IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: OCTOBER 23, 2025 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0113-MR
THOMAS R. MOORE APPELLANT
ON APPEAL FROM TODD CIRCUIT COURT V. HONORABLE JOE W. HENDRICKS, JR., JUDGE NO. 18-CR-00011
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
In 2018, Thomas R. Moore pled guilty to fourth-degree driving under the
influence (DUI) of drugs, 1 second-degree driving on a DUI-suspended license
while under the influence, 2 and of being a second-degree persistent felony
offender (PFO-2). This Court vacated the circuit court’s original sentence and
remanded “to resentence Moore on the two Class D felonies, pursuant to KRS
532.110 and KRS 532.080.” Commonwealth v. Moore, 664 S.W.3d 582, 591
(Ky. 2023). Upon remand, the circuit court resentenced Moore to 20 years;
Moore now appeals his sentence as a matter of right. KY. CONST. § 110(2)(b).
1 This was a Class D felony offense as it was Moore’s fourth offense or greater
within ten years; Kentucky Revised Statute (KRS) 189A.010(1), (5)(d). 2 This was a Class D felony offense because 1) Moore violated KRS
189A.010(1)(c) while driving on a DUI-suspended license and 2) it was Moore’s second offense or greater within ten years; KRS 189A.090(1), (2)(b). This Court must address: (1) whether Moore was competent for
resentencing as mandated by KRS 504.090 and defined by KRS 504.060(5);
and, if so, (2) whether the circuit court erred by resentencing Moore to 20 years
imprisonment. After a thorough review, we vacate Moore’s twenty-year
sentence and remand for resentencing by the circuit court.
I. FACTUAL AND PROCEDURAL BACKGROUND
In February 2018, Moore was indicted for various traffic offenses,
including fourth-degree DUI, second-degree driving on a DUI-suspended
license while under the influence, and a PFO-1. 3 Moore reportedly made “off-
the-wall” comments during his arrest. 4 On April 11, 2018, Moore’s lawyer
expressed concern 5 and moved the circuit court to have Moore evaluated as to
his competency to stand trial at the Kentucky Correctional Psychiatric Center
(KCPC) under KRS 504.080(1). The circuit court granted this motion. On May
24, 2018, Dr. Susan Brittain-Seitz of KCPC evaluated Moore and prepared a
report regarding Moore’s competency.
On June 27, 2018, Dr. Brittain-Seitz testified at Moore’s competency
hearing that Moore was an in-patient at KCPC from May 7, 2018, until May 25,
2018. She concluded Moore was competent based on his capacity to
3 See KRS 532.080(3), (6)-(7), (10)(b).
4 The arrest citation noted that “[Moore] continued to speek [sic] of off the wall
items, thing [sic], and places” but provided no examples or observations. 5 Moore’s lawyer did not detail what precisely prompted his want of a
competency evaluation, only saying that he would not be “doing his job” after affirming that he had “seen something or heard something that cause[d]” alarm.
2 understand the criminality of his conduct and opined that he may have feigned
psychiatric symptoms at times (i.e., endorsing unusual sensory things, magical
thinking, and delusional beliefs).
Subsequently, the Commonwealth offered Moore a plea deal which
“recommended that [he] receive a prison sentence of three years enhanced to
ten years due to [his PFO-2 status] and that [both] ten-year sentences [would]
run consecutively.” 6 Moore, 664 S.W.3d at 585. Moore pled guilty the same
day, which probated his twenty-year prison sentence for five years. Nine days
later, the Commonwealth revoked Moore’s probation. 7 The circuit court
amended its final judgment, which not only imposed a twenty-year sentence for
the two Class D felonies but also mistakenly imposed twenty years for the PFO-
2 charge itself, directing “all sentences run concurrently for a total of twenty
years.” Id.
