RENDERED: APRIL 8, 2022; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0621-MR
DANIEL MORELAND APPELLANT
APPEAL FROM CLINTON CIRCUIT COURT v. HONORABLE DAVID L. WILLIAMS, JUDGE ACTION NOS. 08-CR-00078 AND 08-CR-00079
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION REVERSING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Daniel Moreland (“Appellant”) appeals from an order
of the Clinton Circuit Court revoking his probation. He argues that his sentence
has been fulfilled, and that the circuit court erred in failing to make findings in
support of probation revocation. For the reasons stated below, we reverse the order
of the Clinton Circuit Court revoking Appellant’s probation. FACTS AND PROCEDURAL HISTORY
In 2008, a Clinton County grand jury returned two indictments against
Appellant charging him with various sex offenses. Appellant pleaded guilty to
reduced charges under both indictments, and on April 19, 2010, was sentenced to
“a total of twenty (20) years, serve a total of ten (10) years, balance probated.
Probation is to be supervised for a period of ten (10) years.”
After serving 10 years in prison, Appellant was released and was
purportedly placed on 10 years of probation. On March 15, 2021, the
Commonwealth moved to revoke Appellant’s probation based on numerous
violations. Appellant responded that there was no statutory mechanism to probate
a sentence after time had been served.
A hearing on the matter was conducted on April 8, 2021. Appellant,
through appointed counsel, did not contest the violations. Rather, he argued that
revocation of probation was improper because the statutory law does not allow for
a sentence of 10 years in prison followed by 10 years of probation. The
Commonwealth responded that Appellant accepted the plea offer providing for a
20-year sentence – the last 10 of which were probated – in exchange for
substantially reduced charges. Further, the Commonwealth noted that the
Department of Corrections accepted the sentence. The circuit court revoked
Appellant’s probation, and this appeal followed.
-2- STANDARD OF REVIEW
We review a trial court’s order revoking probation for abuse of
discretion. Commonwealth v. Lopez, 292 S.W.3d 878, 881 (Ky. 2009). Abuse of
discretion is found where the decision is “arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999).
ARGUMENTS AND ANALYSIS
Appellant, through counsel, argues that the Clinton Circuit Court
committed reversible error in revoking his probation. He asserts that instead of
revoking his probation, the court should have ordered that his sentence was
fulfilled. As a basis for this claim, Appellant directs our attention to Kentucky
Revised Statutes (“KRS”) 533.040(1), which provides that “probation . . .
commences on the day it is imposed.” Appellant notes that the order addressing
probation was entered on April 22, 2010,1 and it is upon this day that the
probationary period should have commenced. Appellant also cites KRS
533.020(4), which states that the period of probation shall not exceed five years, or
the time necessary to complete restitution. No restitution was ordered in this case.
Finally, Appellant directs us to Woll v. Commonwealth ex rel. Meredith, 284 Ky.
1 Judgment and sentence were entered on April 19, 2010. Though not shown in the record, it appears that Appellant moved for probation shortly thereafter. This resulted in an order of probation entered on April 22, 2010.
-3- 783, 785, 146 S.W.2d 59, 60 (1940), which he contends holds that the courts of the
Commonwealth may not override the legislative determination that a defendant
could not be sentenced to both imprisonment and probation. In sum, Appellant
argues that probation after incarceration is not authorized by the Legislature, that
he served 10 years as required by the sentence entered by the Clinton Circuit
Court, and that he has fulfilled his sentence and is no longer subject to probation.
The question for our consideration is whether the sentencing scheme
created by Kentucky General Assembly allows for a period of probation after
service of time in prison. We conclude that it does not. “When a person who has
been convicted of an offense or who has entered a plea of guilty to an offense is
not sentenced to imprisonment, the court may sentence him to probation[.]” KRS
533.020(2) (emphasis added). “[P]robation . . . commences on the day it is
imposed[,]” KRS 533.040(1), and, aside from a limited exception not applicable
herein, probation for a felony conviction shall not exceed five years. KRS
533.020(4). As a general rule, a trial court loses jurisdiction over a criminal
case ten days after entry of a final judgment. Kentucky Rules of Civil Procedure
(“CR”) 59.05; Commonwealth v. Gaddie, 239 S.W.3d 59, 62 (Ky. 2007).
Sentencing options include 1) imprisonment, 2) probation, 3)
probation with alternative sentencing, and 4) conditional discharge. KRS
-4- 533.010(2).2 The General Assembly has provided no option for a term of
imprisonment followed by a period of probation, also known as a “split sentence.”
