RENDERED: MARCH 6, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0751-MR
MICHAEL D. MALLARD APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT v. HONORABLE KAREN LYNN WILSON, JUDGE ACTION NOS. 96-CR-00038, 96-CR-00055, 96-CR-00114, 97-CR-00048, 01-CR-00130, 04-CR-00320, 04-CR-00321, AND 22-CR-00197
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ECKERLE, A. JONES, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Michael D. Mallard appeals from a June 6, 2024, Order of the
Henderson Circuit Court which denied his motion for relief pursuant to Kentucky
Rules of Civil Procedure (CR) 60.02(f), seeking to amend the final judgment in his
case and reduce his prison sentence from forty-five years to twenty years. For the reasons stated, we affirm the Henderson Circuit Court’s denial of Mallard’s CR
60.02 motion for relief.
BACKGROUND
Mallard has had a substantial criminal history in our court system
since at least 1996. Relevant to this appeal, the circuit court summarized his
various convictions in Henderson County in the court’s June 6, 2024, order
denying Mallard’s motion for relief:
To summarize, in August of 1996 the Court sentenced Mallard to five years in the three 1996 cases; in May of 1997, the Court sentenced him to twenty years in 97-CR- 048; in November of 2001, it sentenced him to ten years in 01-CR-130; in October of 2005, it sentenced him to eight years in the two 2004 cases; and finally in July of 2022, it sentenced him to two years in 22-CR-197. All of these sentences were imposed pursuant to guilty pleas. The sentences are being served consecutively for a total sentence of forty-three years.[1]
Record at 90 (Action No. 22-CR-00197).
As concerns Mallard’s most recent conviction in 2022, he pleaded
guilty to possession of a controlled substance (methamphetamine) first degree, and
operating a motor vehicle under the influence of a controlled substance. He was
sentenced to serve two years and one day in prison. In the court’s July 22, 2022,
Judgment of Conviction, the court stated:
1 The June 6, 2024, Order references that the total consecutive sentences to be served is forty- three years, which appears to be a clerical error.
-2- It is further ORDERED and ADJUDGED that the sentence imposed upon the defendant under this indictment be served consecutively to any other sentence that has been heretofore imposed.
Record at 55.
This brought his total aggregate sentence for consecutive years of
imprisonment to forty-five, based on the previous convictions and sentences
summarized above.
On May 20, 2024, Mallard filed a pro se motion pursuant to CR
60.02(f), for relief from the judgment on grounds that the sentence imposed by the
court could not exceed the aggregate sentencing cap established in Kentucky
Revised Statutes (KRS) 532.110(1)(c). At the time Mallard was sentenced, 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.” Mallard argued that his maximum
sentence could not exceed twenty years under KRS 532.080(6)(b).
Mallard’s primary argument below and in this appeal relies on the
Supreme Court’s recent decision in Kimmel v. Commonwealth, 671 S.W.3d 230
(Ky. 2023), which reviewed a conflict between KRS 532.110(1)(c) and KRS
533.060(3), and reduced the sentence in that case as a result of the statutory
sentencing cap. The Supreme Court held: “To harmonize and give effect to both
-3- 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).” Id. at 239. Mallard
argued that since his sentencing also involved a conflict between KRS
532.110(1)(c) and 532.080(6)(b), Kimmel required that his illegal sentence be
reduced in conformance with the statutory cap of twenty years. For the reasons
stated, we disagree.
By Order entered June 6, 2024, the Henderson Circuit Court
concluded that Mallard’s reliance on Kimmel was misplaced, holding that Kimmel
only applied the maximum aggregate sentence to offenses committed while out on
bond awaiting trial for the first offense and did not apply to sentences resulting
from prior case convictions. The CR 60.02(f) motion was denied. This appeal
followed.
STANDARD OF REVIEW
“The standard of review of an appeal involving a CR 60.02 motion is
whether the trial court abused its discretion.” White v. Commonwealth, 32 S.W.3d
83, 86 (Ky. App. 2000). Relief from judgment is available under CR 60.02(f) for
any reason of an extraordinary nature justifying relief, and a motion on that ground
must be made within a reasonable time. Stoker v. Commonwealth, 289 S.W.3d
592, 596 (Ky. App. 2009). “[B]ecause the trial court and appellate court have
-4- inherent authority to correct an unlawful sentence at any time,” one mechanism a
defendant may use to raise a sentencing issue is a CR 60.02 motion.
