Marvin Mays v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: May 15, 2026
• Docket: 2025-CA-0377
• Status: Published

Opinion

RENDERED: MAY 15, 2026; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0377-MR

MARVIN MAYS APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE JENNIFER WILCOX, JUDGE ACTION NO. 15-CR-000359-002

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: A. JONES, KAREM, AND MOYNAHAN, JUDGES.

MOYNAHAN, JUDGE: Appellant Marvin Mays appeals from the Jefferson

Circuit Court’s judgment sentencing him to ten years in prison. Mays argues that

the circuit court lacked jurisdiction to revoke his probation and impose the

sentence because his initial five-year probationary period, handed down in 2015,

had expired. Because we hold that Mays’ subsequent reincarceration and shock

probation reset the initial probationary period, we affirm. BACKGROUND

Following a grand jury’s indictment for attempted murder and first-

degree robbery, Mays pled guilty to an amended charge of robbery in the second

degree in June 2015. On September 1, 2015, the circuit court granted Mays’

motion for probation and imposed a ten-year sentence, probated for a period of five

years.

Revocation 1

On April 30, 2018, Mays failed to report to the circuit court for a

revocation hearing regarding allegations he violated the conditions of his

probation, so a bench warrant was issued. Though not immediately apprehended,

Mays was eventually arrested and appeared at a revocation hearing on September

5, 2018. The circuit court found that Mays violated his conditions, revoked his

probation, and ordered him to begin serving the ten-year sentence previously

imposed.

1st Motion for Shock Probation

Almost two months later, on October 25, 2018, Mays’ counsel filed a

Motion for Shock Probation, pursuant to KRS1 439.265.2 A hearing was held on

1 Kentucky Revised Statutes. 2 KRS 439.265 governs the procedures courts utilize for “shock probation” when requested by felony-convicted inmates. The statute allows an eligible incarcerated defendant to file a motion for shock probation “not earlier than thirty (30) days nor later than one hundred eighty (180) days after the defendant has been incarcerated[.]” If the circuit court agrees with the defendant

-2- November 29, 2018, and the circuit court granted the motion. The court’s order

noted his supervision would be “on the same terms and conditions imposed at the

time of the original sentencing.”

Revocation 2

In February 2020, the court again received information that Mays had

violated his conditions of probation, and an arrest warrant was issued. On March

10, 2020, the court conducted a hearing, found Mays in violation, and revoked his

probation. The circuit court then sentenced Mays to serve the remainder of his ten-

year sentence.

2nd Motion for Shock Probation

On April 16, 2020, Mays’ counsel filed a Motion for Shock

Probation.3 The court granted the motion on May 21, 2020, and ordered Mays to

“be returned to active supervision on the same terms and conditions imposed at the

seeking relief, it can “suspend the further execution of the sentence and place the defendant on probation upon terms the court determines.” Id. 3 Ordinarily, per KRS 439.265, Mays’ eligibility for seeking shock probation would have expired after reaching the 180-day mark from his initial incarceration in September 2018. However, the revocation of Mays’ shock probation on March 10, 2020, and subsequent re-sentencing the same day, had the effect of resetting his eligibility for shock probation.

-3- August-September 2021 Probation Violations

In a special supervision report dated September 29, 2021, Mays was

yet again directed by his probation officer to report to the Jefferson Circuit Court

regarding alleged probation violations. After being taken into custody, the court

appointed the Public Defender’s Office to represent Mays and set a revocation

hearing date. In response, on October 19, 2021, Mays’ counsel filed a Motion to

be Discharged from Probation Pursuant to KRS 533.020(4). In that motion,

counsel argued that even taking into consideration any tolling, Mays’ probation

had expired on February 11, 2021. A hearing was held on October 20, 2021. The

court orally remarked that the “language in the court’s shock probation order is

sufficiently explicit to require . . . a five-year period of supervision upon shock.”

The court also noted the Kentucky Department of Corrections (DOC) similarly

interpreted the shock probation order, and that it reflected the parties’ intention.

The court denied the motion, but did not revoke Mays’ probation, instead enacting

a modification whereby Mays had to serve sixty days in custody.

