RENDERED: OCTOBER 3, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0396-MR
RICKY WARREN MACK II APPELLANT
APPEAL FROM MASON CIRCUIT COURT v. HONORABLE JEFFERY L. SCHUMACHER, JUDGE ACTION NOS. 18-CR-00014, 18-CR-00050, 18-CR-00104, AND 22- CR-00120
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, ECKERLE, AND MCNEILL, JUDGES.
CALDWELL, JUDGE: Ricky Warren Mack, II (“Mack”) appeals the denial of his
CR1 60.02 motion to void his aggregate sentence of twenty-seven (27) years’
imprisonment from four separate convictions arguing it is void because it exceeds
1 Kentucky Rules of Civil Procedure. the statutory cap imposed by KRS2 532.110(1)(c) and must be amended to a twenty
(20) year sentence. We affirm.
BACKGROUND
Mack is currently serving an aggregate sentence of twenty-seven (27)
years in prison pursuant to a sentence that issued from the trial court on November
2, 2022. At that time, Mack received a sentence of fifteen (15) years’
imprisonment, after entering into an agreement to plead guilty to two counts of
first-degree wanton endangerment, one count of first-degree fleeing and evading,
and being a first-degree persistent felony offender (“PFO”) in Case No. 22-CR-
00120. Mack’s total sentence results from a designation that the term of
imprisonment in Case No. 22-CR-00120 would run consecutively to any other
cases in which he had previously been sentenced.
At the time Mack was sentenced in Case No. 22-CR-00120, he had
already been sentenced to a total of twelve (12) years in prison for charges from
three prior indictments in Mason Circuit Court. In 2018, Mack had entered a
guilty plea to second-degree fleeing and evading, possession of drug paraphernalia,
third-degree assault, and second-degree PFO in Case No. 18-CR-00014. On the
same day, Mack also pleaded guilty to bail jumping in Case No. 18-CR-00050.
Mack received a sentence of nine years’ imprisonment for Case No. 18-CR-00014.
2 Kentucky Revised Statutes.
-2- On the bail jumping charge in Case No. 18-CR-00050, he was sentenced to three
years, designated to run consecutively to the sentence in his other case, for a total
of 12 years’ imprisonment in both cases. Later in 2018, Mack pleaded guilty to
possession of drug paraphernalia and first-degree possession of a controlled
substance in Case No. 18-CR-00104. He was sentenced to three years’
imprisonment in this case, but the sentence was ordered to run concurrently with
Case No. 18-CR-00050 and so the aggregate sentence for the three cases remained
12 years’ imprisonment.
In July of 2020, Mack was released on parole. During the period he
was out on parole, Mack committed additional crimes. He was eventually indicted
in Case No. 22-CR-00120 and entered the guilty plea in October of 2022. When
he was sentenced to the fifteen (15)-year prison term the following month, to run
consecutive to his twelve (12)-year sentence from the 2018 cases, Mack’s total
sentence in all four cases was twenty-seven (27) years’ imprisonment.
On April 3, 2023, Mack filed a “motion to adjust illegal sentence” and
alleged the trial court had erred when sentencing him. At that time, he argued,
pursuant to KRS 532.110 and KRS 532.080, his aggregate sentence for all four
cases should have been capped at 20 years. The Commonwealth responded in
opposition to this motion. Prior to any order by the trial court on the motion
issuing, Mack filed another motion to modify his sentence on August 14, 2023. In
-3- October 2023, the trial court entered an order stating it was taking no action on the
motion because it no longer had jurisdiction over the matter.
The following January of 2024, Mack filed a motion for relief under
CR3 60.02 and, simultaneously, a motion for a writ of mandamus. Both motions
reiterated his prior argument that his aggregate 27-year sentence effectively
violated KRS 532.110 and KRS 532.080 and should have been capped at 20 years.
The trial court issued a four-page opinion and order denying these motions on
January 29, 2024. At that time, the trial court found that:
It is unquestioned that [Mack] was out on [parole] in his three previous cases when he committed the crimes for which he voluntarily pled guilty in this fourth and most recent case (Case No. 22-CR-00120). The Court’s order was specific and ordered said sentence in this most recent case to run CONSECUTIVELY with his other previous cases. Further, under [KRS] 533.060(2) the most recent case “shall not run concurrently with any other sentence[.]”
