Cosby v. Com., No. 2002-SC-0806-DG.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtStumbo
Citation147 S.W.3d 56
PartiesMontez Lamont COSBY, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
Docket NumberNo. 2002-SC-0806-DG.
Decision Date26 August 2004
147 S.W.3d 56
Montez Lamont COSBY, Appellant,
v.
COMMONWEALTH OF KENTUCKY, Appellee.
No. 2002-SC-0806-DG.
Supreme Court of Kentucky.
August 26, 2004.
Rehearing Denied November 18, 2004.

[147 S.W.3d 57]

Daniel T. Goyette, Frank Wm. Heft, Jr., Jefferson District Public Defender, Louisville, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Samuel J. Floyd, Jr., Assistant Attorney General, Counsel for Appellee.

Opinion of the Court by Justice STUMBO.


This appeal poses the following issue of first impression: Where one is convicted of or pleads guilty to a criminal offense, remains free on bond while waiting to be sentenced, and in the interim perpetrates another crime, does the phrase "awaiting trial" as set forth in KRS 533.060(3) apply so as to require the imposition of consecutive sentences. For the reasons set forth below, we hold that it does and, therefore, affirm the result of the opinion rendered by the Court of Appeals.

The facts are these. In June of 2000, the appellant, Montez Lamont Cosby, agreed to waive his right to a jury determination of sentencing following his conviction on a single offense and agreed to accept the Commonwealth's plea agreement. Cosby also agreed to accept the Commonwealth's offer on two other charges and subsequently entered a guilty plea. In exchange for Cosby's plea, the Commonwealth agreed to recommend a total sentence of fifteen years imprisonment. However, if Cosby subsequently failed to appear at sentencing, he agreed to serve a prison term of twenty years. Cosby was allowed to remain free on bond until sentencing, which was scheduled to

147 S.W.3d 58

be held before the Jefferson Circuit Court on August 1, 2000. He failed to appear.

When Cosby failed to appear for sentencing, a bench warrant was issued for his arrest. Cosby was arrested pursuant to the bench warrant on December 18, 2000, and was subsequently charged with a variety of criminal offenses under Indictment No. 01-CR-0211. In March of 2001, pursuant to a plea agreement, Cosby entered a plea of guilty to the following charges: possession of handgun by a convicted felon; possession of drug paraphernalia while possessing a firearm; possession of a controlled substance (marijuana) while possessing a firearm; and operation of a motor vehicle by a person whose operator's license has been suspended or revoked. The Commonwealth agreed to recommend that Cosby serve a total of eight years imprisonment and had no objection to that sentence running concurrently with Cosby's other sentences if permitted by law. At sentencing, the circuit judge, Hon. F. Kenneth Conliffe, determined that Cosby's eight-year sentence on Indictment No. 01-CR-0211 was required to run consecutively to Cosby's total twenty-year sentence on the prior offenses pursuant to KRS 533.060(3). Cosby reserved his right to an appeal on the sentencing issue.

Cosby appealed to the Court of Appeals, which in a 2-1 opinion, upheld the circuit court's decision regarding the sentencing issue in view of our opinion in Moore v. Commonwealth, Ky., 990 S.W.2d 618 (1999). Although the issue presented in Moore concerned a defendant who committed a criminal offense after he had been indicted but not yet arraigned, as opposed to a defendant who committed a subsequent offense before sentencing, the Court of Appeals found the same considerations to be applicable in both situations. The Court of Appeals stated that KRS 533.060(3) should apply "as strongly to a person who ... committed a new crime after conviction but before sentencing on another offense," and ultimately concluded that the circuit court was precluded from running Cosby's sentences concurrently. We granted discretionary review and this appeal followed.

Essentially, it is Cosby's position that the actual issue in this case is whether the phrase "awaiting trial" as set forth in KRS 533.060(3), can be construed to mean "awaiting sentencing." Cosby states that Commonwealth v. Brasher, Ky.App., 842 S.W.2d 535 (1992) (overruled to the extent it conflicted with Moore, supra), stands for the proposition that the phrase "awaiting trial" does not mean "awaiting sentencing," and thus KRS 533.060(3) is not applicable to him.

