RENDERED: NOVEMBER 22, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0209-MR
BRITTANY PAXSON APPELLANT
APPEAL FROM BARREN CIRCUIT COURT v. HONORABLE JOHN T. ALEXANDER, JUDGE ACTION NO. 21-CR-00016
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND A. JONES, JUDGES.
THOMPSON, CHIEF JUDGE: Brittany Paxson (“Appellant”) appeals from a
final judgment and sentence of the Barren Circuit Court on her plea of guilty to one
count each of rape in the third degree and sexual misconduct.1 She argues that the
circuit court erred in stating that it did not place her on home incarceration, which
1 Kentucky Revised Statutes (“KRS”) 510.060 and KRS 510.140. resulted in the final judgment improperly failing to grant any home incarceration
credit. After careful review, we find no error and affirm the judgment on appeal.
FACTS AND PROCEDURAL HISTORY
In 2020 and 2021, Appellant was twice indicted by the Barren County
grand jury on various crimes relating to unlawful sexual contact with a minor
under the age of 16. On April 12, 2021, Appellant was granted a separate bond for
each case, set at $25,000.00, and secured by 10% cash and a surety. The court
imposed several conditions for the bonds, including a curfew between 7:00 p.m.
and 7:00 a.m.; leaving her residence between 7:00 a.m. and 7:00 p.m. only for
employment, meeting with counsel, and court appearances; and wearing an ankle
monitor to enforce the curfew. In granting the bonds, the circuit court stated that,
“pretrial release in this matter does not constitute home incarceration. The ankle
monitor shall be solely for the purpose of monitoring the curfew imposed as a
nonfinancial bond condition.”
On September 8, 2022, Appellant entered a guilty plea in No. 20-CR-
00338 to one count of sexual misconduct in exchange for a recommended 12-
month sentence. In No. 21-CR-00016, Appellant entered a guilty plea to one count
of rape in the third degree, with a recommended sentence of three years in prison
to run concurrently with the prior 12-month sentence.
-2- Prior to sentencing, an issue arose as to whether Appellant was
entitled to credit for time served under home incarceration.2 The court explained to
Appellant that because she was not on home incarceration, she was not entitled to
home incarceration credit. The court went on to state that even though Appellant
was not given home incarceration, it would be inclined, “just as a matter of
fairness,” to treat it as such if someone from the home incarceration office testified
that Appellant has been placed on home incarceration.
At sentencing, defense counsel called Brandi Riddle who testified that
Appellant wore an ankle monitor and was being monitored by their office in their
home incarceration program. Ms. Riddle stated that Appellant was compliant with
the conditions of home incarceration and had no violations.
Thereafter, a final judgment was rendered which did not grant any
home incarceration credit to Appellant. The court noted in its judgment that,
though Appellant had moved for such credit, the court had expressly stated that
Appellant was not on home incarceration. The court went on to state that the ankle
monitor was ordered to enforce the curfew, which was a condition of the bond.
The court noted that if Appellant had been placed on home incarceration, she
would be entitled to home incarceration credit; however, since she was never
placed on home incarceration, no such credit was owed. This appeal followed.
2 See KRS 431.517.
-3- ARGUMENTS AND ANALYSIS
Appellant argues that the Barren Circuit Court erred in stating that it
did not intend to place Appellant on home incarceration. She directs our attention
to KRS 532.120(3), which states that,
[t]ime spent in custody prior to the commencement of a sentence as a result of the charge that culminated in the sentence shall be credited by the Department of Corrections toward service of the maximum term of imprisonment in cases involving a felony sentence and by the sentencing court in all other cases.
Appellant also points to KRS 532.120(7), which states that, “[a]s used in
subsections (3) and (4) of this section, time spent in custody shall include time
spent in pretrial home incarceration pursuant to KRS 431.517, subject to the
conditions imposed by KRS 532.245.”
The focus of Appellant’s argument is that even though the Barren
Circuit Court stated when ordering bond, and later at sentencing, that it had not
ordered home incarceration, Appellant was nevertheless placed on home
incarceration as evinced by the testimony of Ms. Riddle. Appellant maintains that
since she was placed on home incarceration, even if that was not the circuit court’s
intent, she is statutorily entitled to credit for that service by application of KRS
532.120(3).
