Commonwealth of Kentucky v. Lonnie Allen Harris

• Court: Court of Appeals of Kentucky
• Decided: August 22, 2025
• Docket: 2024-CA-0442
• Status: Unpublished

Opinion

RENDERED: AUGUST 22, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0442-MR

COMMONWEALTH OF KENTUCKY APPELLANT

APPEAL FROM CASEY CIRCUIT COURT v. HONORABLE RODERICK MESSER, SPECIAL JUDGE ACTION NO. 22-CR-00142

LONNIE ALLEN HARRIS APPELLEE

OPINION REVERSING

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BEFORE: THOMPSON, CHIEF JUDGE; KAREM AND TAYLOR, JUDGES.

TAYLOR, JUDGE: The Commonwealth of Kentucky brings this appeal from the

March 12, 2024, Order of the Casey Circuit Court which granted Lonnie Allen

Harris’s post-judgment motion modifying the Final Judgment entered in the case

under Kentucky Rules of Civil Procedure (CR) 59.05. The Commonwealth argues

the court incorrectly applied recent Supreme Court precedent to reduce the length

of Harris’s lawfully imposed sentence. For the reasons stated, we reverse. BACKGROUND

On September 20, 2023, the Casey Circuit Court entered a Judgment

and Sentence on Plea of Guilty by Harris. The court adjudged Harris to be guilty

of one count of assault in the second degree; four counts of assault in the third

degree; one count of assault in the fourth degree; one count of trafficking in the

first degree, methamphetamine, first offense; two counts of wanton endangerment

in the second degree; one count of harassing communications; one count of public

intoxication; one count of falsely reporting an incident; and one count of disorderly

conduct in the second degree. The court imposed a ten-year sentence for the count

of assault in the second degree and a ten-year sentence for the count of trafficking

in a controlled substance in the first degree, to run consecutively for a total of

twenty years. The remaining counts were ordered to run concurrently for a total

sentence of twenty years. The court then ordered, “This sentence shall run

consecutive to 95-CR-00065 (Casey), 97-CR-00047 (Casey), 97-CR-00048

(Casey), 97-CR-00049 (Casey), 00-CR-00059 (Casey), 08-CR-00012 (Casey), 11-

CR-00079 (Casey), 21-CR-00023 (Casey) and any other sentence imposed on the

Defendant.” Record at 131.

Relevant to this appeal is Case No. 21-CR-00023. In that case, Harris

entered a guilty plea on February 28, 2022, to various charges and was not

sentenced until May 23, 2022. He was then sentenced to thirteen-years in prison.

-2- However, while his sentencing was pending in 2022, he committed the various

crimes in this case which resulted in the twenty-year sentence in June of 2023,

which the court ordered to be served consecutive with his thirteen-year sentence in

Case No. 21-CR-00023, for a total of thirty-three years.

On September 25, 2023, Harris timely filed a pro se motion pursuant

to CR 59.05 to amend the final judgment. He argued that Kentucky Revised

Statutes (KRS) 532.110(1)(c) required that his aggregate sentence not exceed its

statutory cap, and the court’s Judgment and Sentence violated this limitation. He

noted that his sentence in this case was ordered to run consecutively with the case

for which he was on bond awaiting sentencing when he incurred the new charges,

Case No. 21-CR-00023. He stated the cumulative total term of years to serve

following the court’s Judgment and Sentence was thirty-three-years’ imprisonment

for class C and D felonies. Harris argued the recent Supreme Court case of

Kimmel v. Commonwealth, 671 S.W.3d 230 (Ky. 2023) was controlling. He

asserted that Kimmel stands for the proposition that while KRS 533.060(3) may

require sentences to run consecutively, the resulting total term of years cannot

violate the maximum aggregate sentence cap in KRS 532.110(1)(c). Id. at 239.

Thus, Harris argued then as he now does on appeal, that his maximum sentence

cannot exceed twenty years.

-3- The Commonwealth opposed the CR 59.05 motion to alter the

sentence, arguing that Harris’s case was distinguishable from Kimmel in that the

instant sentence was the result of a plea agreement, and the Commonwealth’s Offer

on a Plea of Guilty accepted by Harris provided that the sentence was to run

consecutively with the sentence previously imposed in Case No. 21-CR-00023.

The Commonwealth emphasized that because Harris committed the present

offenses while released on bond in Case No. 21-CR-00023,1 KRS 533.060(3)

required that the sentences must run consecutively. The Commonwealth also

distinguished Kimmel from this case, noting that in Kimmel the charges from two

separate indictments were tried together in a joint trial which resulted in one

sentence. In Harris’s case, however, the Commonwealth observed that the

sentences were imposed in different cases and on different dates, and was not a

situation where the defendant received a single sentence in excess of twenty years.

Additionally, Harris received the benefit of reducing the time for his parole

eligibility upon the Commonwealth dismissing Harris’s first-degree persistent

felony offender charge upon entering the guilty plea.

1 The Commonwealth of Kentucky’s response set forth these facts: Lonnie Allen Harris was sentenced to serve thirteen years in Casey County Case No. 21-CR-00023, in a judgment entered on June 23, 2022. The Commonwealth reported that the judgment indicated that Harris entered a guilty plea on February 28, 2022, and appeared before the court for final sentencing on May 23, 2022. Record at 142. In the case at bar, the indictment alleged that the criminal acts to which Harris pleaded guilty all occurred on or about May 10, 2022, which was while Harris was on bond awaiting sentencing in case No. 21-CR-00023.