Commonwealth v. Moore, 664 S.W.3d 582, 590 (Ky. 2023). Even if agreed to by
the parties through a plea agreement, a sentence that is outside the limits
established by statutes is still an illegal sentence which cannot stand uncorrected.
Phon v. Commonwealth, 545 S.W.3d 284, 302 (Ky. 2018). Our review proceeds
accordingly.
ANALYSIS
Based on our review of the record and applicable law, we believe
Mallard’s reliance upon Kimmel, 671 S.W.3d 230, is misplaced and is clearly
distinguishable from the underlying facts of this case. First, Kimmel involved the
application of KRS 533.060(3), not KRS 532.080(6)(b) which Mallard asserts is
applicable to his case. More importantly and relevant to this appeal, in Kimmel, all
of his various felony charges were tried together, whereas Mallard committed new
offenses while being on parole and all of his previous cases were resolved prior to
his last plea in the Henderson Circuit Court in 2022.
In Blackburn v. Commonwealth, 394 S.W.3d 395, 401 (Ky. 2011), the
Supreme Court held that subsequent convictions cannot run concurrently with a
paroled offense sentence. And, controlling for this case, the Supreme Court has
held that the statutory cap set out in KRS 532.110(1)(c) does not apply to sentences
-5- from previous cases. Johnson v.
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: MARCH 6, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0751-MR
MICHAEL D. MALLARD APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT v. HONORABLE KAREN LYNN WILSON, JUDGE ACTION NOS. 96-CR-00038, 96-CR-00055, 96-CR-00114, 97-CR-00048, 01-CR-00130, 04-CR-00320, 04-CR-00321, AND 22-CR-00197
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ECKERLE, A. JONES, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Michael D. Mallard appeals from a June 6, 2024, Order of the
Henderson Circuit Court which denied his motion for relief pursuant to Kentucky
Rules of Civil Procedure (CR) 60.02(f), seeking to amend the final judgment in his
case and reduce his prison sentence from forty-five years to twenty years. For the reasons stated, we affirm the Henderson Circuit Court’s denial of Mallard’s CR
60.02 motion for relief.
BACKGROUND
Mallard has had a substantial criminal history in our court system
since at least 1996. Relevant to this appeal, the circuit court summarized his
various convictions in Henderson County in the court’s June 6, 2024, order
denying Mallard’s motion for relief:
To summarize, in August of 1996 the Court sentenced Mallard to five years in the three 1996 cases; in May of 1997, the Court sentenced him to twenty years in 97-CR- 048; in November of 2001, it sentenced him to ten years in 01-CR-130; in October of 2005, it sentenced him to eight years in the two 2004 cases; and finally in July of 2022, it sentenced him to two years in 22-CR-197. All of these sentences were imposed pursuant to guilty pleas. The sentences are being served consecutively for a total sentence of forty-three years.[1]
Record at 90 (Action No. 22-CR-00197).
As concerns Mallard’s most recent conviction in 2022, he pleaded
guilty to possession of a controlled substance (methamphetamine) first degree, and
operating a motor vehicle under the influence of a controlled substance. He was
sentenced to serve two years and one day in prison. In the court’s July 22, 2022,
Judgment of Conviction, the court stated:
1 The June 6, 2024, Order references that the total consecutive sentences to be served is forty- three years, which appears to be a clerical error.
-2- It is further ORDERED and ADJUDGED that the sentence imposed upon the defendant under this indictment be served consecutively to any other sentence that has been heretofore imposed.
Record at 55.
This brought his total aggregate sentence for consecutive years of
imprisonment to forty-five, based on the previous convictions and sentences
summarized above.
On May 20, 2024, Mallard filed a pro se motion pursuant to CR
60.02(f), for relief from the judgment on grounds that the sentence imposed by the
court could not exceed the aggregate sentencing cap established in Kentucky
Revised Statutes (KRS) 532.110(1)(c). At the time Mallard was sentenced, 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.” Mallard argued that his maximum
sentence could not exceed twenty years under KRS 532.080(6)(b).