As noted by the Commonwealth, Kentucky’s circuit courts, as all
Kentucky courts, speak “only through written orders entered upon the official
-4- record.” Kindred Nursing Centers Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349
(Ky. App. 2010) (citations omitted). As such, we are constrained, as are the parties
to this appeal, to consider what the Barren Circuit Court actually ordered rather
than what it might have ordered. It is uncontroverted that the Barren Circuit Court
expressly stated on the record, and so ordered, that Appellant was placed on a
curfew as a condition of her bond. It further ordered that the curfew was enforced
via an ankle monitor.
This Court has previously recognized a curfew as a proper condition
for pretrial release on bond. See Clemons v. Commonwealth, 152 S.W.3d 256 (Ky.
App. 2004). The Barren Circuit Court expressly ordered a curfew as a condition of
Appellant’s bond in the matter before us and stated on the record that it was not
ordering home incarceration. Appellant has not cited any basis, nor has our
research revealed any, for concluding that the usage of an ankle monitor to enforce
a curfew, nor the Department of Corrections’ characterization of a curfew as home
incarceration, converts a curfew into home incarceration for purposes of applying a
home incarceration credit.
Arguendo, even if Appellant was on home incarceration, the authority
to grant home incarceration credit rests with the Department of Corrections and not
the Barren Circuit Court. As noted above, “[t]ime spent in custody prior to the
commencement of a sentence as a result of the charge that culminated in the
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: NOVEMBER 22, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0209-MR
BRITTANY PAXSON APPELLANT
APPEAL FROM BARREN CIRCUIT COURT v. HONORABLE JOHN T. ALEXANDER, JUDGE ACTION NO. 21-CR-00016
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND A. JONES, JUDGES.
THOMPSON, CHIEF JUDGE: Brittany Paxson (“Appellant”) appeals from a
final judgment and sentence of the Barren Circuit Court on her plea of guilty to one
count each of rape in the third degree and sexual misconduct.1 She argues that the
circuit court erred in stating that it did not place her on home incarceration, which
1 Kentucky Revised Statutes (“KRS”) 510.060 and KRS 510.140. resulted in the final judgment improperly failing to grant any home incarceration
credit. After careful review, we find no error and affirm the judgment on appeal.
FACTS AND PROCEDURAL HISTORY
In 2020 and 2021, Appellant was twice indicted by the Barren County
grand jury on various crimes relating to unlawful sexual contact with a minor
under the age of 16. On April 12, 2021, Appellant was granted a separate bond for
each case, set at $25,000.00, and secured by 10% cash and a surety. The court
imposed several conditions for the bonds, including a curfew between 7:00 p.m.
and 7:00 a.m.; leaving her residence between 7:00 a.m. and 7:00 p.m. only for
employment, meeting with counsel, and court appearances; and wearing an ankle
monitor to enforce the curfew. In granting the bonds, the circuit court stated that,
“pretrial release in this matter does not constitute home incarceration. The ankle
monitor shall be solely for the purpose of monitoring the curfew imposed as a
nonfinancial bond condition.”
On September 8, 2022, Appellant entered a guilty plea in No. 20-CR-
00338 to one count of sexual misconduct in exchange for a recommended 12-
month sentence. In No. 21-CR-00016, Appellant entered a guilty plea to one count
of rape in the third degree, with a recommended sentence of three years in prison
to run concurrently with the prior 12-month sentence.
-2- Prior to sentencing, an issue arose as to whether Appellant was
entitled to credit for time served under home incarceration.2 The court explained to
Appellant that because she was not on home incarceration, she was not entitled to
home incarceration credit. The court went on to state that even though Appellant
was not given home incarceration, it would be inclined, “just as a matter of
fairness,” to treat it as such if someone from the home incarceration office testified
that Appellant has been placed on home incarceration.
At sentencing, defense counsel called Brandi Riddle who testified that
Appellant wore an ankle monitor and was being monitored by their office in their
home incarceration program. Ms. Riddle stated that Appellant was compliant with
the conditions of home incarceration and had no violations.
Thereafter, a final judgment was rendered which did not grant any
home incarceration credit to Appellant. The court noted in its judgment that,
though Appellant had moved for such credit, the court had expressly stated that
Appellant was not on home incarceration. The court went on to state that the ankle
monitor was ordered to enforce the curfew, which was a condition of the bond.
