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Cole v. Commonwealth10/14/2005
AFFIRMING
BEFORE: DYCHE, KNOPF, AND TACKETT, JUDGES.
Julius Cole appeals from an order of the McCracken Circuit Court, entered September 29, 2004, revoking his conditional discharge from prison and ordering him to serve the remaining three years of his sentence. Cole contends that the statute creating the three-year extension of his sentence is an unconstitutional usurpation by the General Assembly of a judicial function and that the extension amounts to a cruel and unusual punishment. Because Cole's attack upon the statute was not preserved and because his four-year total sentence for first-degree sexual abuse is not grossly disproportionate, we affirm.
In April 2003, a McCracken County jury found Cole guilty of first-degree sexual abuse, a Class-D felony in Chapter 510 of the Penal Code, and fixed his sentence at one year in prison. Cole was accused of having forcibly fondled the breasts of a girl less than twelve years of age. His felony implicated KRS 532.043, which provides in pertinent part that
(1) In addition to the penalties authorized by law, any person convicted of . . . a felony offense under KRS Chapter 510 . . . shall be subject to a period of conditional discharge following release from . . .
ncarceration upon expiration of sentence;
(2) The period of conditional discharge shall be three (3) years;
(3) During the period of conditional discharge, the defendant shall (a) Be subject to all orders specified by the Department of Corrections; (b) Comply with all education, treatment, testing, or combination thereof required by the Department of Corrections. . . .
(5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing to the Commonwealth's attorney in the county of conviction. The Commonwealth's attorney may petition the court to revoke the defendant's conditional discharge and reincarcerate the defendant as set forth in KRS 532.060.
KRS 532.060(3) provides that
or any felony specified in KRS Chapter 510 . . . the sentence shall include an additional three (3) year period of conditional discharge which shall be added to the maximum sentence rendered for the offense. During this period of conditional discharge, if a defendant violates the provisions of conditional discharge, the defendant may be reincarcerated for: (a) The remaining period of his initial sentence, if any is remaining; and (b) The entire period of conditional discharge, or if the initial sentence has been served, for the remaining period of conditional discharge.
Accordingly, by judgment entered June 2, 2003, the McCracken Circuit Court sentenced Cole to one year in prison plus three years of conditional discharge, in effect a four-year sentence. Cole served out the first year and was conditionally discharged from prison in February 2004. Among the conditions of his discharge were requirements that he complete a two-year sex-offender treatment course, that he refrain from drinking alcohol, and that he not be convicted of any additional crimes.
In June 2004, he was brought before the Court on allegations that he had refused to attend sex-offender treatment classes. When he explained that he did not refuse to take the classes but only sought to postpone commencing them until his car was operable, which it then was, the court gave him the benefit of the doubt and did not revoke his discharge.
Only four months later, however, in September 2004, Cole was again brought before the court on allegations this time that he had pled guilty to a charge of driving under the influence. During the he
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