877 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES. TAYLOR, JUDGE: Michael Thornton brings this appeal from an August 8, 2018, order of the Jefferson Circuit Court revoking Thornton's probation and an August 14, 2018 order running his sentences of imprisonment consecutively for a total of thirty years. We affirm.
In Action No. 12-CR-003877, Thornton pleaded guilty to numerous felonies and was sentenced to ten-years' imprisonment probated for five years on October 9, 2013. Subsequently, on March 28, 2014, the circuit court revoked Thornton's probation, and he was incarcerated. By order entered September 25, 2014, the circuit court then granted shock probation and probated Thornton's sentence of imprisonment for five years.
Thornton was again indicted (Action No. 15-CR-001981) upon multiple felonies on July 23, 2015. A jury trial ensued, and Thornton was found guilty of numerous criminal offenses. By judgment entered July 16, 2018, the circuit court sentenced Thornton to a total of twenty-years' imprisonment.
Because of Thornton's criminal offenses in Action No. 15-CR-001981, the circuit court revoked Thornton's probation in Action No. 12-CR-003877 on August 8, 2018. And, by order entered August 14, 2018, the circuit court ordered Thornton's ten-year sentence in Action No. 12-CR-003877 to run consecutively with his twenty-year sentence in Action No. 15-CR-001981 pursuant to Kentucky Revised Statutes (KRS) 533.060(2). This appeal follows.
Thornton contends that the circuit court erred by ordering his ten-year sentence of imprisonment in Action No. 12-CR-003877 to run consecutively with his twenty-year sentence in Action No. 15-CR-001981. Thornton believes that the circuit court misapplied KRS 533.060(2) and relies upon Blackburn v. Commonwealth, 394 S.W.3d 395 (Ky. 2011) as support. In reliance on Blackburn, 394 S.W.3d at 398, Thornton argues that the maximum length of his sentence of imprisonment cannot "exceed . . . the longest extended term [of imprisonment] which would be authorized by KRS 532.080 for the highest class of crime" for which a sentence was imposed under KRS 532.110(1). Thornton's Brief at 7. Thornton maintains that his maximum sentence of imprisonment should be twenty years per KRS 532.110(1), and the circuit court committed error by sentencing him to a total of thirty-years' imprisonment. We disagree.
In Blackburn, 394 S.W.3d at 396, two separate indictments each charged appellant with first-degree trafficking in a controlled substance; appellant was also charged with being a persistent felony offender. Appellant was found guilty of all charges, and the circuit court ordered the sentences to run consecutively for a total sentence of forty-years' imprisonment. The Supreme Court held that the circuit court erroneously ordered the sentences to run consecutively with each other as the forty-year sentence violated the statutory maximum as set forth in KRS 532.110(1). In so holding, the Supreme Court reasoned "[b]ecause the maximum length authorized by KRS 532.080 . . . is twenty years, the aggregate of Appellant's consecutive sentences (for the multiple subsequent offenses) could not exceed that amount." Blackburn, 394 S.W.3d at 401 (footnote omitted). The Supreme Court, however, noted "the court may not run these subsequent convictions concurrent with the paroled offense." Id. at 401 (citation omitted).
Unlike the facts in Blackburn, 394 S.W.3d 395, Thornton's sentence of imprisonment for the probated offense (Action No. 12-CR-003877) was ordered to run consecutively with his sentence of imprisonment for subsequent offenses (Action No. 15-CR-001981). The Blackburn Court specifically observed "that the court may not run these subsequent convictions concurrent with the paroled offense." Id. at 401 (citation omitted).
Statutory law mandates that Thornton's sentences of imprisonment in Action Nos. 12-CR-003877 and 15-CR-001981 run consecutively. KRS 533.060(2) controls, and it reads:
(2) 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.Consequently, we are of the opinion that the circuit court properly ordered Thornton's sentences of imprisonment in Action Nos. 12-CR-003877 and 15-CR-001981 to run consecutively per KRS 533.060(2).
We view any remaining contentions of error as moot or without merit.
For the foregoing reasons, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Julia K. Pearson
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Jeanne Anderson
Special Assistant Attorney General
Louisville, Kentucky