On February 23, 2024, Mack filed another CR 60.02 motion with the
trial court alleging the same grounds for relief as previously alleged. The trial
court issued an order denying this motion on March 8, 2024 (“Order”). The Order
reiterated several of the trial court’s statements and findings from the January
opinion. Additionally, the Order noted the repetitious nature of Mack’s pro se
filings and found that the “[d]efendant is under the misconception that the law
3 Kentucky Rules of Civil Procedure.
-4- states that no sentence can be imposed for more than 20 years.” The Order
admonished Mack from filing further repetitive motions and concluded, “THE
DEFENDANT IS AGAIN ADVISED THAT HE HAS EXHAUSTED ALL
AVENUES OF RELIEF IN THIS COURT AND HIS ONLY OPTION IS TO THE
KENTUCKY COURT OF APPEALS.”
This appeal follows.
STANDARD OF REVIEW AND PRESERVATION
Mack and the Commonwealth dispute issues regarding preservation,
post-trial motion practice and procedure, and whether the case is appealable.
“The structure provided in Kentucky for attacking the final judgment
of a trial court in a criminal case is not haphazard and overlapping, but is organized
and complete [and] is set out in the rules related to direct appeals, in RCr[4] 11.42,
and thereafter in CR 60.02.” Commonwealth v. Moore, 664 S.W.3d 582, 588 (Ky.
2023) (quoting Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983)).
A motion under CR 60.02 “is for relief that is not available by direct
appeal and not available under RCr 11.42 [and the] movant must demonstrate why
he is entitled to this special, extraordinary relief.” Moore, 664 S.W.3d at 588-89
(internal quotation marks omitted). However, “[s]entencing is jurisdictional, and
all defendants have the right to be sentenced after due consideration of all
4 Kentucky Rules of Criminal Procedure.
-5- applicable law.” Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007)
(citing Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994) and Wellman v.
Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985)).
[S]entences falling outside the permissible sentencing range cannot stand uncorrected.
Our review of unpreserved “sentencing issues” is based on protection of the defendant from being subjected to an illegal sentence, since all defendants have the right to be sentenced after due consideration of all applicable law. The appellate court will automatically treat an unpreserved sentencing issue as though it was preserved for appellate review. Furthermore, because the trial court and appellate court have inherent authority to correct an unlawful sentence at any time, a defendant may raise a sentencing issue through any of the following relief mechanisms: direct appeal, with the standard of review being abuse of discretion even when the sentencing issue is not preserved; RCr 11.42; CR 60.02; or a writ of habeas corpus.
Moore, 664 S.W.3d at 590 (internal quotation marks, footnotes, and citations
omitted).
The record before us is cluttered with hand-written filings and
obviously photocopied motions from other cases with Mack’s name pasted in. The
duplicative and haphazard manner of Mack’s pro se post-trial motion practice in
this case is far from ideal and the frustration apparent in the trial court’s Order, as
well as within the Appellee brief from the Commonwealth, is understandable.
Nonetheless, Mack’s allegation here is unquestionably that of an illegal sentence.
-6- Where there is a sentencing issue, the typical procedural analysis of post-trial
motion practice is altered. Moore, 664 S.W.3d at 589. Furthermore, the Appellee
brief concedes that this Court is without authority to affirm an illegal sentence,
citing to our Supreme Court’s opinion in Phon v. Commonwealth, 545 S.W.3d 284
(Ky. 2018).
For purposes of identifying the applicable standard of review here, the
procedural arguments before us are not critical. The precedent of our Supreme
Court dictates that our standard of review for a sentencing issue is for abuse of
discretion even where the issue was not preserved. Moore, 664 S.W.3d at 590.
When faced with an allegation of the illegality of a criminal sentence, an “appellate
court will automatically treat an unpreserved sentencing issue as though it was
preserved for appellate review.” Id.
