Calvin Andrew McKinney v. Commonwealth of Kentucky

RENDERED: SEPTEMBER 1, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0798-MR
CALVIN ANDREW MCKINNEY APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
v. HONORABLE JOHN GRISE, JUDGE
ACTION NO. 85-CR-00768
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
DIXON, JUDGE: Calvin McKinney appeals from the order of the Warren Circuit
Court, entered May 23, 2022, denying his motion to correct his sentence pursuant
to CR1 60.02(e) and CR 60.02(f). Following review of the record, briefs, and law,
we reverse and remand for proceedings consistent with this Opinion.
1
Kentucky Rules of Civil Procedure.
BACKGROUND FACTS AND PROCEDURAL HISTORY
In 1986, when he was 17 years old, McKinney entered a guilty plea to
intentional murder, first-degree robbery, second-degree burglary, and theft by
unlawful taking over $100. The trial court sentenced McKinney to life for murder
plus a total of 35 years’ incarceration for the remaining offenses. All sentences
were ordered to run consecutively with each other and consecutively to the life
sentence.
McKinney filed his first post-conviction motion in 1989 pursuant to
RCr2 11.42, claiming ineffective assistance of counsel. The trial court denied
relief, and this Court affirmed. In 2006, McKinney filed a second collateral attack
on his conviction pursuant to both RCr 11.42 and CR 60.02. The trial court denied
relief, and this Court again affirmed.3 In 2019, McKinney, pro se, filed the
underlying motion for relief. The trial court appointed counsel, who supplemented
the motion. McKinney argued trial counsel failed to review his presentence
investigation pursuant to KRS4 532.050(4) and also that his sentence of life plus 35
years was illegal pursuant to Bedell v. Commonwealth, 870 S.W.2d 779 (Ky.
1993).
2
Kentucky Rules of Criminal Procedure.
3
See McKinney v. Commonwealth, No. 2009-CA-1166-MR, 2011 WL 43235 (Ky. App. Jan. 7,
2011).
4
Kentucky Revised Statutes.
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The trial court denied relief, finding that KRS 532.050(4) was
inapplicable because McKinney had not been convicted of a sex crime. The trial
court also denied relief pursuant to CR 60.02, reasoning that Bedell created a new
rule of law, and new rules of law “are not to be retroactively applied in the context
of collateral attacks.” Leonard v. Commonwealth, 279 S.W.3d 151, 160 (Ky.
2009). This appeal followed.5
STANDARD OF REVIEW
This Court reviews orders on CR 60.02 motions for abuse of
discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (citation
omitted). “The test for abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Foley v.
Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citation omitted).
LEGAL ANALYSIS
When McKinney was sentenced in 1986, KRS 532.110(1)(c) provided
“[t]he 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.”6 In Rackley
5
On appeal, McKinney merely requests in a footnote that this Court consider his argument
related to KRS 532.050(4). He fails to expand any argument in his brief related to the statute.
Therefore, we decline to address it.
6
KRS 532.080 addresses sentencing for persistent felony offenders.
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v. Commonwealth, 674 S.W.2d 512 (Ky. 1984), the Kentucky Supreme Court
interpreted the statutory language to mean capital cases were an exception and,
therefore, there were no statutory prohibitions to running a life sentence
consecutive to a 20-year sentence for burglary. However, Rackley was overruled
by Bedell in 1993, when our highest court held that “no sentence can be ordered to
run consecutively with such a life sentence in any case, capital or non-
capital.” Bedell, 870 S.W.2d at 783. In the instant action, the Commonwealth
argues Rackley was still controlling in 1986 when McKinney was sentenced in a
capital case and, therefore, McKinney’s sentence was legal at the time it was
imposed. Due to recently published caselaw, however, we are compelled to
disagree.
In July 2022, approximately two months after the trial court entered
its order denying relief to McKinney, this Court published Meadows v.
Commonwealth, 648 S.W.3d 701 (Ky. App. 2022). In that case, Meadows argued
his sentence of life plus a combined total of 25 years’ incarceration, to be served
consecutively, was impermissible pursuant to Bedell. Meadows unequivocally
determined the holding in Bedell is retroactive. In its analysis, a panel of this
Court also looked to Phon v. Commonwealth, 545 S.W.3d 284 (Ky. App. 2018),
and reasoned that the Court was required to “retroactively apply a ruling when it
consists of merely a clarification of an already existing sentencing statute. Id. at
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301. See also Duncan v. Commonwealth, 640 S.W.3d 84 (Ky. App. 2021).”
Meadows, 648 S.W.3d at 705. This Court then held:
[b]ased upon the holdings in Phon and Duncan,
Appellant is entitled to challenge the allegedly illegal
sentence under CR 60.02 even though he did not file the
motion within a reasonable time. Applying the principles
of Bedell and Phon to Appellant, the holding of Bedell
would appear to be retroactive. The relevant portion of
the statute in question in Appellant’s case, KRS 532.110,
is unchanged since the time of Appellant’s sentencing in
1977. The clarification of the statute’s application via
Bedell did not adopt a new rule of constitutional law or
procedure but was merely a new interpretation of the
same statute. Appellant is correct in the assertion that
this case is governed retroactively by Bedell[.]
Id.
Ultimately, this Court affirmed the trial court and denied relief to
Meadows, recognizing an important exception to Bedell, which provides a life
sentence can run consecutively to a previously imposed sentence. See Stewart v.
Commonwealth, 153 S.W.3d 789 (Ky. 2005). This exception applied in Meadows,
because Meadows’ sentences were the result of multiple trials and guilty pleas. In
other words, there were multiple sets of facts related to separate indictments. Most
importantly, due to the numerous trials and pleas involved, Meadows’ various
sentences were imposed at varying times. Because Meadows had sentences
previously imposed, this Court determined his sentences could run consecutively,
including the life sentence. This exception does not apply to McKinney because
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his sentences were imposed at the same time and involved just one set of facts (i.e.,
there is no previously imposed sentence).
Meadows is directly on point. Because Bedell did not adopt a new
rule of law but simply provided a new interpretation of KRS 532.110, the holding
in Bedell is retroactive. The remedy is to have the trial court correct McKinney’s
sentence. See Phon, 545 S.W.3d at 308-09.
CONCLUSION
Accordingly, we REVERSE AND REMAND to the Warren Circuit
Court for proceedings consistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Alana S. Meyer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Courtney E. Albini
Assistant Attorney General
Frankfort, Kentucky
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