KRS 533.060(3) states as follows:

When a person commits an offense while awaiting trial for another offense, and is subsequently convicted or enters a plea of guilty to the offense committed while awaiting trial, the sentence imposed for the offense committed while awaiting trial shall not run concurrently with confinement for the offense for which the person is awaiting trial.

We are primarily concerned with the meaning of the phrase "awaiting trial." This very issue was previously before this Court in Norton v. Commonwealth, Ky., 37 S.W.3d 750, 754 (2001), but was ultimately not resolved.

"General principles of statutory construction hold that a court must not be guided by a single sentence of a statute but must look to the provisions of the whole statute and its object and policy." County of Harlan v. Appalachian Reg'l Healthcare, Inc., Ky., 85 S.W.3d 607, 611 (2002). "No single word or sentence is determinative, but the statute as a whole

147 S.W.3d 59

must be considered." Id. In addition, "[w]e have a duty to accord to words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion." Bailey v. Reeves, Ky., 662 S.W.2d 832, 834 (1984). Moreover, "[i]n construing statutory provisions, it is presumed that the legislature did not intend an absurd result." Commonwealth, Central State Hosp. v. Gray, Ky., 880 S.W.2d 557, 559 (1994). The legislature's intention "shall be effectuated, even at the expense of the letter of the law." Commonwealth v. Rosenfield Bros. & Co., 118 Ky. 374, 80 S.W. 1178, 1180 (1904).

We must further acknowledge that the General Assembly "intends an Act to be effective as an entirety. No rule of statutory construction has been more definitely stated or more often repeated than the cardinal rule that significance and effect shall, if possible, be accorded to every part of the Act." George v. Scent, Ky., 346 S.W.2d 784, 789 (1961). Thus, we must look at all of the provisions of KRS 533.060.

There is no doubt that, with regard to KRS 533.060(3), it was the General Assembly's intent "to punish persons who were convicted of committing a subsequent crime or crimes while awaiting trial more severely by eliminating the possibility of concurrent sentences." Moore, 990 S.W.2d at 621. Neither party to this action disputes this. Also, KRS 533.060(2) precludes a court from ordering a sentence for a criminal offense committed while an accused is on probation or parole to run concurrently with another sentence. See Devore v. Commonwealth, Ky., 662 S.W.2d 829, 831 (1984). This is further indication of the General Assembly's intent in enacting KRS 533.060.

We cannot agree with Cosby's position that the phrase "awaiting trial" cannot be construed to include "awaiting sentencing." "A trial is the judicial investigation and determination of the issues between the parties to an action." Campbell v. Hulett, Ky., 243 S.W.2d 608, 611 (1951). In the case at bar, sentencing was an issue between Cosby and the Commonwealth that needed to be determined. As such, under the circumstances, it is our view that Cosby's sentencing hearing can be construed to fall within the meaning of the term "trial" for purposes of KRS 533.060(3).

Additionally, in Moore, we held that the phrase "awaiting trial" in KRS 533.060(3) was "broad enough to include the period of time immediately after arrest." 990 S.W.2d at 621. In light of that holding, we find that the aforesaid phrase is also expansive enough to encompass the sentencing of a criminal defendant. It is clear that absurd consequences would result if we adopted Cosby's interpretation of "awaiting trial;" namely, that the statute would apply until entry of the plea and after sentencing, but not to the period between the plea and sentencing. The unreasonable result would be Cosby's circumvention of the General Assembly's intent to punish those individuals who commit additional criminal offenses while awaiting further proceedings on other charges. This is especially true under the circumstances peculiar to this matter where the appellant committed criminal offenses after he failed to appear in court for sentencing on his earlier convictions.