January 2022 Probation Violation

On January 13, 2022, the circuit court received information that Mays

had again violated the conditions of his probation. The court issued an arrest

warrant which was finally executed on March 4, 2022. In April 2022, Mays’

counsel made a renewed claim that the court lacked jurisdiction because, pursuant

-4- to KRS 533.020(4), Mays’ probationary period had expired. A hearing was held in

which the court disagreed with defense counsel’s reasoning and denied the motion.

The court instead kept Mays on probation, modifying his conditions such that he

remained in custody pending placement at the Men’s Healing Place.

May 2022 Probation Violation

In May 2022, Mays again violated the conditions of his probation,

was arrested, and brought before the circuit court. The court determined that it

retained jurisdiction because its Order granting shock probation, entered in May

2020, had “returned the Defendant to active supervision on the same terms and

conditions imposed at the time of the original sentencing (i.e. in the Court’s Order

of September 1, 2015).” After a short continuance, the circuit court in August

2022 kept Mays on probation, with a modification that he complete 45 days of

incarceration, with credit for time served.

Denial of Probation Discharge Motion

On January 5, 2023, Mays moved the circuit court to be fully

discharged from probation. A hearing was held on March 28, 2023, in which the

court again denied Mays’ motion, reasoning that shock probation granted after a

revocation creates, in effect, a new sentence which restarts the five-year limitation

on a term of probation.

-5- Revocation 3

On May 18, 2023, the Commonwealth filed a motion to revoke Mays’

probation. After Mays failed to appear, the circuit court issued a bench warrant.

More than 18 months later, Mays was arrested pursuant to the bench warrant and

was subsequently arraigned on January 13, 2025. A revocation hearing was held

on March 3, 2025. Although defense counsel again argued the circuit court lacked

jurisdiction, the court disagreed, relying on the same analysis referenced above.

After making additional findings of fact, the circuit court revoked Mays’ probation

and sentenced him to serve the ten-year sentence previously imposed. This appeal

followed.

STANDARD OF REVIEW

“[G]ranting and revoking probation is not an inherent power in the

courts, but is a power vested in the courts by statute.” Conrad v. Evridge, 315

S.W.3d 313, 316 (Ky. 2010); see also Commonwealth v. Moreland, 681 S.W.3d

102, 107 (Ky. 2023) (“[P]robation is a statutory grant of authority to the

judiciary”). The construction and application of statutes is a matter of law. Estate

of Worrall by Worrall v. J. P. Morgan Bank, N.A., Tr. of James P. Thompson Tr.,

645 S.W.3d 441, 446 (Ky. 2022). Therefore, we review statutes de novo without

deference to the interpretations adopted by lower courts. Commonwealth v.

-6- McBride, 281 S.W.3d 799, 803 (Ky. 2009) (citing Wheeler & Clevenger Oil

Company, Inc. v. Washburn, 127 S.W.3d 609, 612 (Ky. 2004)).

“In cases involving statutory interpretations, the duty of the court is to

ascertain and give effect to the intent of the General Assembly. We are not at

liberty to add or subtract from the legislative enactment or discover meanings not

reasonably ascertainable from the language used.” Commonwealth v. Harrelson,

14 S.W.3d 541, 546 (Ky. 2000).

ANALYSIS

Under KRS 533.010(1), a court has the option to sentence someone

who has been convicted of a crime and not sentenced to death to either probation,

probation with an alternative sentencing plan, or a conditional discharge. KRS

533.010(6) specifies that “[u]pon initial sentencing of a defendant or upon

modification or revocation of probation . . . the court may order probation with the

defendant to serve one” of a list of permissible alternative sentences. Probation

modification and revocation are further addressed in KRS 533.020(1). Under that

provision, the “court may modify or enlarge the conditions” of probation, “or, if

the defendant commits an additional offense or violates a condition, revoke the

sentence at any time prior to the expiration or termination of the period of

probation.” Id. Trial courts are vested with the same authority to modify or

enlarge probation conditions or revoke probation for additional violations by a

-7- defendant on probation with an alternative sentence under KRS 533.020(2). Under

KRS 533.020(4), the maximum probation period for a felony offense is five years.

