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C ommonwealth O f K entucky C ourt O f A ppeals
NO. 1998-CA-003050-MR

CHARLES ROBERT FRANK

APPELLANT

v.

APPEAL FROM WARREN CIRCUIT COURT HONORABLE JOHN D. MINTON, JR., JUDGE ACTION NOS. 81-CR-00352, 84-CR-00506, 87-CR-00722, 88-CR-00034, & 96-CR-00697

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: GARDNER, HUDDLESTON AND KNOX, JUDGES. Charles Robert Frank appeals from an order of

GARDNER, JUDGE:

the Warren Circuit Court denying his motion for concurrent sentencing. We affirm.

Frank has been in and out of prison on various criminal convictions since the late 1970's. On September 30, 1998, he

filed a motion seeking an order from the Warren Circuit Court requiring the Department of Corrections to run the sentences on several of his convictions concurrently with each other. The

appellate record is incomplete in that it does not contain the circuit court records for all of the convictions involved in Frank's motion, but he has attached several documents to his

motion evidencing his criminal history.

Despite the inadequacy

of the appellate record, we believe Frank's complaint can be rejected on the merits based on the current record. In September 1978, Frank was convicted in Jefferson Circuit Court under Indictment No. 158122 on third-degree burglary and on the status offense of being a second-degree persistent felony offender (PFO II), and he received a ten year sentence. Also in September 1978, Frank was convicted in

Jefferson Circuit Court under Indictment No. 158270 on theft by unlawful taking over $100 and being a PFO II, and he received a sentence of five years. In August 1980, he was granted parole

and released from prison on these convictions. In August 1981, Frank was convicted in Warren Circuit Court under Indictment No. 81-CR-352 on two counts of theft by unlawful taking over $100 committed in May and June 1981, and he received two five year sentences that were ordered to run consecutively for a total sentence of ten years. In October

1981, Frank was convicted in Edmonson Circuit Court under Indictment No. 81-CR-010 on one count of third-degree burglary and received a sentence of two years. In August 1984, Frank was

granted parole and released from prison. In January 1985, Frank was convicted in Warren Circuit Court under Indictment No. 84-CR-506 on one count of seconddegree forgery committed in August 1984 and received a sentence of two years. Again, Frank was granted parole and released from

prison in May 1987.

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In February 1988, Frank was convicted in Warren Circuit Court under Indictment No. 87-CR-722 for one count of theft by unlawful taking over $100 committed in August 1987. The initial

judgment reflected a sentence of five years, but following a motion for relief filed by Frank, the circuit court amended the judgment in February 1994 to reflect a sentence of one year. In January 1988, the Warren County Grand Jury indicted Frank under Indictment No. 88-CR-34 on one count of third-degree burglary, one count of theft by unlawful taking, seven counts of second-degree forgery, and one count of being a first-degree persistent felony offender (PFO I), involving crimes committed in October 1987, while Frank was on parole and free on bond in the case under Indictment No. 87-CR-722. In March 1988, Frank pled

guilty to all of the burglary, theft and forgery offenses pursuant to a plea agreement with the Commonwealth, who moved to dismiss the PFO I count and recommended a sentence of five years. On March 1, 1988, the trial court sentenced Frank consistent with the plea agreement to five years on each of the nine counts to run concurrently with each other for a total sentence of five years, but ordered the sentence to run consecutively to the one year sentence in Indictment No. 87-CR-722. In February 1996,

Frank was granted parole and released from prison. In May 1997, Frank pled guilty in Warren Circuit Court under Indictment No. 96-CR-697 to one count of first-degree burglary, and one count of theft by unlawful taking over $300.1

The full circuit court record pertaining to this indictment is not included in the record on appeal. The judgment and (continued...) -3-

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On May 27, 1997, the circuit court sentenced Frank to fifteen years for first-degree burglary and five years for theft by unlawful taking over $300 to run concurrently for a total sentence of fifteen years, but to run consecutively to the sentence he was serving at the time. On September 30, 1998, Frank filed a motion entitled "Motion for Sentences of Imprisonment Imposed For Crimes Committed while On Parole Be Ran (sic) Concurrently With His Reimprisonment For Sentences Movant Was On Parole," ostensibly brought pursuant to Kentucky Revised Statute (KRS) 532.110(3). In the motion, Frank sought an order from the circuit court directing the Department of Corrections to calculate his collective term of imprisonment by running all of his sentences concurrently. The trial court summarily denied the motion for This appeal followed.

November 18, 1998.

Frank argues that he is entitled to have his Warren Circuit Court sentences run concurrently with each other and with the sentences he received in the Jefferson Circuit Court based on KRS 532.110(3) and KRS 439.352. He notes that under KRS

439.352,2 his parole status was automatically terminated when he

(...continued) sentence on a plea of guilty document attached to Frank's motion indicates a count charging him with being a PFO I was dismissed.
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KRS 439.352 states as follows: Recommitment of a parolee to prison on a new sentence received for commission of a crime while on parole shall automatically terminate his parole status on any sentence on which he has not received a final discharge, or a restoration of civil rights, (continued...) -4-

received a "new sentence" on the offenses committed while on parole. Frank also asserts that the Warren Circuit Court did not

order any of his sentences to run consecutively with the period of "reimprisonment" he had to serve on the prior sentences. Given these facts, he contends that KRS 532.110(3) dictates that any sentence he received for the offenses committed while on parole should run concurrently with the sentences related to the offenses for which his parole was automatically terminated. KRS 532.110(3) provides as follows: When a defendant is sentenced to imprisonment for a crime committed while on parole in this state, the term of imprisonment and any period of reimprisonment that the board of parole may require the defendant to serve upon the revocation of his parole shall run concurrently, unless the court orders them to run consecutively. Frank's position lacks merit for two reasons. First,

he erroneously represents that none of the Warren Court judgments ordered him to serve his sentence consecutively to the sentences he was serving because his parole status had been revoked. Judgment and Sentence in Indictment No. 96-CR-697 explicitly states that the fifteen year sentence in that case was to be The

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(...continued) prior to the date of recommitment. The prisoner shall, at the time of the recommitment on the new sentence, begin to accrue additional time credit toward conditional release or expiration of sentence on the sentence on which he had previously been paroled unless he has been finally discharged from parole on the sentence or has been restored to civil rights prior to the date of the recommitment.

