Messiah Burton v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: November 2, 2023
• Docket: 2022 CA 000436
• Status: Unknown

Opinion

RENDERED: NOVEMBER 3, 2023; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0436-MR

MESSIAH BURTON APPELLANT

APPEAL FROM FULTON CIRCUIT COURT v. HONORABLE TIMOTHY A. LANGFORD, JUDGE ACTION NO. 20-CR-00065

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION VACATING AND REMANDING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND JONES, JUDGES.

JONES, JUDGE: Messiah Burton, a youthful offender, appeals from the judgment

and sentence entered by the Fulton Circuit Court on October 29, 2021. The trial

court entered this second judgment and sentence after Burton had been granted

parole following the trial court’s first judgment and sentence on March 17, 2021.

After a thorough review of the record and the law, we vacate the judgment entered

on October 29, 2021, and remand with instructions to the trial court to allow

Burton to serve his parole. I. BACKGROUND

On August 3, 2020, Burton was charged via a juvenile petition with

first-degree robbery1 and first-degree wanton endangerment.2 The complaint

alleged that Burton, then seventeen years old, placed a gun to Antwian

Porterfield’s head and demanded money for himself and his associate, Michael

Downing. Downing searched Porterfield’s pockets while Burton continued to hold

the gun to Porterfield’s head. After taking $275.00 from Porterfield, Burton and

Downing fled in a white SUV. Burton was arrested shortly thereafter.

After Burton’s arrest, the Commonwealth, through the Fulton County

Attorney, moved the district court to proceed against Burton as an alleged youthful

offender pursuant to KRS 635.020. Burton qualified as an alleged youthful

offender on two separate grounds. KRS 635.020(2) requires the court, on motion

from the Commonwealth, to proceed against a child as a youthful offender if the

child is fourteen years old or older at the time of the offense and has been charged

with a capital offense, a Class A felony, or a Class B felony. Similarly, KRS

635.020(4) triggers the possibility of youthful offender status if the child is at least

fourteen years old at the time of the offense and has used a firearm in the

commission of a felony.

1 Kentucky Revised Statute (KRS) 515.020, a Class B felony. 2 KRS 508.060, a Class D felony.

-2- Following a hearing on the motion comporting with KRS 640.010, the

district court found there was probable cause to believe Burton committed a Class

B felony when he participated in an armed robbery during a home invasion. The

district court thereafter transferred Burton to the circuit court to be tried as a

youthful offender. One week later, the Fulton Grand Jury indicted Burton for first-

degree robbery.

Following a short period of discovery, Burton signed a negotiated

guilty plea in which the Commonwealth agreed to amend the charge to a single

count of criminal facilitation of first-degree robbery, a Class D felony.3 Burton

agreed to plead guilty to that offense and to serve the four-year term recommended

by the Commonwealth. The trial court accepted this guilty plea in open court on

January 28, 2021, and the written record shows these terms were agreed upon and

signed by Burton, the Commonwealth, and the circuit judge on February 8, 2021.

(Record (R.) at 65-68.) The trial court ordered the Department of Juvenile Justice

(DJJ) to prepare Burton’s presentence investigation report (PSI) for the next

hearing date, which was March 11th.

Burton’s hearing before the trial court on March 11, 2021, involved

more than the PSI. At that point, Burton had been in custody 222 days, and the

parties disagreed about where Burton should be held until June 8th, which was

3 KRS 506.080.

-3- Burton’s eighteenth birthday. Burton argued for probation. The Commonwealth

disagreed and argued that Burton should stay with the DJJ, stating that Burton

would live in his mother’s home in Tennessee if he were probated. The trial court

ultimately stated that it wished “to get to the bottom of” the victim’s story and that

it wanted more facts. The trial court then ordered Burton to be confined to the DJJ

until after his eighteenth birthday. The DJJ stated it could hold Burton until the

earliest court date after his eighteenth birthday, which was June 10th.

Following this hearing, on March 17, 2021, the trial court entered a

document titled “Judgment & Sentence on Plea of Guilty – Youthful Offender.”

(R. at 71.) The judgment discussed the amended charge of facilitation of first-

degree robbery and how the defendant agreed with the contents of the PSI prepared

by the DJJ. The judgment also discussed how the defendant was to be returned to

DJJ for a treatment program not to exceed five months past the defendant’s

eighteenth birthday, at which time the defendant would be “returned to the

sentencing court for determination as to whether or not the youthful offender shall

be placed on probation or conditional discharge, or whether the youthful offender

should be incarcerated in an institution operated by the Department of

Corrections.” (R. at 72.) Of particular note, the judgment stated the following:

IT IS HEREBY THE ORDER OF THIS COURT that insufficient cause having been shown why judgment should not be pronounced, IT IS ADJUDGED BY THE

-4- COURT that the defendant is GUILTY of the following charges:

KRS 506.080 Criminal Facilitation to Robbery, 1st Degree, CDF[4] – 4 Years

(R. at 72.) Finally, the judgment ordered that

further sentencing pursuant to KRS 640.030 and other applicable statutes shall be had for the defendant after completion of treatment with [DJJ] and him being returned to this Court for purposes of sentencing on a date agreed to, either on June 10, 2021 or such other date as [DJJ] may request . . . .

