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NOV14,'MI3I~',1~ 25, 2009 TO 1311, I'tJ13 I.I SI I h;I)
~s~tyrrxrrr ~0~xrt a~ 41 2007-SC-000903-DG
ON REVIEW FROM COURTOFAPPEAL'S
V. CASE NO. 2006-CA-001267-MR
MASON CIRCUIT COURTNO. 01-CR-00106

COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURTBY JUSTICE SCHRODER
REVERSING AND REMANDING
We accepted discretionary review in this case to determine whether a defendant wasentitled to the benefit ofthe concurrent sentencing statute, KRS 532.110(1)(a), if he pled guilty to misdemeanors and a felony at the same time and received diversion on the felony conviction, but was subsequently ordered to serve the sentence on the felony. We hold that the concurrent sentencing provision was applicable to Appellant's case and thus reverse and remand for Appellant to be credited for time served on the misdemeanor convictions.
On September 4, 2001, Samuel Prather was indicted on charges of possession of marijuana, resisting arrest, carrying a concealed weapon, assault in the third degree (class Dfelony), and possession of a firearm while committing aviolation ofKRSChapter218 (class Dfelony). The indictment
stated that all five violations occun-ed oit Atagtist 2fi, 2001 . Oti Novembct-16, 2001, Prather pled guilty to the charges as follows. Pursuant to a plea agreement, they third-degree assault charge was amended to fourth-degree assault (misdeinearxor) and lice received-a total sentence of-six months in jail orl the misdemeanors. As t.o the felony charge of possession of a firearm while committing aviolation of KRS Chapter 218, the motion to enter the guilty plea and the order on the guilty plea both stated that said conviction wascovered by a separate pre-trial diversion agreement,. Orn the same date the order on the guilty plea was entered, January 22, 2002, the court. entered its order granting pretrial diversion on the felony, fixing the period of diversion at five years, with two years to serve if Prather violated the terms of his diversion.
Prather served his six-month sentence from January 18, 2002 through July 4, 2002. On June 26, 2003, the court. entered an order revoking Pra.t .her's diversion for numerous violations of the terms of his diversion and imposed the two-year sentence set out in the pre-trial diversion agreement. On that. same date, the court entered a "JUDGMENTAND SENTENCE ON PLEA OF GUILTY", which referenced the 2002 guilty plea to possession of a firearm while . committing a violation of KRSChapter 218, the pre-trial diversion agreement, and the revocation ofthe pre-trial diversion. In thejudgment, the court sentenced Prather to two years, probated for a period of five years.
On September 21, 2005, the court entered an order setting aside Prather's probation for multiple probation violations. In that order, Prather
was sentencedto two years' iriiprisoriniejit and wits not credited IOr the tiiile
spent in custody on the misdemeanor convictions. Prather subsequently
moved the court to order that: he be credited for the time served on the
rriisdefneanor convictions. `rhe trial court (.denied the motion, reasoning that
the concurrent sentencing statute, KRS 532.1 10(1)(a), was not applicable
because Prather had not been formally sentenced on the felony until after he
completed serving his sentence on the misdemeanors. The Court. of Appeals
.affirmed, agreeing with the trial court: that "the sentencing provisions afforded
by KRS 532.110(1)(a) do not apply to Prather" because "[when Prather was
serving his six-month jail term for the misdemeanor convictions, he had not. yet been convicted of the felony possession of a handgun charge."
Prather argues that pursuant to Thomas v. Commonwealth, 95 S.W. 3d 828, 830 (Ky. 2003), he was convicted of the felony at the same time he was convicted of the misdemeanors, when the judgment wasentered on his guilty
plea on January 22, 2002, and not at. the time he was ordered to serve the two

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