Moore, pro se, moved to vacate his twenty-year sentence, arguing that
his PFO-2 charge was wrongly treated as an independent conviction instead of
an enhancement. 8 The circuit court denied Moore’s motion, but the Court of
Appeals reversed and remanded holding the twenty-year sentence for the PFO-
6 The Commonwealth’s plea agreement amended Moore’s PFO enhancement
classification down from first-degree to second-degree, KRS 532.080(2), (5); dismissed Moore’s drug possession and paraphernalia charges; and fined Moore for the other convictions. See Moore, 664 S.W.3d at 585. 7 Moore’s probation was revoked for failure to report to his probation officer;
Moore subsequently failed to attend his August 1, 2018, revocation hearing. 8 Moore argued under both Kentucky Rule of Criminal Procedure (RCr) 10.26
and its identical counterpart Kentucky Rule of Civil Procedure (CR) 61.02. See Nami Res. Co., LLC v. Asher Land & Mineral, Ltd., 554 S.W.3d 323, 338 (Ky. 2018) (noting the resemblances between the two statutes).
3 2 charge to be palpable error. Moore v. Commonwealth, No. 2019-CA-1549-MR,
2021 WL 3686070 at *2 (Ky. App. Aug. 21, 2021). That court additionally
found Moore’s probation revocation to be error because the circuit court failed
to transcribe its findings to support revocation. Id. at *3; see KRS 439.3106.
This Court upheld Moore’s probation revocation and addressed the “sentencing
issue” by vacating the circuit court’s twenty-year sentence for the PFO-2
enhancement and remanding “for Moore’s resentencing” of the two Class D
felonies. Moore, 664 S.W.3d at 590-91.
On March 20, 2023, Moore appeared with defense counsel at
resentencing and made odd and religious-focused statements, including
references to a misplaced shaman cross, genital ocular function, and a sex
change transformation he endured at the age of six. Concerned, the circuit
court ordered Moore to undergo another competency evaluation at KCPC. KRS
504.070(3); KRS 504.080(1). On May 22, 2023, Dr. Steven Sparks of KCPC
evaluated Moore and prepared a second report regarding Moore’s competency.
On July 19, 2023, Dr. Sparks testified at Moore’s second competency
hearing that Moore was very cooperative yet exhibited religious delusional
thinking and made odd statements during the evaluation, including Moore
claiming both to be “related to the Bible” and to be “cured of everything”
because he “was built to be a medicine man.” Dr. Sparks diagnosed Moore
with an unspecified psychotic disorder, which involves a lack of contact with
reality. And though Dr. Sparks agreed Moore could understand the nature and
consequences of the resentencing proceedings against him, he nonetheless
4 believed Moore was incompetent due to impaired rational decision-making that
included his inability to communicate rationally with defense counsel because
his religious hyper-fixation would impair his legal strategy regarding
sentencing. Dr. Sparks opined that Moore could be restored to competency
with in-patient medical treatment. The circuit court, chagrined by Dr. Sparks’
report, ordered Moore to be re-evaluated for competency determination at
KCPC. On January 9, 2024, Dr. Martine Turns of KCPC evaluated Moore and
prepared a third report regarding Moore’s competency.
On February 2, 2024, Dr. Turns testified at Moore’s third competency
hearing that Moore was very cooperative, did not exhibit any signs of psychosis
during the evaluation, and expressed alacrity in completing the evaluation. Dr.
Turns both acknowledged that KCPC forcibly administered a daily anti-
psychotic medicine (20mg of Abilify) to treat Moore’s delusional thinking from
November 30, 2023, until January 9, 2024, and indicated that Moore’s
competency was contingent on his ongoing medication compliance. Dr. Turns
later acknowledged both that Moore historically refused his medications and
that the county jail could not forcibly administer his medications like KCPC.
Dr. Turns, unlike Dr. Sparks, firmly concluded that because Moore had
achieved optimal response to medical treatment, he could appreciate the
nature and consequences of the resentencing proceedings against him and was
competent to be resentenced. Dr. Turns testified that Moore (1) exhibited no
signs of delusional thinking; (2) expressed positivity and hope for a favorable
trial outcome; (3) could give specific details of his 2018 arrest and place them
5 along an accurate timeline (Dr. Turns stressed this was abnormal for someone
in Moore’s position); (4) displayed adequate behavior (Dr. Turns commented
Moore was very polite during the evaluation) and vocabulary; (5) understood
his rights as they pertained to resentencing; and (6) even expressed positivity
about his attorney and his attorney’s performance. Most notably, Dr. Turns
opined that Moore had the capacity to relate to his attorney and could
participate rationally in his defense.
Moore timely objected and argued he could not be found competent until
the Commonwealth proved that he remained compliant with his medication at
the county jail. Moore further argued that he should be able to make a
statement at his resentencing and could not do so if he is incompetent.
