Lienhart v. Commonwealth ( 1997 )

WINTERSHEIMER, Justice,

concurring in part and dissenting in part.

I concur with that part of the opinion which affirms the conviction and sentence for first-degree burglary. However, I respectfully dissent from that part of the opinion which reverses the persistent felony conviction and orders a remand. The trial judge was correct in denying Lienhart’s motion for a directed verdict on the PFO matter.

The charge used to enhance the conviction of Lienhart as being a second-degree persistent felony offender was not outside the five-year time limit established by KRS 532.080(2).

A careful review of the facts indicates that Lienhart was first convicted of a felony charge on January 13, 1987, when he was 16 years old. He was sentenced to five years. Lienhart was later convicted of promoting contraband in the first degree on October 31, 1989, and received a one-year sentence which was to run concurrently with the sentence from the January 13, 1987 conviction. Five years from January 1987 would be January 1992. Lienhart was actually discharged on September 15, 1991, which was within the five-year time limit of the statute. Even if this five-year time was calculated from the sentence on first-degree promoting contraband, Lienhart would have served out his one year sentence in October of 1990, which was also within the five-year time limit.

The date of actual discharge, September 15, 1991, was within the five-year limitation of KRS 532.080(2)(e)(l). The conviction on promoting contraband in the first degree was separate and distinct from any other prior conviction despite the fact that this sentence ran concurrent with the sentence of January 13, 1987. The evidence indicates that Lien-hart completed penal service for the first-degree promoting contraband conviction on September 15, 1991, which is within five years of September 4, 1995, the date on which he committed the burglary.

Consequently, the argument that the statute prohibits the second-degree PFO enhancement is without merit. Brock v. Sowders, Ky., 610 S.W.2d 591 (1980), is not applicable to this situation. The trial judge was correct in denying the motion for a directed verdict of acquittal on the PFO charge.

I would affirm the judgment of the circuit court in all respects.