Moreover, we agree with the Commonwealth that Mack’s sentence is
not an illegal one and thus conclude it is unnecessary to exhaustively resolve the
procedural arguments offered by the parties.
KRS 533.060(2) REQUIRED THE TRIAL COURT TO ORDER MACK’S SENTENCE IN CASE NO. 22-CR-00120 TO RUN CONSECUTIVELY WITH HIS SENTENCE FROM 2018 CASES DESPITE A RESULTING AGGREGATE PRISON TERM IN EXCESS OF TWENTY YEARS.
On appeal, Mack argues that the trial court failed to incorporate the
statutory cap dictated by KRS 532.110(1)(c) when it ordered the sentence to run
consecutively to the sentence from his prior cases. He argues that, since he was
-7- convicted of only Class D felonies, the maximum aggregated sentence could not
exceed twenty years, by virtue of KRS 532.110(1)(c) and KRS 532.080(6)(b).
Accordingly, he maintains we must vacate the Order and instruct the trial court to
amend it to reflect a twenty (20) year aggregate prison sentence.
KRS 532.110(1)(c) directs a sentencing court 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[.]”5 The maximum term for a
Class C or Class D felony, enhanced for being a PFO as authorized by KRS
532.080(6)(b), is twenty (20) years. A plain reading of KRS 532.110(1)(c) then,
Mack argues, confined the trial court to sentencing him to consecutive terms of
imprisonment that resulted in a maximum total term of imprisonment of no more
than twenty (20) years. As Mack had already been sentenced to twelve (12) years
for the 2018 cases, for the trial court to comply with this statutory cap, he argues
the trial court should have sentenced him to no more than eight (8) years in Case
No. 22-CR-00120, so that “the aggregate of consecutive indeterminate terms”
would remain below a total of twenty (20) years.
5 Subsequent to entry of the Order under appeal in this case, KRS 532.110(1)(c) was amended to specially exclude applicability to aggregate prison terms which had resulted from sentencing “as described in KRS 533.060(2) or (3).” KY LEGIS 127 (2024), 2024 Kentucky Laws Ch. 127 (HB 619).
-8- The Order under appeal acknowledged Mack’s argument regarding
KRS 532.110(1)(c) but concluded that KRS 533.060(2) required the sentences to
run consecutively. Mack acknowledges that the trial court was required by KRS
533.060(2) to order his sentence in 22-CR-00120 to run consecutively with the
sentence from his 2018 cases.6 However, he maintains the trial court was limited
to sentencing him to an additional eight years based primarily on the Kentucky
Supreme Court’s opinion in Kimmel v. Commonwealth, 671 S.W.3d 230 (Ky.
2023) (hereinafter “Kimmel”). He argues that the statutory cap on aggregate
sentences as set forth in both KRS 532.110(1)(c) and KRS 532.080(6) controlled
and confined the maximum aggregate sentence allowable.
In Kimmel, the Court held that an aggregate sentence of forty (40)
years that resulted from application of KRS 533.060(3)7 was subject to the twenty
(20) year statutory cap for class C and D felonies. 671 S.W.3d at 239. The
defendant in Kimmel had initially been charged with third-degree burglary and
theft by unlawful taking after he had shoplifted from a Walmart he had previously
been barred from entering. Id. at 234. Subsequently, while on bond during a
6 KRS 533.060(2) directs a sentencing court that, when a person who has entered a plea of guilty to a felony which was committed during the person’s release on probation for a prior felony, “the period of confinement for [the latter] felony shall not run concurrently with any other sentence.” 7 KRS 533.060(3) dictates that “[w]hen 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 committed while awaiting trial shall not run concurrently with confinement for the offense for which the person is awaiting trial.”
-9- pretrial release, the defendant committed offenses which resulted in another
indictment for third-degree burglary and theft by unlawful taking, as well as a PFO
charge. Id. The defendant agreed to having all charges from both indictments
tried together. Id. at 235. Following a jury trial, he was found guilty of all
charges. Id. After finding the defendant guilty of being a PFO, the jury
recommended sentences of twenty (20) years each on the two burglary charges and
further recommended that the sentences run consecutively, for a total sentence of
forty (40) years. The final judgment and sentencing which issued from the trial
court followed the jury’s recommendation. Id.