Nevertheless, the circuit court proceeded to resentence Moore to twenty years
imprisonment, in accordance with his 2018 plea agreement with the
Commonwealth. KRS 504.110(4). Moore argued his twenty-year sentence was
illegal because this Court set the max sentence at ten years. The
Commonwealth clarified by stating that this Court specifically vacated the
“illegal twenty-year sentence for the [PFO-2] charge” and remanded for Moore’s
resentencing on the underlying two Class D felonies. Moore, 664 S.W.3d at
591. Moore now appeals the circuit court’s amended final judgment.
6 II. ANALYSIS
A. The Todd Circuit Court correctly determined Moore was competent for resentencing.
KRS 504.090 prohibits sentencing incompetent defendants “so long as
the incompetency continues.” (Emphasis added). KRS 504.060(5) defines
“incompetency” as a mental condition which “lack[s] capacity to appreciate the
nature and consequences of the proceedings against one or to participate
rationally in one’s own defense.” Moody v. Commonwealth, 698 S.W.2d 530,
532 (Ky. 1985).
Moore argues the circuit court erred because it resentenced him when he
was incompetent. Specifically, Moore argues Kentucky law requires he be able
to participate rationally in his own defense. Commonwealth v. Griffin, 622
S.W.2d 214, 216 (Ky. 1981). Moore argues his participation was necessary in
February 2024 to be resentenced and the Commonwealth failed to prove he
remained compliant with his medication once discharged from KCPC.
Moreover, the circuit court primarily relied upon Dr. Turns’ report to determine
Moore’s competency, which contradicted Dr. Sparks’ earlier report. Thus, he
argues the circuit court could not have resentenced him under KRS 504.090.
The Commonwealth responds that the circuit court could resentence
Moore because, while Dr. Sparks found him incompetent in July 2023, Dr.
Turns found him competent and testified to such findings on February 2, 2024,
the day resentencing occurred. And though defendants may participate
rationally in their own defense, the Commonwealth argues that this Court
should eschew entertaining such participation at a resentencing. The
7 Commonwealth further argues that although the circuit court was chagrined at
Dr. Sparks’ conclusion that Moore was incompetent in July 2023, it
nonetheless ordered Moore to be re-evaluated for further competency
determination at KCPC. And Dr. Turns concluded in February 2024 that
Moore was competent and could appreciate the nature and consequences of
the resentencing proceedings against him.
Moore’s objections at the circuit court properly preserved this issue for
our review. “A competency determination is based on the preponderance of the
evidence standard.” Keeling v. Commonwealth, 381 S.W.3d 248, 262 (Ky. 2012)
(citing Chapman v. Commonwealth, 265 S.W.3d 156, 174 (Ky. 2007)); see Alley,
160 S.W.3d at 739; Dunlap v. Commonwealth, 435 S.W.3d 537, 554-57 (Ky.
2013). “[A trial] court’s determination of competency is a factual finding.”
United States v. Branham, 97 F.3d 835, 855 (6th Cir. 1996); see also Bishop v.
Caudill, 118 S.W.3d 159, 161 (Ky. 2003) (discussing the trial court’s discretion
to determine competency). “We may disturb a trial court’s competency
determination only if the . . . decision is clearly erroneous (i.e., not supported
by substantial evidence).” Keeling, 381 S.W.3d at 262. The test for
competency is whether Moore had “substantial capacity to comprehend the
nature and consequences of the proceeding pending against him and to
participate rationally in his defense.” Alley, 160 S.W.3d at 739; Dusky v.
United States, 362 U.S. 402 (1960). Notably, “[c]ompetency to stand trial . . .
pertains to the defendant’s mental state at the time of trial.” Bishop, 118
S.W.3d at 162 (emphasis added).