The court noted that if Appellant had been placed on home incarceration, she
would be entitled to home incarceration credit; however, since she was never
placed on home incarceration, no such credit was owed. This appeal followed.
2 See KRS 431.517.
-3- ARGUMENTS AND ANALYSIS
Appellant argues that the Barren Circuit Court erred in stating that it
did not intend to place Appellant on home incarceration. She directs our attention
to KRS 532.120(3), which states that,
[t]ime spent in custody prior to the commencement of a sentence as a result of the charge that culminated in the sentence shall be credited by the Department of Corrections toward service of the maximum term of imprisonment in cases involving a felony sentence and by the sentencing court in all other cases.
Appellant also points to KRS 532.120(7), which states that, “[a]s used in
subsections (3) and (4) of this section, time spent in custody shall include time
spent in pretrial home incarceration pursuant to KRS 431.517, subject to the
conditions imposed by KRS 532.245.”
The focus of Appellant’s argument is that even though the Barren
Circuit Court stated when ordering bond, and later at sentencing, that it had not
ordered home incarceration, Appellant was nevertheless placed on home
incarceration as evinced by the testimony of Ms. Riddle. Appellant maintains that
since she was placed on home incarceration, even if that was not the circuit court’s
intent, she is statutorily entitled to credit for that service by application of KRS
532.120(3).
As noted by the Commonwealth, Kentucky’s circuit courts, as all
Kentucky courts, speak “only through written orders entered upon the official
-4- record.” Kindred Nursing Centers Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349
(Ky. App. 2010) (citations omitted). As such, we are constrained, as are the parties
to this appeal, to consider what the Barren Circuit Court actually ordered rather
than what it might have ordered. It is uncontroverted that the Barren Circuit Court
expressly stated on the record, and so ordered, that Appellant was placed on a
curfew as a condition of her bond. It further ordered that the curfew was enforced
via an ankle monitor.
This Court has previously recognized a curfew as a proper condition
for pretrial release on bond. See Clemons v. Commonwealth, 152 S.W.3d 256 (Ky.
App. 2004). The Barren Circuit Court expressly ordered a curfew as a condition of
Appellant’s bond in the matter before us and stated on the record that it was not
ordering home incarceration. Appellant has not cited any basis, nor has our
research revealed any, for concluding that the usage of an ankle monitor to enforce
a curfew, nor the Department of Corrections’ characterization of a curfew as home
incarceration, converts a curfew into home incarceration for purposes of applying a
home incarceration credit.
Arguendo, even if Appellant was on home incarceration, the authority
to grant home incarceration credit rests with the Department of Corrections and not
the Barren Circuit Court. As noted above, “[t]ime spent in custody prior to the
commencement of a sentence as a result of the charge that culminated in the
-5- sentence shall be credited by the Department of Corrections toward service of the
maximum term of imprisonment[.]” KRS 532.120(3). “As used in subsections (3)
and (4) of this section, time spent in custody shall include time spent in pretrial
home incarceration pursuant to KRS 431.517, subject to the conditions imposed
by KRS 532.245.” KRS 532.120(7).
“The current language of KRS 532.120(3), which became effective
June 8, 2011, no longer authorizes trial courts to credit felony sentences for time
spent in custody before sentencing. The General Assembly granted that authority
instead to the Department of Corrections.” Sanders v. Commonwealth, 600
S.W.3d 266, 268 (Ky. App. 2020). “An inmate may challenge a failure of the
Department of Corrections to award a sentencing credit under this section or the
amount of credit awarded by motion made in the sentencing court no later than
thirty (30) days after the inmate has exhausted his or her administrative remedies.”
KRS 532.120(9) (emphasis added). The record is silent as to any administrative
remedies pursued by Appellant.
CONCLUSION
Appellant argues that the Barren Circuit Court erred in stating that it
did not intend to place Appellant on home incarceration. The record reveals quite
clearly, however, that the circuit court did not intend to order home incarceration,
but placed Appellant on a curfew enforced by an ankle monitor as a condition of
-6- bond. Even if Appellant was on home incarceration, which we do not find to be
the case, her remedy must be sought administratively before seeking judicial
redress. For these reasons, we find no error and affirm the judgment of the Barren
Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Robert C. Yang Russell Coleman Frankfort, Kentucky Attorney General of Kentucky
Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
-7-