See Woll, supra, holding that the Legislature has not provided for sentence
splitting.3
Probation is also to be distinguished from parole:
[P]robation and parole are distinct from one another. Probation is a sentencing alternative; the trial court . . . first decides on a sentence of imprisonment . . . but then imposes conditions for release and supervision – in lieu of implementation of incarceration – at sentencing. The power to enter a judgment sentencing a defendant to a sentence of probation rests entirely with trial courts. But once a defendant is incarcerated, the actual length of [a defendant’s] imprisonment is determined by the parole board . . . . [T]he power to grant parole is a purely executive function. Kentucky courts have . . . conceptualized probation as the suspension of the imposition of a sentence while, after imposition, parole suspends execution of a sentence[.]
Edwards v. Harrod, 391 S.W.3d 755, 760-61 (Ky. 2013) (internal quotation marks,
footnotes, and citations omitted) (emphasis in original).
Further,
[w]hether recommended by an errant jury or by the parties through a plea agreement, a sentence that is outside the limits established by the statutes is still an illegal sentence. Furthermore, an illegal sentence cannot
2 See also Kentucky Court of Justice judgment and sentencing form AOC-445. 3 Woll was rendered 82 years ago and addressed the statutory law as it existed at the time. As such, its precedential value is limited.
-5- stand uncorrected. Because it is the trial judge, and not the jury or the prosecutor or the defendant, that actually imposes a sentence by signing his or her name to the final judgment, it is to the judiciary that the legislative commandments . . . are directed. The fact that [the defendant] agreed to an illegal sentence did not matter.
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RENDERED: APRIL 8, 2022; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0621-MR
DANIEL MORELAND APPELLANT
APPEAL FROM CLINTON CIRCUIT COURT v. HONORABLE DAVID L. WILLIAMS, JUDGE ACTION NOS. 08-CR-00078 AND 08-CR-00079
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION REVERSING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Daniel Moreland (“Appellant”) appeals from an order
of the Clinton Circuit Court revoking his probation. He argues that his sentence
has been fulfilled, and that the circuit court erred in failing to make findings in
support of probation revocation. For the reasons stated below, we reverse the order
of the Clinton Circuit Court revoking Appellant’s probation. FACTS AND PROCEDURAL HISTORY
In 2008, a Clinton County grand jury returned two indictments against
Appellant charging him with various sex offenses. Appellant pleaded guilty to
reduced charges under both indictments, and on April 19, 2010, was sentenced to
“a total of twenty (20) years, serve a total of ten (10) years, balance probated.
Probation is to be supervised for a period of ten (10) years.”
After serving 10 years in prison, Appellant was released and was
purportedly placed on 10 years of probation. On March 15, 2021, the
Commonwealth moved to revoke Appellant’s probation based on numerous
violations. Appellant responded that there was no statutory mechanism to probate
a sentence after time had been served.
A hearing on the matter was conducted on April 8, 2021. Appellant,
through appointed counsel, did not contest the violations. Rather, he argued that
revocation of probation was improper because the statutory law does not allow for
a sentence of 10 years in prison followed by 10 years of probation. The
Commonwealth responded that Appellant accepted the plea offer providing for a
20-year sentence – the last 10 of which were probated – in exchange for
substantially reduced charges. Further, the Commonwealth noted that the
Department of Corrections accepted the sentence. The circuit court revoked
Appellant’s probation, and this appeal followed.
-2- STANDARD OF REVIEW
We review a trial court’s order revoking probation for abuse of
discretion. Commonwealth v. Lopez, 292 S.W.3d 878, 881 (Ky. 2009). Abuse of
discretion is found where the decision is “arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999).
ARGUMENTS AND ANALYSIS
Appellant, through counsel, argues that the Clinton Circuit Court
committed reversible error in revoking his probation. He asserts that instead of
revoking his probation, the court should have ordered that his sentence was
fulfilled. As a basis for this claim, Appellant directs our attention to Kentucky
Revised Statutes (“KRS”) 533.040(1), which provides that “probation . . .
commences on the day it is imposed.” Appellant notes that the order addressing
probation was entered on April 22, 2010,1 and it is upon this day that the
probationary period should have commenced. Appellant also cites KRS
533.020(4), which states that the period of probation shall not exceed five years, or
the time necessary to complete restitution. No restitution was ordered in this case.
Finally, Appellant directs us to Woll v. Commonwealth ex rel. Meredith, 284 Ky.
1 Judgment and sentence were entered on April 19, 2010. Though not shown in the record, it appears that Appellant moved for probation shortly thereafter. This resulted in an order of probation entered on April 22, 2010.
-3- 783, 785, 146 S.W.2d 59, 60 (1940), which he contends holds that the courts of the
Commonwealth may not override the legislative determination that a defendant
could not be sentenced to both imprisonment and probation. In sum, Appellant
argues that probation after incarceration is not authorized by the Legislature, that
he served 10 years as required by the sentence entered by the Clinton Circuit
Court, and that he has fulfilled his sentence and is no longer subject to probation.