8 Here, Dr. Turns’ testimony provided substantial evidence that Moore had
been restored to competency and had substantial capacity to appreciate the
nature and consequences of the resentencing proceedings against him. See
Alley, 160 S.W.3d at 739 (“[t]he record indicates there is substantial evidence
to support the finding . . . as to competency”); Moody, 698 S.W.2d at 532-33
(holding the trial court can proceed with sentencing “[o]nce the issue of
whether the defendant is competent on the date of sentencing is resolved”)
(emphasis added). Moreover, nothing at the February 2024 competency
hearing indicated that Moore became non-compliant with his medication once
discharged from KCPC. Furthermore, Moore’s demeanor in February 2024
heavily contrasted with his demeanor in March 2023: Moore never interrupted
with delusional thoughts, was respectful and engaged during the entire
proceeding, and even appeared to be reading along as Dr. Turns testified to her
report. In other words, Moore made no showing to the circuit judge that he
was incompetent. Pate v. Commonwealth, 769 S.W.2d 46, 47 (Ky. 1989);
Branham, 97 F.3d at 855; see also Alley, 160 S.W.3d at 739 (internal citations
omitted) (“[t]he burden is on the defense to prove a defendant incompetent”).
Moore also argues that his rational participation at resentencing was
necessary. Yet, as the circuit court correctly observed, his resentencing in
February 2024 was simply a technical correction and, while Moore could speak
at his resentencing, it did not view his participation as necessary. We agree as
the issue of a defendant’s competency is not singularly restricted to one’s
rational participation. KRS 504.060(5).
9 Lastly, Moore argues that Dr. Turns’ February 2024 report contradicts
Dr. Sparks’ earlier July 2023 report. Albeit true, it is immaterial to our
analysis. Keeling, 381 S.W.3d at 261-64 (discussing two temporally separate
competency reports and the circuit court’s determination that the defendant
was competent despite his psychosis). Thus, the circuit court correctly
determined Moore was competent on February 2, 2024, the date he was
resentenced. Bishop, 118 S.W.3d at 162. We must now determine whether the
circuit court could proceed with resentencing under KRS 504.110(4).
B. The Todd Circuit Court abused its discretion when it resentenced Moore to twenty years imprisonment.
Next, Moore, relying on this Court’s language in Moore, 9 argues he was
resentenced to an illegal twenty-year sentence. 664 S.W.3d at 591. Moore
further argues that the amended original final judgment showed the sentences
for his convictions were to run concurrently. Id. at 585; see Machniak v.
Commonwealth, 351 S.W.3d 648, 652 (Ky. 2011) (reiterating that a court’s
written judgment or order is superior to oral assertions). The Commonwealth
responds that this Court simply vacated the illegal twenty-year sentence
because it was improperly attached to the PFO-2 enhancement. Moore, 664
S.W.3d at 591. Moreover, this Court directed the circuit court to resentence
Moore. Id. The Commonwealth maintains that Moore’s PFO-2 status permits
9 The relevant language vacated the “illegal twenty-year sentence for the [PFO-2]
charge,” but “it [remained] unclear from the record on appeal what sentence was imposed . . . for the two [Class] D felonies,” so “the circuit court [wa]s directed to resentence Moore on the two [Class] D felonies.”
10 him to be resentenced to twenty years imprisonment for the two underlying
Class D felonies.
Moore’s objection at resentencing properly preserved this issue for our
review. Even absent an objection, a reviewing court is not bound to affirm
illegal sentences. Spicer v. Commonwealth, 442 S.W.3d 26, 35 (Ky. 2014); Phon
v. Commonwealth, 545 S.W.3d 284, 306 (Ky. 2018). KRS 532.110(1) grants the
trial court discretion “[w]hen multiple sentences . . . are imposed on a
defendant for more than one [] crime” to determine whether the “sentences
shall run concurrently or consecutively.” We therefore review for abuse of
discretion. A trial court abuses its discretion when its decision is “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
“Generally, plea agreements in criminal cases are contracts between the
accused and the Commonwealth . . . interpreted according to ordinary contract
principles.” McClanahan v. Commonwealth, 308 S.W.3d 694, 701 (Ky. 2010).
However, illegal sentences “[are] inherently an abuse of discretion” and must be
remanded for resentencing. Id.; see also Phon, 545 S.W.3d at 304 (narrowly
holding “a sentence imposed beyond [statutory] limitations . . . is unlawful and
void”). And though written orders are superior to oral assertions, RCr 10.10
“allows a trial court . . . to correct clerical errors.” Machniak, 351 S.W.3d at
652. Clerical errors are “all errors, mistakes, or omissions which are not the
result of the exercise of the judicial function.” Id.