-4- In the court’s March 12, 2024, Order, the court held, “[i]n the case

before the court, both of the Defendant’s cases were resolved by plea agreements

and not by a single jury trial. However[,] a fair reading [of] the Kimmel opinion

does not point to any reason that Kimmel is not controlling of the case before the

Court.” Record at 188. The trial court sustained the CR 59.05 motion and set

aside the twenty-year sentence, and imposed a sentence of seven years to be served

consecutively to the thirteen-year sentence in Case No. 21-CR-00023 for a total of

twenty years. This appeal follows.

STANDARD OF REVIEW

“A trial court’s ruling on a CR 59.05 motion to alter, amend or vacate

is reviewed under an abuse of discretion standard.” Hall v. Rowe, 439 S.W.3d 183,

186 (Ky. App. 2014). “‘The test for abuse of discretion is whether the trial judge’s

decision was arbitrary, unreasonable, unfair[,] or unsupported by sound legal

principles.’” Id. (quoting Woodard v. Commonwealth, 147 S.W.3d 63, 67 (Ky.

2004)). Additionally, as applicable to this case, to the extent the court’s ruling

looks to the interpretation of a statute, this constitutes a question of law for which

our review is de novo. William C. Eriksen, P.S.C. v. Ky. Farm Bureau Mutual Ins.

Co., 336 S.W.3d 909, 911 (Ky. App. 2010).

-5- ANALYSIS

The Commonwealth argues that the circuit court’s decision was not

supported by Kentucky law regarding sentencing of cumulative offenses because

the Kimmel opinion is factually distinguishable. In Kimmel, the Supreme Court set

out to harmonize the sentencing cap statute, KRS 532.110(1)(c), with the statute

that requires that particular sentences not be run concurrently, KRS 533.060. The

sentencing cap statute, KRS 532.110(1)(c), stated in relevant part, that: “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 is imposed[.]” KRS

532.080(6)(b) provides that the maximum term of imprisonment authorized for a

Class C felony as enhanced is twenty years. The highest class of crime for the

charges in Harris’s case is a class C felony (both assault in the second degree and

trafficking in a controlled substance in the first degree, 2 grams or more of

methamphetamine, first offense).

KRS 533.060(3) also was applicable to Harris’s sentencing because he

was on bail awaiting sentencing in Case No. 21-CR-00023 when he committed the

offenses in this case. That provision states:

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

-6- committed while awaiting trial shall not run concurrently with confinement for the offense for which the person is awaiting trial.

A defendant is considered “awaiting trial” during the time period in which he is

“awaiting sentencing.” Cosby v. Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004).

In Kimmel, 671 S.W.3d at 239, the Supreme Court held, “[t]o harmonize and give

effect to both statutes, we conclude that while sentences under KRS 533.060(3)

must be consecutive, the resulting total term of years cannot violate the maximum

aggregate sentence cap set forth in KRS 532.110(1)(c).” Harris maintains that the

trial court was correct in following the plain words of the Kimmel opinion in

requiring that the statutory cap be applied.

The issue presented in this appeal is whether the statutory cap applies

when a new sentence is to run consecutively under KRS 533.060(3), to a

previously entered sentence. Based on our review of applicable law, we do not

believe the cap set out in KRS 532.110(1)(c) applies in this case. We agree with

the Commonwealth that the facts of Harris’s case are significantly distinguishable

from Kimmel. As the Commonwealth observed, Kimmel had his various felony

charges tried together. Harris had already pleaded guilty or had been sentenced in

the previous cases when he committed the new offenses; therefore, the new

charges could not have been tried with those from his prior conviction. The

distinction matters because the Supreme Court has clearly held that the sentencing

-7- cap in KRS 532.110(1)(c) does not extend to sentences resulting from previous

convictions. Johnson v. Commonwealth, 553 S.W.3d 213, 219-20 (Ky. 2018).

In Johnson, 553 S.W.3d at 219-20, the trial court ordered that the

defendant’s sentence would run consecutively to all other sentences. Because

Johnson had a prior conviction in which he was sentenced to ten years, the

aggregate term of both sentences exceeded twenty years. Id. However, the

Supreme Court expressly stated that KRS 532.110(1)(c) did not prohibit running

the defendant’s sentences consecutively. Johnson, 553 S.W.3d at 219-20. The

Court held that KRS 532.110(1)(c), did not mandate that the aggregate of the

defendant’s two consecutive sentences be capped at the twenty-year maximum,

holding that KRS 532.110(1)(c) did not apply to sentences arising from separate

indictments and trials. Johnson, 553 S.W.3d at 219-20.

We believe this logic also extends to sentences arising from separate

indictments that result in separate plea agreements. If one were to extend Harris’s

argument to its illogical extreme, had he been sentenced to twenty-years’

imprisonment (rather than thirteen) in Case No. 21-CR-00023, he would not have

been subject to any additional punishment for the crimes he committed in this case,

while on bond, pending his final sentencing in Case No. 21-CR-00023. In other

words, he would have been free to commit serious crimes without any legal

-8- consequence. We do not believe that was the intent of the legislature nor can we

condone such a result.

CONCLUSION

For the reasons stated, the circuit court erred in granting Harris’s CR

59.05 motion as a matter of law. The circuit court was not required to reduce

Harris’s sentence pursuant to KRS 532.110 since his aggregate sentence in this

case did not exceed twenty years, and it was permissible to run that sentence

consecutive to those sentences from previous cases. Therefore, we reverse the

order granting Harris’s CR 59.05 motion and reinstate his original sentence as set

out in the September 20, 2023, Judgment and Sentence.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Russell Coleman Travis Bewley Attorney General of Kentucky Assistant Public Advocate Department of Public Advocacy J. Grant Burdette Frankfort, Kentucky Assistant Solicitor General Office of the Solicitor General Frankfort, Kentucky

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