In resolving the statutory conflict, the Kentucky Supreme Court
ultimately held 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).” Kimmel, 671 S.W.3d at 239. Although it was
KRS 533.060(3) at issue in Kimmel, the Court relied upon a prior decision where it
had examined a challenge to an aggregate sentence issued pursuant to KRS
533.060(2). See 671 S.W.3d at 238 (citing Blackburn v. Commonwealth, 394
S.W.3d 395, 400 (Ky. 2011)) (“[W]e find that the more recent rationale behind
applying KRS 533.060, subject to the statutory limits contained in KRS
532.110(1), as explained in Blackburn controls.”).
-10- As would occur in Kimmel, 671 S.W.3d 230, the defendant in
Blackburn had received consecutive sentences for felonies from two separate
indictments after being found guilty in a jury trial where all charges had been tried
together. 394 S.W.3d at 396. However, at the time those offenses were committed
in Blackburn, the defendant was out of prison on parole for an earlier conviction.
Id. After being found guilty of the latter indictments, the trial court entered a total
sentence of forty (40) years based upon the jury’s recommendation of consecutive
sentences for the charges from the subsequent offenses. Id. at 401. The maximum
length authorized by KRS 532.080 for the highest enhanced Class C felony at issue
was twenty (20) years. Id. The Blackburn Court concluded that KRS 533.060(2)
“[did not] modif[y] the maximum aggregate duration allowed by KRS 532.110(1)”
as to consecutive sentences resulting from separate indictments for multiple
offenses committed subsequent to parole. 394 S.W.3d at 400.
The Appellee brief concedes that Mack’s sentence raises some
apparent conflict between the requirement for consecutive sentencing in KRS
533.060(2) and the statutory cap on aggregate sentences resulting from operation
of KRS 532.110(1)(c) and KRS 532.080(6)(b). Nonetheless, the Commonwealth
argues, Kimmel, 671 S.W.3d 230, is not controlling as it does not address KRS
533.060(2). Furthermore, the Commonwealth argues, factual distinctions between
-11- this case and Kimmel show Kimmel does not govern determination of Mack’s
sentence.
The Commonwealth argues that binding precedent which predates the
2023 Kimmel opinion remains applicable to the present facts and establishes that
Mack’s sentence was not illegal, pointing to Johnson v. Commonwealth, 553
S.W.3d 213 (Ky. 2018). There, the defendant had been sentenced to serve a total
of twenty (20) years in prison for multiple offenses. Id. The Court considered his
appeal where:
the trial judge ordered that the sentences run consecutively to any and all other sentences. This includes a prior trafficking conviction where Appellant received a ten-year sentence. Appellant contends that his grand total sentence is thirty years’ imprisonment, thus, in violation of KRS 532.110(1) and KRS 532.080(6)(b).
Contrary to Appellant’s contention, the relevant sentencing statutes do not extend to sentences resulting from previous cases. Appellant’s ten-year sentence resulted from a previous indictment and trial. That case was pending before the Court of Appeals. There was no sentencing error here.
553 S.W.3d at 219-20.
The Commonwealth additionally cites to unpublished opinions which
issued from the Kentucky Supreme Court, as well as this Court, as persuasive
support. However, subsequent to the briefing in the case, the Kentucky Supreme
-12- Court issued an opinion that renders it unnecessary to examine unpublished cases
here.
In Wynn v. Commonwealth, the defendant had relied upon the
Supreme Court’s opinion in Kimmel, 671 S.W.3d 230, to allege his total sentence
of twenty-seven (27) years was in excess of the statutory cap on aggregate
sentences. 713 S.W.3d 122, 126 (Ky. 2025). Wynn had pled guilty to original
charges which included possession of a firearm by a convicted felon. Id. After he
was released on bond pending his sentencing hearing and then failed to appear, the
defendant was eventually indicted for bail-jumping and PFO. Id. Following his
subsequent arrest, he was sentenced to a seven (7) year term of imprisonment on
the original charges. Id. After being found guilty of the enhanced bail jumping
charge, he was sentenced to a term of twenty (20) years on that charge, designated
to run consecutively to the seven (7) year sentence from the original charges. Id. at
131.
