Bench & Bar

JAN 2013

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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In contrast, under Blackburn, John's sentence cannot exceed the statutory cap of a total sentence of 20 years on the multiple trafficking convictions. Now substitute the two trafficking convictions with a defendant who is convicted of 20 or 200 different contemporaneous Class D and/or Class C felonies while on probation or parole. The Blackburn rule likewise caps all of that criminal behavior at 20 years, substantially decreasing the amount of prison time defendants face when committing multiple felonies on probation or parole and impacting the bargaining position of both parties when attempting to work on a plea agreement. Room for Interpretation: Conflicting Sentencing Policy Statutes Both Blackburn and Devore were attempts to reconcile a legal quagmire in Kentucky's sentencing policy caused by two major sentencing statutes that appear to contradict each other regarding the maximum sentence that can be imposed upon a persistent felony offender who commits multiple and contemporaneous Class C and/or Class D felonies while on parole or probation. The statutes in question are KRS § 533.060(2) and the "cap" statute in KRS § 532.110(1). On one hand, KRS § 533.060(2)3 provides: When a person has been convicted of a felony and is...released on parole . . . , and is convicted . . . of . . . a felony committed while on parole or . . . probation, . . . the period of confinement for that felony shall not run concurrently with any other sentence. However, on the other hand, KRS § 532.110(1)(c),4 the "cap" statute, provides: [T]he aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized on KRS § 532.0805 for the highest class of crime for which any of the sentence is imposed. Subsection (6)(b) of KRS § 532.080 applies when a person is found to be a persistent felony offender in the first degree and provides: If the offense . . . is a Class C or Class D felony, a persistent felony in the first degree shall be sentenced to an indeterminate term of imprisonment, the maximum of which shall not be less than ten (10) years nor more than twenty (20) years. The conflict quickly became apparent as courts struggled with how to apply the contradictory statutory directives. Hunt and Devore When initially confronted with the conflicting statutes in 1981, the Kentucky Supreme Court in Hunt v. Commonwealth found that the two statutes are "impossible to construe in connection and in harmony with each other and cannot be reconciled."6 The Hunt Court reasoned that based on Kentucky's rules of statutory construction, KRS § 533.060(2) controls because it is more specific and enacted later than either of the other statutes. Thus, the Court concluded the sentence for felonies committed by defendants on probation or parole shall not run concurrently with any other sentence.7 Devore v. Commonwealth expanded upon the Hunt ruling a few years later and created a bright line rule. The Devore Court interpreted KRS § 533.060(2) to require courts to sentence all subsequent multiple-count felony convictions committed while on parole or probation to run consecutively to each other.8 The Court explained its decision by pointing to the General Assembly, who passed KRS § 533.060 with the legislative intent to impose stiffer penalties on individuals on parole who committed subsequent felonies.9 For more than 20 years the law was so settled in the Commonwealth. Peyton v. Commonwealth The tide started to turn against the Devore rule when the Kentucky Supreme Court handed down Peyton v. Commonwealth.10 Even though the Peyton Court acknowledged the Legislature's intent was to strengthen the "ramifications for repeat offenders and those who have betrayed the position of trust they have been afforded by a grant of parole," the Court nonetheless began to move away from consecutive sentences for multiple felonies committed by a person on probation/parole.11 Peyton explicitly overruled the Devore rule to the extent that Devore requires courts 18 Bench & Bar January 2013

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