(R. at 73.) The “further sentencing” contemplated in the judgment did not take

place on June 10th, however, as the trial court entered an agreed order continuing

the matter for five months so Burton could continue his education and treatment

with DJJ. This order explicitly directed that Burton shall be returned to the trial

court “for a hearing pursuant to KRS 640.030” on October 28, 2021. (R. at 84.)

On June 15, 2021, the Kentucky Parole Board voted to recommend

parole for Burton. (R. at 85.) Because he was released on parole and there was no

longer a need for the October 28, 2021 hearing, Burton moved to have the hearing

removed from the docket. On October 26, 2021, the trial court responded by

entering a nunc pro tunc order, dated June 7, 2021, which required Burton to

remain with DJJ for five months before being returned to the trial court on October

28, 2021, for a hearing pursuant to KRS 640.030. (R. at 89.) The trial court issued

4 Although not explicitly discussed in the record, we infer that “CDF” means Class D Felony.

-5- a second order on that date which questioned the authority of the Kentucky Parole

Board to grant parole in this case. The order then directed DJJ, defense counsel,

and any “parole officer” (quotation marks original to the order) to serve a copy of

the summons to Burton, with the goal of ensuring he would be present in court on

October 28th. If Burton failed to appear, the trial court indicated it would issue a

warrant for his arrest. (R. at 90-91.)

During the hearing on October 28, 2021, before Burton’s arrival in

court, the trial court expressed its belief that Burton had not yet been sentenced,

and the Kentucky Parole Board had thereby issued an “illegal parole.” An

unnamed person in the courtroom stated, “we see that a lot with [youthful

offenders].” The trial court responded, “that’s the first time I’ve seen it, and it’ll

be the last time I see it.” When Burton arrived, the trial court asked, “How is he

getting paroled when he was never sentenced?” Defense counsel asserted that

Burton had been sentenced, which the trial court denied, saying there was no

document in the file saying Burton was sentenced to four years. Defense counsel

then stated that Probation and Parole had determined Burton had served twenty

percent of his sentence and paroled him. The trial court reiterated that Burton was

adjudged guilty, but he had yet to be sentenced. The trial court ultimately issued

another judgment on October 29, 2021, sentencing Burton to four-years’

-6- imprisonment which was dated nunc pro tunc to June 10th, five days before Burton

was paroled. This appeal followed.

II. STANDARD OF REVIEW

The primary issue in this case is whether the trial court was correct in

its interpretation of the juvenile sentencing statutes. Statutory construction “is an

issue of law which we address de novo.” Shawnee Telecom Resources, Inc. v.

Brown, 354 S.W.3d 542, 551 (Ky. 2011).

III. ANALYSIS

For his sole argument on appeal, Burton contends the trial court erred

when it entered a second judgment on his plea of guilty. He argues the trial court

had already sentenced him on March 17, 2021, and it had no authority to sentence

him again after he was paroled on June 15, 2021. We agree. From the evidence in

the record, it appears that the trial court arrived at two incorrect conclusions. The

first was that the judgment and sentence the trial court issued on March 17th was

not a final judgment and sentence, and instead the age-eighteen hearing would

provide the basis for a final judgment and sentence. The second incorrect

conclusion, related to the first, was that the Kentucky Parole Board did not have

the authority to parole Burton before his age-eighteen hearing.

-7- The statute governing the sentencing of youthful offenders, referenced

multiple times by the trial court, is KRS 640.030. The pertinent provisions of this

statute read as follows:

[A]ny sentence imposed upon the youthful offender shall be served in a facility or program operated or contracted by the Department of Juvenile Justice until the expiration of the sentence, the youthful offender is paroled, the youthful offender is probated, or the youthful offender reaches the age of eighteen (18), whichever first occurs. The Department of Juvenile Justice shall take custody of a youthful offender, remanded into its custody, within sixty (60) days following sentencing. If an individual sentenced as a youthful offender attains the age of eighteen (18) prior to the expiration of his sentence, and has not been probated or released on parole, that individual shall be returned to the sentencing court. At that time, the sentencing court shall make one (1) of the following determinations:

(a) Whether the youthful offender shall be placed on probation or conditional discharge;

(b) Whether the youthful offender shall be returned to the Department of Juvenile Justice to complete a treatment program, which treatment program shall not exceed the youthful offender’s attainment of the age of eighteen (18) years and five (5) months. At the conclusion of the treatment program, the individual shall be returned to the sentencing court for a determination under paragraph (a) or (c) of this subsection; or

(c) Whether the youthful offender shall be incarcerated in an institution operated by the Department of Corrections[.]

KRS 640.030(2).

-8- Two principles consequential to this appeal may be gleaned from the

first part of the quoted portion of KRS 640.030(2). The first is that “any sentence

imposed upon the youthful offender” results in transfer to a facility operated by

DJJ until the youthful offender is eighteen. In the matter currently before us, if the

trial court did not sentence Burton on March 17th, then it is unclear how the trial

court could exercise the authority to send him to DJJ pursuant to this statute.

