Kimmel v. Commonwealth
| Decision Date | 27 April 2023 |
| Docket Number | 2022-SC-0038-MR,2022-SC-0061-MR |
| Parties | DAVID A. KIMMEL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE DAVID A. KIMMEL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
COUNSEL FOR APPELLANT:
Daniel Cameron
Attorney General of Kentucky
Joseph A. Beckett
Assistant Attorney General
OPINION OF THE COURTBISIG JUSTICE.
In March 2020, Appellant David A. Kimmel shoplifted from Walmart in Boyd County, Kentucky. He was charged and subsequently released on bond pending trial. Six months later, Kimmel shoplifted from Rural King. Prior to these 2020 shoplifting incidents, each store gave Kimmel notice prohibiting him from being on the premises. Kimmel agreed to have all charges tried at once and, after a jury trial, the trial court sentenced Kimmel to forty years in prison consistent with the jury's recommendation. Kimmel now appeals as a matter of right. After review, we conclude that the forty-year sentence violates the aggregate cap on sentences prescribed by Kentucky Revised Statute (KRS) 532.110(1)(c). For the following reasons, we affirm in part, vacate in part, and remand this case to the Boyd Circuit Court.
FACTS AND PROCEDURAL HISTORY
On March 12, 2020, Michael Knipp, an Asset Protection associate at Walmart in Boyd County, Kentucky observed Kimmel entering the store. Knipp was familiar with Kimmel because Kimmel had previously been caught shoplifting at Walmart. Because of this familiarity, Knipp called the sheriff's department almost immediately after observing Kimmel in the store. Knipp watched Kimmel picking up two dolls, two sports bras, and a phone charger. He concealed the sports bras on his person and placed the other items in his cart. He then walked to the hardware department and placed the sports bras, one doll, and the phone charger inside a mailbox box.[1] Kimmel resealed the box, walked to housewares, and concealed the other doll on his person. Kimmel proceeded to walk out the door without paying for the doll.
After Kimmel returned to a vehicle, a sheriff's deputy conducted a traffic stop on the van Kimmel was in. The doll was found inside the van and Kimmel could not produce a receipt for the merchandise. Inside the store, the mailbox box was photographed, showing it contained the doll, sports bras, and phone charger. Kimmel was ultimately charged with third-degree burglary given the prior notice to stay off the premises and theft by unlawful taking for shoplifting the doll.
After being charged for the Walmart incident on March 19, 2020 and subsequently released on bond, Kimmel committed another theft at the Rural King in Boyd County, Kentucky. On September 23, 2020, Jacob Thomas, a Rural King tractor manager, was walking into the store when he observed Kimmel pushing a shopping cart out of the store. Thomas was familiar with Kimmel because Kimmel stole from Rural King before and was previously given notice to stay off the premises.
The shopping cart contained three boxes of ammunition. Thomas repeatedly asked Kimmel for a receipt, which he did not produce. Kimmel then lied and stated he was trying to return the ammunition. Thomas grabbed the cart and Kimmel picked up two of the boxes of ammunition from the cart. Kimmel then ran to his vehicle and left the premises. Thomas reported the theft and gave a statement to police. Kentucky State Police investigated the theft and later located Kimmel. On April 13, 2021, Kimmel was charged with third-degree burglary given the prior notice to stay off the premises and theft by unlawful taking for shoplifting the ammunition. He was also indicted for being a first-degree Persistent Felony Offender (PFO).
Kimmel agreed to have all charges tried together and trial began on November 22, 2021. Deanna Harris, Kimmel's girlfriend who accompanied him to Walmart, testified that an unknown individual had purchased the doll found in Kimmel's vehicle and that they planned to return it. Harris also accompanied Kimmel to Rural King on September 23, 2020. Harris claimed she was the one pushing the shopping cart with the ammunition out of the store, and she was the one approached by Thomas. Harris also stated that Kimmel had no intention of stealing anything that day, and that Kimmel was unaware that she had taken the boxes of ammunition. Harris pled guilty to theft by unlawful taking for the two boxes of ammunition stolen from Rural King.