11 Here, Moore pled guilty to two Class D felonies, 10 each with a three-year
sentence that, because of his PFO-2 status, was enhanced to ten years to be
served consecutively. Moore’s original sentence was illegal because it
erroneously attached the twenty-year sentence to the PFO-2 enhancement,
which is prohibited. Moore’s current sentence, however, remains illegal as the
sentence imposed by the circuit court on remand goes “beyond [statutory]
limitations” and is “unsupported by sound legal principles.” Phon, 545 S.W.3d
at 304; English, 993 S.W.2d at 945.
We are guided by our recent opinion, Commonwealth v. Strunk, 11 wherein
the defendant, Strunk, argued that his thirty-year prison sentence was illegal
because it violated KRS 532.110(1)(c). ___S.W.3d ___, 2025 WL 2388141 at *1, *3
(Ky. August 14, 2025). Strunk pled guilty to two counts of second-degree
robbery, “a [Class] C felony that, unenhanced, carrie[d] a possible sentence of
five to ten years.” Id. at *3. Strunk’s PFO-2 status enhanced his “potential
sentence [to a maximum] of 10 to 20 years.” Id. (citing KRS 532.080(5); KRS
532.060(2)(b)). The trial court sentenced Strunk to twenty years for one
robbery and to ten years for the other robbery to be served consecutively for a
total of thirty years. Id. at *1. This Court found that “the trial court erred in
[its] determination” that Strunk could be sentenced outside the statutory
maximum of twenty years. Id. at *3-*4 (“when the two crimes were sentenced
10 See KRS 189A.010(5)(d); KRS 189A.090(2)(b).
11 Note: This case has yet to receive a WL published citation, so the unpublished citation is provided for now. 12 together, KRS 532.110(1)(c) was in force and the statutory cap applied”); see
Goldsmith v. Commonwealth, 363 S.W.3d 330, 334 (Ky. 2012) (“the aggregate of
the indeterminate terms may ‘not exceed in maximum length the longest
extended term which would be authorized by KRS 532.080 for the highest class
of crime which any of the sentences is imposed’”) (citing KRS 532.110(1)(c))
(emphasis added); Blackburn v. Commonwealth, 394 S.W.3d 395, 400 (Ky.
2011) (“we do not believe that KRS 533.060(2) modifies the maximum aggregate
duration allowed by KRS 532.110(1)”); Cummings v. Commonwealth, 226
S.W.3d 62, 68 (Ky. 2007) (remanding “for imposition of sentence not to exceed
the . . . maximum imposed by operation of law”); Phon, 545 S.W.3d at 310
(remanding for imposition of “the lawful sentence of [life without parole for
twenty-five years]”).
Accordingly, the circuit court abused its discretion when it resentenced
Moore to twenty years imprisonment for two Class D felonies, notwithstanding
this Court’s previous order directing Moore be resentenced “pursuant to KRS
532.110 and KRS 532.080.” Moore, 664 S.W.3d at 591 (emphasis added).
Moore pled guilty to two Class D felonies, which both carried indeterminate
sentences ranging between one and five years. KRS 532.060(2)(d). However,
his PFO-2 status elevated his two Class D felonies to Class C felonies. KRS
532.080(5). “Because the maximum length authorized by KRS 532.080 for an
enhanced Class [D] felony is [ten] years, the aggregate of [Moore’s] consecutive
sentences . . . could not exceed that amount.” Blackburn, 394 S.W.3d at 401
(citing KRS 532.110(1)(c)); KRS 532.060(2)(c). Because “the illegality of
13 [Moore’s] sentence stems from its [excessive length], resentencing should be
limited to the imposition of the highest possible legal sentence, pursuant to
Phon”; in other words, no more than ten years imprisonment. Strunk, 2025 WL
2388141 at *8; KRS 532.110(1)(c)(1); KRS 532.080(5); KRS 532.060(2)(c).
As such, our foregoing determination precludes the need to address
Moore’s secondary argument that the amended original final judgment showed
the sentences were to be served concurrently, even though the circuit court
stated they were to run consecutively.
III. CONCLUSION
Based on the foregoing, we affirm in part and reverse in part the Todd
Circuit Court’s decision. We further vacate the imposed twenty-year sentence
at Moore’s February 2024 resentencing and remand for resentencing by the
Todd Circuit Court in accordance with this opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kayla Danielle Deatherage Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Melissa Ann Pile Assistant Attorney General