Moore v. Com., 98-SC-271-DG

Decision Date22 April 1999
Docket NumberNo. 98-SC-271-DG,98-SC-271-DG
Citation990 S.W.2d 618
PartiesJames MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Daniel T. Goyette, Jefferson District Public Defender, of counsel, Bruce P. Hackett, Deputy Appellate Defender, Jefferson District Public Defender, Louisville, KY, for appellant.

A.B. Chandler III, Attorney General, Samuel J. Floyd, Jr., Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, for appellee.

WINTERSHEIMER, Justice.

This appeal is from a decision of the Court of Appeals which held that the circuit court properly sentenced Moore to consecutive prison terms pursuant to KRS 533.060(3).

The issue presented is whether KRS 533.060(3) mandates consecutive sentences under the phrase "awaiting trial" when a defendant commits a second offense after he has been indicted but not yet arraigned.

Moore entered a conditional plea of guilty to indictment No. 95-CR-3191, which is the conviction under appeal, and was sentenced to a five-year prison term to run consecutive to his seven-year prison term which had resulted from his conviction under indictment No. 96-CR-0634. On December 19, 1995, the Jefferson County Grand Jury indicted Moore for eight counts of third-degree burglary, criminal possession of a forged instrument, three counts of theft by unlawful taking under $300, two counts of giving a police officer a false name or address and as a Persistent Felony Offender II.

The basis for these charges occurred in August, October and November of 1995. Moore had been arrested on five separate occasions and had been repeatedly arraigned in district court on the charges contained in indictment No. 95-CR-3191. In each case, he was released on bond only to commit new offenses. He was arraigned in circuit court under indictment No. 95-CR-3191 on January 4, 1996 and entered a plea of Not Guilty. On December 21, 1995, two days after his indictment, he committed another burglary offense for which he was later charged in Indictment No. 96-CR-0634, upon which charges he was tried by a jury and convicted of burglary and as a persistent felony offender. He was sentenced to seven years in prison.

A jury trial was also held in May of 1996 regarding indictment No. 95-CR-3191, but a mistrial was declared. On July 17, 1996, he entered a plea agreement in 95-CR-3191, in which he pled guilty to one count of third-degree burglary with a recommendation from the prosecution of a five-year sentence. He was sentenced to five years, but the circuit judge determined that such sentence was to run consecutively with the seven year sentence imposed earlier. He properly reserved his right, pursuant to RCr 8.09, to challenge the circuit court's ruling that the sentences were required to run consecutively.

The Court of Appeals affirmed the judgment of the circuit court in all respects, and this Court granted discretionary review because the case presents a question of first impression in regard to the application of the sentencing statute.

KRS 533.060(3) reads 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 the confinement for the offense for which the person is awaiting trial.

Moore's argument is that the trial court committed reversible error when it ruled that consecutive sentences were required by the statute because he could not have been "awaiting trial" until he was arraigned on the first indictment and that he was not even aware that he had been indicted.

Prior opinions, which are factually different, have been written by the Court of Appeals and present arguably an unsettled question as to the meaning of the words "awaiting trial." Commonwealth v. Brasher, Ky.App., 842 S.W.2d 535 (1992); Commonwealth v. Wilcoxson, Ky.App., 846 S.W.2d 719 (1993); and Whalen v. Commonwealth, Ky.App., 891 S.W.2d 86 (1995), must be considered in our review. Brasher, supra, made the statement that it is generally considered that a defendant is not yet awaiting trial before an indictment is returned and that one can only be considered awaiting trial after an indictment. Clearly, that remark was dicta in view of the facts then before the court. The issue in Brasher was whether someone was awaiting trial after a conviction had been returned, but before he had been sentenced. Brasher determined that the defendant's situation did not meet the necessary circumstances. Discretionary review was not sought.

In Wilcoxson, supra, the defendant's new offense was an escape after being arrested. He had not been indicted. The panel in Wilcoxson reasoned that at the time of his escape, he was not awaiting trial, but only a possible indictment. In Whalen, supra, the defendant had been charged and released on bond when he committed a new offense and had not yet been indicted. Whalen cited Wilcoxson and the panel stated that the trial judge should have at least considered concurrent sentencing.

This Court of Appeals panel held that the language of the case law was that a defendant is awaiting trial once he had been indicted. The argument presented by Moore that he had no notice of the charges was to no avail because he had previously been arrested and made bond on these charges. We agree that Moore had sufficient notice because he had been arrested on the charges.

We must first observe that Moore has cited no statutory or case law authority for the argument that he presents. The contention that KRS 533.060(3) must be strictly or narrowly construed is without merit, and the suggestion that there is a notice requirement cannot be found in the language of the statute. Even Moore agrees that the legislative intent was for stricter sentences for those who...

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18 cases
  • Hodge v. Com., No. 1996-SC-1085-MR.
    • United States
    • United States State Supreme Court — District of Kentucky
    • February 24, 2000
    ...Ky., 931 S.W.2d 446 (1996); Whalen v. Commonwealth, Ky. App., 891 S.W.2d 86 (1995), overruled on other grounds, Moore v. Commonwealth, Ky., 990 S.W.2d 618 (1999). 2. Death Qualification of Appellant claims it was error to excuse six prospective jurors because they could not consider imposit......
  • Cosby v. Com.
    • United States
    • United States State Supreme Court — District of Kentucky
    • August 26, 2004
    ...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......
  • Hudson v. Com.
    • United States
    • United States State Supreme Court — District of Kentucky
    • May 18, 2006
    ...88 (Ky.App.1995) (defendant failed to disclose testimony absent witness would provide), overruled on other grounds by Moore v. Commonwealth, 990 S.W.2d 618 (Ky.1999). Cf. Taylor v. Commonwealth, 545 S.W.2d 76, 77 (Ky. 1976) (though denial of continuance was improper in rape case where defen......
  • Hudson v. Commonwealth, No. 2005-SC-0120-MR (Ky. 10/19/2006)
    • United States
    • United States State Supreme Court — District of Kentucky
    • October 19, 2006
    ...88 (Ky. App. 1995) (defendant failed to disclose testimony absent witness would provide), overruled on other grounds by Moore v. Commonwealth, 990 S.W.2d 618 (Ky. 1999). Cf. Taylor v. Commonwealth, 545 S.W.2d 76, 77 (Ky. 1976) (though denial of continuance was improper in rape case where de......
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