Fredrick R. Miller v. Commonwealth of Kentucky ( 2021 )

RENDERED: AUGUST 20, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0326-MR
FREDERICK R. MILLER1 APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JULIE M. GOODMAN, JUDGE
ACTION NOS. 13-CR-00829 AND 13-CR-01310
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Frederick Miller, pro se, appeals from an order of the
Fayette Circuit Court which denied his motion to correct his sentence. Appellant
1
The Appellant’s first name appears to be misspelled in the notice of appeal. We have adopted
the spelling from his pro se brief and the record below.
argues that his twenty-nine-year sentence is in violation of statutory law. We find
no error and affirm.
FACTS AND PROCEDURAL HISTORY
Appellant was incarcerated while awaiting trial on case number 13-
CR-00829. He was granted a day pass to attend a funeral, but failed to return.
Upon his arrest, he was charged with second-degree escape,2 first-degree fleeing or
evading police,3 and being a persistent felony offender (PFO) in the first degree4 in
case number 13-CR-01310. For 13-CR-00829, Appellant entered a guilty plea to
two counts of second-degree robbery5 and PFO in the first degree. Pursuant to the
plea agreement, he was sentenced to fifteen years in prison. Appellant proceeded
to a jury trial in 13-CR-01310. The jury found him guilty of second-degree escape
and PFO in the first degree. The jury was unable to reach a verdict on first-degree
fleeing or evading police, but Appellant chose to plead guilty to second-degree
fleeing or evading police.6 Appellant was then sentenced to fourteen years in
2
Kentucky Revised Statutes (KRS) 520.030.
3
KRS 520.095.
4
KRS 532.080(3).
5
KRS 515.030.
6
KRS 520.100.
-2-
prison. The two sentences were then set to run consecutively, for a total of twenty-
nine years in prison. All of the felony charges of which Appellant was convicted
were Class C and Class D felonies.
Around five years later, Appellant filed a motion seeking to correct
his sentence. He argued that the total number of years he is to be incarcerated
violated KRS 532.110(1)(c), which states:
(1) When multiple sentences of imprisonment are
imposed on a defendant for more than one (1) crime,
including a crime for which a previous sentence of
probation or conditional discharge has been revoked, the
multiple sentences shall run concurrently or
consecutively as the court shall determine at the time of
sentence, except that:
...
(c) 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. In no
event shall the aggregate of consecutive
indeterminate terms exceed seventy (70) years[.]
Looking at KRS 532.080, we see that KRS 532.080(6)(b) states:
(6) A person who is found to be a persistent felony
offender in the first degree shall be sentenced to
imprisonment as follows:
...
(b) If the offense for which he presently stands
convicted is a Class C or Class D felony, a
-3-
persistent felony offender in the first degree shall
be sentenced to an indeterminate term of
imprisonment, the maximum of which shall not be
less than ten (10) years nor more than twenty (20)
years.
Appellant’s motion seeking to correct his sentence argued that when
reading KRS 532.110(1)(c) and KRS 532.080(6)(b) together, he should not have
been incarcerated for more than twenty years. The trial court denied his motion
and this appeal followed.
ANALYSIS
We believe the trial court was correct in denying Appellant’s motion
and conclude that his twenty-nine-year sentence was appropriate. KRS 532.110(3)
states:
Notwithstanding any provision in this section to the
contrary, if a person is convicted of an offense that is
committed while he is imprisoned in a penal or
reformatory institution, during an escape from
imprisonment, or while he awaits imprisonment, the
sentence imposed for that offense may be added to the
portion of the term which remained unserved at the time
of the commission of the offense. The sentence imposed
upon any person convicted of an escape or attempted
escape offense shall run consecutively with any other
sentence which the defendant must serve.
Here, Appellant was incarcerated, granted a day pass, and failed to return. He was
arrested and subsequently charged with escape. KRS 532.110(3) applies to this
scenario. The felony escape conviction was required to run consecutively to the
-4-
robbery conviction, even though it would exceed the usual aggregate twenty-year
maximum sentence. Appellant’s twenty-nine-year sentence does not violate
statutory law. In addition, our holding today is in line with identical holdings in
King v. Commonwealth, 374 S.W.3d 281, 297 (Ky. 2012), and Gaither v.
Commonwealth, 963 S.W.2d 621, 622-23 (Ky. 1997), as modified on denial of
reh’g (Apr. 16, 1998).
CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court.
Appellant’s total sentence of twenty-nine years does not violate Kentucky law.
Both statutory law and case law deem it proper.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Frederick R. Miller, pro se Daniel Cameron
Eddyville, Kentucky Attorney General of Kentucky
Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky
-5-