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served consecutively with the previous sentence Frank was "now serving." In addition, the Judgment and Sentence in Indictment

No. 88-CR-34 specifically states that the five year sentence in that case was to be served consecutively to the sentence previously imposed in Indictment No. 87-CR-722. Second, regardless of whether the judgments specifically provided for consecutive sentencing, under KRS 533.060(2), Frank was required to serve any sentence received for an offense committed while on parole consecutively with his unexpired prior sentences. KRS 533.060(2) provides: 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. (Emphasis added). Frank's argument highlights an apparent discrepancy between KRS 532.110(3) and KRS 533.060(2). However, in

addressing a related issue involving an apparent conflict between KRS 532.110(1)(c), which dealt with limits on consecutive sentences, and KRS 533.060(2), the Kentucky Supreme Court held in Devore v. Commonwealth, Ky., 662 S.W.2d 829 (1984), cert. denied, 469 U.S. 836, 105 S. Ct. 132, 83 L. Ed. 2d 72 (1984), that the latter statute took precedence. The court stated:

With respect to KRS 533.060(2), the General Assembly further addresses the -6-

problem of the felons who commit subsequent felonies while on parole, when such a circumstance occurs, two things (according to the statute) occur: (1) The defendant shall not (for the subsequent felony) be eligible for probation, shock probation or conditional discharge, and (2) The length of the persons sentence (again, for the subsequent felony conviction) shall not run concurrently with any other sentence. By obvious inference, the General Assembly has said that the prison sentence (for the second felony conviction) shall be run consecutively. The General Assembly has rather clearly shown its intention to provide stiff penalties for convicted and paroled felons who commit subsequent felonies while on parole. Parole is, of course, a very special privilege given to prisoners who have evidenced to the parole board, by their conduct and their verbiage, their reliability to have their sentence served out of prison and to comply with whatever condition the board may attach. The General Assembly obviously felt that those parolees who violate this trust by the commission of a felony shall be forced to suffer penalties. Viz--not being eligible for probation, etc. and not having their subsequent sentences served concurrently. To argue that the maximum sentence provision of KRS 532.110(1)(c) is applicable to this subsequently enacted, purposeful statute simply is not correct. The singling out of paroled felons for the special treatment set out in KRS 533.060(3) mandates us to rule that the maximum sentence provision of KRS 532.110(1)(c) is not applicable to those individuals who fall within the terms of KRS 533.060(3). Id. at 831 (Emphasis in original). In Riley v. Parke, Ky., 740 S.W.2d 934 (1987), the court again held that KRS 533.060(2) mandated consecutive sentencing for defendants committing offenses while on parole despite a facial conflict with KRS 532.110(2), which allows concurrent sentencing unless otherwise specified in the circuit court judgment. Furthermore, in Brewer v. Commonwealth, Ky., 922

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S.W.2d 380 (1996), the Kentucky Supreme Court reaffirmed its view that KRS 533.060(2) required consecutive sentencing in all situations involving crimes committed while the defendant was on parole despite a conflict with KRS 533.040(3), which required concurrent sentencing if a defendant's probation was not revoked within a statutory time period. In Brewer, the court noted its

prior decisions in Devore and Riley recognizing legislative intent to impose stiffer penalties on parolees who commit crimes while on parole. The court also relied on the general rule of

statutory construction that a statute enacted later in time controlled over an earlier enacted statute. While there is no case directly on point, we believe that KRS 533.060(2) controls over KRS 532.110(3). This view is

consistent with the Kentucky Supreme Court's interpretation of the legislature's intent in dealing with defendants who commit crimes while on parole, and its application of KRS 533.060(2) despite conflicts with other statutes and other provisions of KRS 532.110. Furthermore, under the rule of statutory construction applied in Brewer, KRS 533.060 takes precedence over KRS 532.110(3) because the former was enacted in 1976 while the latter was enacted two years earlier in 1974. Frank's argument

that KRS 532.110(3) should take precedence because it was reenacted after 1976 is without merit. The subsequent re-

enactments of KRS 532.110 involved amendments to sections other than Subsection (3). Under Section 51 of the Kentucky

Constitution, the entire statute is required to be re-enacted

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when only portions of the statute are amended.

See Board of

Penitentiary Commissioners v. Spencer, 159 Ky. 255, 166 S.W.2d 1017 (1914). These re-enactments of the entire statute do not

evidence an intent by the legislature to have Subsection (3) of KRS 532.110 take priority over KRS 533.060(2). In conclusion, Frank has not established that he is entitled to concurrent sentencing. Pursuant to KRS 533.060(2),

all of the sentences Frank received for crimes committed while he was on parole are required to run consecutively to the sentences for those offenses for which he was on parole. Consequently, the

trial court did not err in denying Frank's motion for concurrent sentencing. For the foregoing reasons, we affirm the order of the Warren Circuit Court. ALL CONCUR.

BRIEF FOR APPELLANT: Charles Robert Frank, Pro Se La Grange, Kentucky

BRIEF FOR APPELLEE: A. B. Chandler III Attorney General Matthew Nelson Assistant Attorney General Frankfort, Kentucky

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