Furthermore, despite the trial court’s protestations to the contrary,5 the March 17th

document in the record bears all the marks of a bona fide judgment and sentence in

a youthful offender case.

First, the March 17th document labels itself as a judgment and

sentence – a “Judgment & Sentence on Plea of Guilty.” It discusses Burton’s

guilty plea and acknowledges that Burton did not dispute the PSI. The document

finds Burton guilty of criminal facilitation of robbery and pronounces a four-year

sentence. “A final or appealable judgment is a final order adjudicating all the

rights of all the parties in an action or proceeding, or a judgment made final under

Rule 54.02.” Commonwealth v. Carneal, 274 S.W.3d 420, 427 (Ky. 2008)

5 We are obligated to point out here that the writings of the trial court carry far more weight than any ruminations the trial court may voice in open court. “Circuit courts speak ‘only through written orders entered upon the official record.’” Oakley v. Oakley, 391 S.W.3d 377, 378 (Ky. App. 2012) (quoting Kindred Nursing Centers Ltd. P’ship v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010)).

-9- (quoting CR6 54.01). “Final judgment in a criminal case means sentence. The

sentence is the judgment.” Id. (quoting Burton v. Stewart, 549 U.S. 147, 156, 127

S. Ct. 793, 798, 166 L. Ed. 2d 628 (2007) (quoting Berman v. United States, 302

U.S. 211, 212, 58 S. Ct. 164, 166, 82 L. Ed. 204 (1937))). The March 17th

judgment adjudicates “all issues relating to [Burton’s] guilt and his sentence[.]”

Clark v. Commonwealth, 476 S.W.3d 895, 899 (Ky. App. 2015). Finally, the

March 17th document contemplates Burton’s return to the trial court for further

sentencing after his eighteenth birthday pursuant to KRS 640.030. The trial court

apparently believed that this future age-eighteen hearing would be Burton’s final

sentencing, but this belief is inconsistent with our precedent.

We are unconvinced that the statutorily mandated 18- year-old hearing is final sentencing. . . . The 18-year-old hearing is simply a “second look” at the manner in which the youthful offender is serving his sentence and provides the trial court the opportunity to consider alternative methods of fulfilling the sentence, other than simply transferring the youthful offender to adult corrections.

Carneal, 274 S.W.3d at 427-28. For these reasons, the trial court erred when it

determined that the March 17th document did not comprise a valid final judgment

and sentence.

The second significant principle in KRS 640.030(2) is that a youthful

offender is returned to the trial court for a hearing at age eighteen – unless the

6 Kentucky Rule of Civil Procedure.

-10- youthful offender has been “probated or released on parole.” The trial court

expressed its disbelief that parole could occur prior to the age-eighteen hearing,

stating “that’s the first time I’ve seen it,” yet that is exactly what is contemplated in

the statute as authorized by the General Assembly. The Kentucky Supreme Court

has confirmed that this is the correct interpretation of the statute. “KRS 640.030(2)

indicates that youthful offenders may be paroled prior to their 18-year-old

hearing.” Edwards v. Harrod, 391 S.W.3d 755, 762 (Ky. 2013).

Compounding its earlier errors, the trial court then erroneously

concluded Burton was on an “illegal parole.” We are somewhat disturbed that the

trial court’s response to a purportedly “illegal parole” was effectively to ignore the

order of the Kentucky Parole Board and to bring Burton back under its authority

using a series of nunc pro tunc orders. For the trial court to unilaterally decide to

override the order granting parole infringes on the strong separation of powers

inherent in Sections 27 and 28 of the Kentucky Constitution; see, e.g., Prater v.

Commonwealth, 82 S.W.3d 898, 901-02 (Ky. 2002) (“[T]he power to grant parole

is a purely executive function.”). If there was an issue with the order granting

parole, the Commonwealth could have challenged this decision itself in a

declaratory judgment action; see Commonwealth ex rel. Conway v. Thompson, 300

S.W.3d 152 (Ky. 2009). Furthermore, the nunc pro tunc orders issued here were

highly improper, as they attempted to inject court actions which never actually

-11- occurred into the record. “[T]he court’s power to make such entries is restricted to

placing to record evidence of judicial action which has been actually taken. It may

be used to make the record speak the truth, but not to make it speak what it did not

speak but ought to have spoken.” Webster County Bd. of Educ. v. Franklin, 392

S.W.3d 431, 437 (Ky. App. 2013) (internal quotation marks and citation omitted).

IV. CONCLUSION

For the foregoing reasons, we vacate the trial court’s judgment and

sentence entered on October 29, 2021. Because the Kentucky Parole Board’s order

dated June 15, 2021, validly granted parole to Burton, we remand with instructions

to the trial court to enter any necessary orders which may be required to return

Burton to Probation and Parole’s supervision.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Alana S. Meyer Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Matthew F. Kuhn Solicitor General

Rachel A. Wright Assistant Solicitor General Frankfort, Kentucky

-12-