That provision provides, in relevant part:

The period of probation, probation with an alternative sentence, or conditional discharge shall be fixed by the court and at any time may be extended or shortened by duly entered court order . . . . Such period, with extensions thereof, shall not exceed five (5) years . . . upon conviction of a felony . . . . Upon completion of the probationary period, probation with an alternative sentence, or the period of conditional discharge, the defendant shall be deemed finally discharged, provided no warrant issued by the court is pending against him, and probation, probation with an alternative sentence, or conditional discharge has not been revoked.

A tolling provision, found in KRS 533.040(2), provides that when a

court determines a defendant has violated probation conditions, but then reinstates

probation, “the period between the date of the violation and the date of restoration

of probation or conditional discharge shall not be computed as a part of the period

of probation or conditional discharge.”

As noted above, KRS 439.265 governs the procedures circuit courts

utilize for “shock probation.” However, “[t]he concept of shock probation under

KRS 439.265 is an anomaly. It is a legislative creation which allows the court to

reacquire jurisdiction for this one consideration.” Jones v. Commonwealth, 319

S.W.3d 295, 298 (Ky. 2010) (internal quotation marks and citation omitted). In

other words, KRS 439.265 provides a limited exception to the general rule that “a

-8- trial court loses jurisdiction over a criminal case ten days after entry of a final

judgment.” Commonwealth v. Reed, 577 S.W.3d 467, 470 (Ky. App. 2019)

(citation omitted).

In Conrad, 315 S.W.3d at 317-18, our Supreme Court explained how

the probation statutes work when a court finds that a defendant has violated his or

her conditions and imposes a jail sentence of no more than twelve months, rather

than imposing the original sentence. In that situation, such an order is a

modification of probation that adds incarceration as a new condition, and functions

as a reinstatement of probation, not a revocation. Id. at 317-18. A probation

revocation, on the other hand, “results in imprisonment for the entire balance of the

underlying sentence.” Id. at 318.

Now, case law is clear that a probation period set out by a court “may

not exceed five years.” Green v. Commonwealth, 400 S.W.2d 206, 209 (Ky.

1966). Indeed, our Supreme Court has noted that the purpose of KRS 533.020(4)

is to protect defendants from “being subjected to a probationary status of indefinite

duration[.]” Commonwealth v. Griffin, 942 S.W.2d 289, 291 (Ky. 1997).

However, what is less clear, is how that five-year limitation functions when a

circuit court reacquires jurisdiction over a case in the process of granting shock

probation pursuant to KRS 439.265.

-9- Mays argues that his probation start date must remain that of his

original sentencing date, September 1, 2015, when the circuit court sentenced him

to ten years’ imprisonment, probated for five years. In his view, that date, plus five

years, and any statutorily permitted tolling4 establishes the outward time limit of

his probation. For any date after that, he argues, his probationary period would

have expired, and the circuit court would therefore lack jurisdiction to make a

revocation and impose the underlying prison sentence.

Notably, Mays cites two of our unpublished cases – Gross v.

Commonwealth and Beckman v. Commonwealth5 – that seemingly support his

reasoning. Though non-binding6 on us, we also find the analysis in those cases

unpersuasive. Both cases analyze the limits of shock probation, but they failed to

recognize that shock probation following a revocation does not reinstate the earlier

probationary period. BLACK’S LAW DICTIONARY (9th ed. 2009) defines

“revocation” as “an annulment, cancellation, or reversal . . . [usually] of an act or

4 See KRS 533.040(2) (“Calculation of periods of probation and conditional discharge”). Accounting for tolling, the circuit court’s revocation on March 4, 2025, would have exceeded its authority, if one finds the initial sentencing date of September 1, 2015, starts the five-year limitation on Mays’ probation. Because we find that date is not the proper starting point, the tolling calculation here has no bearing on the case’s outcome. 5 Gross v. Commonwealth, No. 2011-CA-002196-MR, 2013 WL 3329080 (Ky. App. Jun. 28, 2013); Beckman v. Commonwealth of Kentucky, No. 2013-CA-000214-MR, 2014 WL 6881109 (Ky. App. Dec. 5, 2014). 6 Johnson v. Commonwealth, 659 S.W.3d 832, 837 (Ky. App. 2021) (citation omitted) (“[U]npublished opinions are not binding precedent, but only persuasive authority. Therefore, we are not required to follow their holdings.”).