Mallard’s primary argument below and in this appeal relies on the
Supreme Court’s recent decision in Kimmel v. Commonwealth, 671 S.W.3d 230
(Ky. 2023), which reviewed a conflict between KRS 532.110(1)(c) and KRS
533.060(3), and reduced the sentence in that case as a result of the statutory
sentencing cap. The Supreme Court held: “To harmonize and give effect to both
-3- 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).” Id. at 239. Mallard
argued that since his sentencing also involved a conflict between KRS
532.110(1)(c) and 532.080(6)(b), Kimmel required that his illegal sentence be
reduced in conformance with the statutory cap of twenty years. For the reasons
stated, we disagree.
By Order entered June 6, 2024, the Henderson Circuit Court
concluded that Mallard’s reliance on Kimmel was misplaced, holding that Kimmel
only applied the maximum aggregate sentence to offenses committed while out on
bond awaiting trial for the first offense and did not apply to sentences resulting
from prior case convictions. The CR 60.02(f) motion was denied. This appeal
followed.
STANDARD OF REVIEW
“The standard of review of an appeal involving a CR 60.02 motion is
whether the trial court abused its discretion.” White v. Commonwealth, 32 S.W.3d
83, 86 (Ky. App. 2000). Relief from judgment is available under CR 60.02(f) for
any reason of an extraordinary nature justifying relief, and a motion on that ground
must be made within a reasonable time. Stoker v. Commonwealth, 289 S.W.3d
592, 596 (Ky. App. 2009). “[B]ecause the trial court and appellate court have
-4- inherent authority to correct an unlawful sentence at any time,” one mechanism a
defendant may use to raise a sentencing issue is a CR 60.02 motion.
Commonwealth v. Moore, 664 S.W.3d 582, 590 (Ky. 2023). Even if agreed to by
the parties through a plea agreement, a sentence that is outside the limits
established by statutes is still an illegal sentence which cannot stand uncorrected.
Phon v. Commonwealth, 545 S.W.3d 284, 302 (Ky. 2018). Our review proceeds
accordingly.
ANALYSIS
Based on our review of the record and applicable law, we believe
Mallard’s reliance upon Kimmel, 671 S.W.3d 230, is misplaced and is clearly
distinguishable from the underlying facts of this case. First, Kimmel involved the
application of KRS 533.060(3), not KRS 532.080(6)(b) which Mallard asserts is
applicable to his case. More importantly and relevant to this appeal, in Kimmel, all
of his various felony charges were tried together, whereas Mallard committed new
offenses while being on parole and all of his previous cases were resolved prior to
his last plea in the Henderson Circuit Court in 2022.
In Blackburn v. Commonwealth, 394 S.W.3d 395, 401 (Ky. 2011), the
Supreme Court held that subsequent convictions cannot run concurrently with a
paroled offense sentence. And, controlling for this case, the Supreme Court has
held that the statutory cap set out in KRS 532.110(1)(c) does not apply to sentences
-5- from previous cases. Johnson v. Commonwealth, 553 S.W.3d 213, 219-20 (Ky.
2018).
In Johnson, the trial court ordered that 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 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.
In this case, the convictions and sentences of Mallard in the sundry
Henderson County cases had been finalized when Mallard’s guilty plea was
entered by the Henderson Circuit Court on July 22, 2022. Accordingly, the
Henderson Circuit Court correctly determined that the sentence reduction set out in
Kimmel was not applicable to Mallard’s sentence. We agree that the sentencing
cap of KRS 532.110(1)(c) is not applicable to limit the total term of years when the
-6- aggregate sentence under consideration results from separate proceedings and
convictions. Johnson, 553 S.W.3d at 219-20.
For the foregoing reasons, the June 6, 2024, Order of the Henderson
Circuit Court denying Mallard’s motion for relief is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Andrea Reed Russell Coleman Assistant Public Advocate Attorney General of Kentucky Department of Public Advocacy Frankfort, Kentucky Christopher Henry Assistant Solicitor General Office of the Solicitor General Frankfort, Kentucky
-7-