As in Kimmel, KRS 533.060(2) was not applicable to the defendant in
Wynn. Despite the defendant’s entry of a guilty plea to the prior indictment before
committing the offense which resulted in the latter indictment, the Court in Wynn
determined that KRS 533.060(3) was the relevant statute regarding questions as to
mandatory consecutive sentencing. 713 S.W.3d at 132 (quoting Cosby v.
Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004)) (“[A] defendant is considered to
-13- be ‘awaiting trial’ for purposes of KRS 533.060(3) during the period he is
‘awaiting sentencing.’”).
Despite the case’s shared applicability of KRS 533.060(2), the Court
in Wynn found the facts of the case were sufficiently distinguishable from Kimmel
to render it inapplicable and the Court affirmed the twenty-seven (27) year
sentence. Id. at 131. In doing so, the Wynn Court emphasized that the defendant
had already been found guilty and sentenced for the prior indictment at the time
before he received the sentence under appeal when making factual distinctions
from those in Kimmel. Id. at 133 (“Wynn had already been separately indicted,
convicted, and sentenced in case No. 21-CR-00068 prior to being tried, convicted,
and sentenced for first-degree bail jumping in case No. 22-CR-00179.”).
The relevant facts concerning Mack’s prior indictments are closer to
those of Wynn than Kimmel. The most obvious distinction—that Mack had been
sentenced in the prior indictments years before the bail-jumping sentence—does
not weigh in his favor. This is clear from Wynn as our Supreme Court specifically
cited with approval a prior decision where it: “held that the sentencing cap statute,
KRS 532.110(1)(c), did not mandate that the aggregate of the appellant’s two
consecutive sentences be capped at the twenty-year maximum, because it
interpreted KRS 532.110(1)(c) not to apply to sentences arising from separate
-14- indictments and trials.” 713 S.W.3d at 133 (quoting Johnson, 553 S.W.3d at 220)
(internal quotation marks omitted).
The arguments presented in Wynn closely parallel those made by
Mack here; we are bound by the Supreme Court’s holding in Wynn which is
likewise plainly applicable to Mack’s appeal here:
Like the appellant in Johnson, Wynn had already been separately indicted, convicted, and sentenced in [his initial case] prior to being tried, convicted, and sentenced for first-degree bail jumping in [his subsequent case]. Therefore, our precedent would dictate that the “sentencing cap” of KRS 532.110(1)(c) did not require the trial court to fix Wynn’s penalty for first-degree bail jumping at thirteen years of imprisonment, so as to keep his “aggregate” punishment for both felony convictions below twenty years of imprisonment. Any contrary interpretation of the General Assembly’s “sentencing cap” statute would lead to an absurd result. Under a contrary interpretation of KRS 532.110(1)(c), any criminal who was convicted of having committed a Class D felony and was thereafter sentenced would be free to commit any number of Class D felonies with the peace of mind of knowing that he could only receive an aggregate prison sentence of, at most, twenty years. This cannot be what the legislature intended when it enacted KRS 532.110(1)(c).
Id. at 132-34.
Thus, based on our review of binding precedent and the record before
us, KRS 532.110(1)(c) did not require the trial court to fix Mack's penalty for the
two counts of first-degree wanton endangerment, one count of first-degree fleeing
and evading, and PFO in Case No. 22-CR-00120 at eight (8) years so as to keep
-15- the “aggregate” prison sentence combined with his prior convictions in the 2018
indictments below twenty (20) years of imprisonment. The trial court correctly
determined that KRS 533.060(2) required Mack’s sentence in 22-CR-00120 to run
consecutively to any term of imprisonment he had been ordered to serve as a result
of his earlier convictions.
CONCLUSION
The Mason Circuit Court’s order denying Mack’s CR 60.02 motion is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Andrea Reed Russell Coleman Frankfort, Kentucky Attorney General of Kentucky
Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky
-16-