Kimmel also testified and stated that two days prior to the Walmart incident, his mother purchased the doll found in his vehicle. He also stated that no Walmart staff approached him and told him to leave Walmart property. As to the Rural King incident, Kimmel advised that he entered the store with Harris. Kimmel testified that after a brief verbal argument, he left the store before Harris and Harris was the one who stole the ammunition. Kimmel did not recall being approached by Thomas but remembered that a store employee approached him while putting the ammunition in his car. On crossexamination, Kimmel admitted that he knew he was not permitted on Walmart or Rural King property.
The jury found Kimmel guilty of two counts of third-degree burglary, two counts of theft by unlawful taking (under $500) and being a first-degree PFO. The jury initially recommended a sentence of five years on each burglary charge but enhanced those sentences to twenty years each after finding that Kimmel is a first-degree PFO. The jury also recommended that the sentences run consecutively, for a total sentence of forty years. The trial court followed the jury's recommendation. Kimmel appeals as a matter of right.
ANALYSIS
In accordance with the jury's recommendation, the trial court sentenced Kimmel to five years for each burglary count, enhanced each count to twenty years based upon his PFO status, and then ran the sentences consecutively for a total sentence of forty years. Kimmel argues that the trial court erred by ordering him to serve a forty-year sentence. KRS 532.110(1)(c) states, in relevant part, that "[t]he aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed." Third-degree burglary is a Class D felony. Because the maximum length authorized by KRS 532.080 for a Class D felony as enhanced by a PFO determination is twenty years, Kimmel argues that the trial court erred by entering an aggregate consecutive sentence doubling that amount.
During sentencing, defense counsel argued that the maximum term of imprisonment for Class D felonies enhanced by the PFO statute is twenty years. Therefore, pursuant to KRS 532.110(1)(c), defense counsel requested that the trial court correct the illegal forty-year sentence recommended by the jury. The trial court inquired with the Commonwealth, and counsel for the Commonwealth advised the trial court that the Department of Corrections would automatically fix the error. The trial court agreed, classifying it as a computation issue, not a sentencing issue. The trial court followed the jury's recommendation and ran the two twenty-year sentences consecutively for a total sentence of forty years and entered the final judgment.
In McClanahan v. Commonwealth, 308 S.W.3d 694, 699 (Ky. 2010), the Court explained that for a PFO convicted of a Class C felony, the aggregate of the sentences imposed could not lawfully exceed twenty years. KRS 532.080 provides the same sentence limitation for Class D felonies. However, albeit in a footnote, the Court also noted that "[t]here are several statutory exceptions to this general rule," including KRS 533.060(3). McClanahan, 308 S.W.3d at 699 n.8.
KRS 533.060(3) states:
[w]hen 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.
This issue requires analysis of the interplay between KRS 532.110, KRS 532.080 (the first-degree PFO statute), and KRS 533.060.
The Commonwealth argues that KRS 533.060(3) controls and, as such, the trial court did not err in sentencing Kimmel to forty years in prison. When a person commits an offense while awaiting trial for a prior offense, KRS 533.060(3) prohibits the imposition of a sentence for the offense committed while awaiting trial that runs concurrently with confinement for the offense for which the person was awaiting trial. The practical effect is that the trial court must run the sentence for the offense committed while awaiting trial consecutively with the confinement for the offense for which the person was awaiting trial. Here, applying KRS 533.060(3) in isolation would lead to a conclusion that the trial court correctly imposed a forty-year sentence.
However, we must also apply KRS 532.110(1)(c), which imposes a maximum aggregate sentence of the longest extended term authorized by KRS 532.080. Based on the offenses for which Kimmel was convicted, the maximum term of imprisonment is twenty years, in accordance with KRS 532.080(6)(b). Notably, KRS 532.110(1)(c) states:
The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences...
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