The question for our consideration is whether the sentencing scheme
created by Kentucky General Assembly allows for a period of probation after
service of time in prison. We conclude that it does not. “When a person who has
been convicted of an offense or who has entered a plea of guilty to an offense is
not sentenced to imprisonment, the court may sentence him to probation[.]” KRS
533.020(2) (emphasis added). “[P]robation . . . commences on the day it is
imposed[,]” KRS 533.040(1), and, aside from a limited exception not applicable
herein, probation for a felony conviction shall not exceed five years. KRS
533.020(4). As a general rule, a trial court loses jurisdiction over a criminal
case ten days after entry of a final judgment. Kentucky Rules of Civil Procedure
(“CR”) 59.05; Commonwealth v. Gaddie, 239 S.W.3d 59, 62 (Ky. 2007).
Sentencing options include 1) imprisonment, 2) probation, 3)
probation with alternative sentencing, and 4) conditional discharge. KRS
-4- 533.010(2).2 The General Assembly has provided no option for a term of
imprisonment followed by a period of probation, also known as a “split sentence.”
See Woll, supra, holding that the Legislature has not provided for sentence
splitting.3
Probation is also to be distinguished from parole:
[P]robation and parole are distinct from one another. Probation is a sentencing alternative; the trial court . . . first decides on a sentence of imprisonment . . . but then imposes conditions for release and supervision – in lieu of implementation of incarceration – at sentencing. The power to enter a judgment sentencing a defendant to a sentence of probation rests entirely with trial courts. But once a defendant is incarcerated, the actual length of [a defendant’s] imprisonment is determined by the parole board . . . . [T]he power to grant parole is a purely executive function. Kentucky courts have . . . conceptualized probation as the suspension of the imposition of a sentence while, after imposition, parole suspends execution of a sentence[.]
Edwards v. Harrod, 391 S.W.3d 755, 760-61 (Ky. 2013) (internal quotation marks,
footnotes, and citations omitted) (emphasis in original).
Further,
[w]hether recommended by an errant jury or by the parties through a plea agreement, a sentence that is outside the limits established by the statutes is still an illegal sentence. Furthermore, an illegal sentence cannot
2 See also Kentucky Court of Justice judgment and sentencing form AOC-445. 3 Woll was rendered 82 years ago and addressed the statutory law as it existed at the time. As such, its precedential value is limited.
-5- stand uncorrected. Because it is the trial judge, and not the jury or the prosecutor or the defendant, that actually imposes a sentence by signing his or her name to the final judgment, it is to the judiciary that the legislative commandments . . . are directed. The fact that [the defendant] agreed to an illegal sentence did not matter. A sentence that lies outside the statutory limits is an illegal sentence, and the imposition of an illegal sentence is inherently an abuse of discretion. Our courts must not be complicit in the violation of the public policy embedded in our sentencing statutes by turning a blind eye to an unlawful sentence, regardless of a defendant’s consent. Because the plea agreement violated the law, it [was] a contract which our courts may not enforce. Further, an appellate court is not bound to affirm an illegal sentence just because the issue of the illegality was not presented to the trial court.
Phon v. Commonwealth, 545 S.W.3d 284, 302 (Ky. 2018) (internal
quotation marks and citations omitted) (emphasis added).
The Clinton Circuit Court’s order of probation after imprisonment
was contrary to KRS Chapter 533. As such, it was an “illegal sentence” and the
revocation of the probation inherently an abuse of discretion. Phon, supra. It
matters not that the sentence was bargained for in exchange for a guilty plea, nor
that it was accepted by the Department of Corrections.
“In cases involving statutory interpretations, the duty of the court is to
ascertain and give effect to the intent of the General Assembly.” Commonwealth v.
Harrelson, 14 S.W.3d 541, 546 (Ky. 2000). The courts may not “add or subtract
from the legislative enactment or discover meanings not reasonably ascertainable
-6- from the language used.” Id. (citation omitted). KRS Chapter 533 is not
ambiguous. As the circuit court was not vested with authority to order probation
after imprisonment, Appellant was never on probation after his release from prison.
As such, he could not have violated the conditions thereof.
CONCLUSION
Though Appellant was sentenced to 20 years in prison, he was ordered
to serve only 10 years of the sentence. We may not now reach back through the
corridor of time and impose a sentence in excess of the term of imprisonment
ordered on April 19, 2010 – a term which Appellant has already completed.
Further, there is no lawful basis for remanding the matter for resentencing after
Appellant’s term of imprisonment was completed. The imposition of a
probationary period after service of imprisonment is ex facie illegal, and
constitutes an abuse of discretion. We hold as a matter of law that a trial court may
not order a term of imprisonment followed by a period of probation. Appellant,
therefore, was not on probation upon his release from incarceration, and could not
have violated its purported terms. As noted in Phon, 545 S.W.3d at 302, “an
illegal sentence cannot stand uncorrected.” Appellant’s remaining argument is
moot. For these reasons, we reverse the April 8, 2021 order of the Clinton Circuit
Court revoking Appellant’s probation.
-7- ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Molly Mattingly Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky
-8-