Cosby correctly states that Brasher, supra, stands for the proposition that "awaiting trial" does not mean "awaiting sentencing." On the other hand, Cosby's position that Brasher remains good law as to the issue presented in this case is misplaced, as we conclude that the Court of Appeals reached the wrong decision therein. In Brasher, the Court of Appeals determined

147 S.W.3d 60

that KRS 533.060(3) did not preclude a circuit court from allowing sentences to run...

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42 practice notes
  • Pannell v. Shannon, No. 2011–SC–000587–DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 20 Marzo 2014
    ...in a statute if possible. “No single word ... is determinative, but the statute as a whole must be considered.” Cosby v. Commonwealth, 147 S.W.3d 56, 58–59 (Ky.2004) (quoting County of Harlan v. Appalachian Reg'l Healthcare, Inc., 85 S.W.3d 607, 611 (Ky.2002)). Thus, all the language of KRS......
  • Travelers Indem. Co. v. Armstrong, 2017-SC-000041-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • 1 Noviembre 2018
    ...by a single sentence of a statute but must look to the provisions of the whole statute and its object and policy." Cosby v. Commonwealth, 147 S.W.3d 56, 58 (Ky. 2004) (quoting County of Harlan v. Appalachian Reg'l Healthcare, Inc., 85 S.W.3d 607, 611 (Ky. 2002) ).The phrase "purchaser for u......
  • Revenue Cabinet v. O'Daniel, No. 2001-SC-1032-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 20 Enero 2005
    ...meaning unless to do so would constitute an absurd result."); See Bailey v. Reeves, 662 S.W.2d 832 (Ky.1984); Cosby v. Commonwealth, 147 S.W.3d 56 (Ky.2004). ("General principles of statutory construction hold that a court must not be guided by a single sentence of a statute but must look t......
  • Landrum v. Commonwealth ex rel. Beshear, 2018-SC-000122-TG
    • United States
    • United States State Supreme Court (Kentucky)
    • 29 Agosto 2019
    ...of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion." Cosby v. Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004) (quoting Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984) ).19 Thomson Reuters, 50 State Statutory Surveys, 0095 Surveys 4, Gove......
  • Request a trial to view additional results
42 cases
  • Pannell v. Shannon, No. 2011–SC–000587–DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 20 Marzo 2014
    ...in a statute if possible. “No single word ... is determinative, but the statute as a whole must be considered.” Cosby v. Commonwealth, 147 S.W.3d 56, 58–59 (Ky.2004) (quoting County of Harlan v. Appalachian Reg'l Healthcare, Inc., 85 S.W.3d 607, 611 (Ky.2002)). Thus, all the language of KRS......
  • Travelers Indem. Co. v. Armstrong, 2017-SC-000041-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • 1 Noviembre 2018
    ...by a single sentence of a statute but must look to the provisions of the whole statute and its object and policy." Cosby v. Commonwealth, 147 S.W.3d 56, 58 (Ky. 2004) (quoting County of Harlan v. Appalachian Reg'l Healthcare, Inc., 85 S.W.3d 607, 611 (Ky. 2002) ).The phrase "purchaser for u......
  • Manns v. Beckstrom, Case Nos. 15-6025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 9 Junio 2017
    ...Kentucky courts consistently reaffirmed the Devore principle in the intervening twenty-four years. See, e.g., Cosby v. Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004); Meade v. Commonwealth, No. 2006-CA-20-MR, 2006 WL 2848050, at *2 (Ky. Ct. App. Oct. 6, 2006); Rowan v. Commonwealth, No. 2003-CA......
  • Wilburn v. Com., No. 2008-SC-000787-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 17 Junio 2010
    ...without rejecting the interpretations of the earlier act, it probably means to approve those interpretations." Cosby v. Commonwealth, 147 S.W.3d 56, 62 (Ky.2004). Legislation following Merritt has not specifically rejected the conception of a "dangerous weapon" as enunciated in the 4 KRS 50......
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