-10- power.” Thus, once a defendant’s previous probation has been revoked – as

opposed to modified – that probationary period no longer exists. After this occurs,

and a defendant’s underlying sentence of incarceration is imposed, the circuit court

loses jurisdiction over the matter.

It is in this context that Mays found himself following three separate

revocations in 2018, 2020, and 2025. Following the first two of those instances,

Mays utilized KRS 439.265 to request shock probation – which allowed the circuit

court to reacquire jurisdiction for the purpose of imposing a new probationary

period “upon terms the court determines.” KRS 439.265(1).

Accordingly, we find the discussion in Gross and Beckman about

whether a request for shock probation serves as a knowing and voluntary waiver of

the five-year probation limit, misplaced. A period of probation imposed after a

revocation – and in response to a KRS 439.265(1) motion – establishes a new

probationary period, one not impacted by any probation days the defendant has

previously served. It is this new period of probation that is limited in length to five

years. Courts, therefore, still cannot unilaterally and indefinitely extend probation

because, following a revocation, they only regain jurisdiction if a defense motion is

made pursuant to KRS 439.265.

Furthermore, our interpretation that a revocation ends the old period

of probation and leads to a new sentence aligns with the common understanding

-11- that allows defendants to seek shock probation – as here – when they are well

beyond 180 days from their initial date of incarceration. In this way our

interpretation protects both a defendant’s ability to seek shock probation and the

court’s flexibility to grant it when appropriate.7 Though perhaps unintended, the

inevitable practical effect of applying Mays’ interpretation would be that fewer

circuit courts would be willing to grant shock probation following a revocation – a

concern voiced by both circuit judges involved in this case. This is important

because our Supreme Court, in analyzing KRS 533.020(4), has made clear that the

underlying purpose of the statute’s probation time-limitation (“to protect the

convicted defendant”) should guide how other aspects of the probationary statutory

framework are interpreted. See Griffin, 942 S.W.2d at 291.

Restating our analysis, we find the fact pattern associated with Mays

from 2018 to 2025 is incompatible with the modification-and-reinstatement

scheme set out by KRS 533.010, 533.020, and 533.040. Moreover, Mays’ reliance

on KRS 533.020(4) is unavailing, as the plain language of that statute makes clear

a defendant is only deemed finally discharged upon completing the probationary

period, “provided no warrant issued by the court is pending against him, and

7 An interpretation that views shock probation following a revocation as a continuation of the previous period of probation might invite the Commonwealth – in situations akin to Mays’ – to begin challenging defendants’ eligibility for shock probation based on KRS 439.265’s restrictive time window.

-12- probation . . . has not been revoked.” Each time Mays’ probation was revoked, and

he was ordered to serve a ten-year sentence, there was simply no old probationary

period to which he could return when he was later granted relief pursuant to KRS

439.265(1).

Finally, Mays argues the language of the circuit court’s order that he

“be returned to active supervision on the same terms and conditions imposed at the

time of the original sentencing” means the probationary periods before and after

his revocation are linked. This, however, overlooks a more straightforward

meaning conveyed by the circuit court. We find the court’s use of “terms” meant

rules and responsibilities – which were intended to be the same as before – and did

not imply that Mays would somehow rejoin his original five-year probationary

period.

CONCLUSION

By granting Mays’ request for shock probation on May 21, 2020, the

circuit court created a new period of probation – separate and apart from the

probation associated with his initial sentence in 2015. Because this new

probationary period for Mays was still in effect on March 3, 2025, the circuit court

retained jurisdiction to make the revocation decision it made. Accordingly, we

affirm.

ALL CONCUR.

-13- BRIEF AND ORAL ARGUMENT BRIEF AND ORAL ARGUMENT FOR APPELLANT: FOR APPELLEE:

Jennifer E. Hubbard Russell M. Coleman Assistant Appellate Defender Attorney General of Kentucky Department of Public Advocacy Louisville, Kentucky James Havey Assistant Solicitor General Frankfort, Kentucky

-14-