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Myers v. Commonwealth1/25/2001
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE COOPER
REVERSING AND REMANDING
Appellant Donald Myers was indicted on one count of murder, eight counts of wanton endangerment in the first degree, one count of operating a motor vehicle while under the influence of alcohol (DUI), and one count of attempting to elude police. All of the charges arose out of a February 3, 1996 incident during which Appellant, while severely intoxicated, operated his motor vehicle east in the westbound lanes of Interstate Highway 64 in Jefferson County, Kentucky, ultimately colliding head-on with another vehicle. A passenger in the other vehicle died at the scene and three other occupants of that vehicle suffered minor injuries. The five additional wanton endangerment charges pertained to the occupants of other westbound vehicles which barely missed being struck by Appellant's vehicle prior to the fatal collision.
On October 22, 1996, Appellant and the Commonwealth entered into a written plea agreement that provided that Appellant would plead guilty to (1) an amended charge of manslaughter in the second degree, for which the Commonwealth would recommend a sentence of ten years; (2) eight counts of wanton endangerment in the first degree, for which the Commonwealth would recommend sentences of five years each, " 11 to run concurrently except for three wanton endangerment counts which shall run consecutively for a total sentence of 25 years;" and (3) both DUI and attempting to elude police, for which the Commonwealth would recommend sentences of thirty days and ninety days respectively, both to run concurrently with the other sentences, for a total sentence to serve of twenty-five years. The agreement further recited that " he defendant agrees to waive the provisions of KRS 532.1 lO(1 c) (sic) and that the Commonwealth would oppose probation and shock probation.
A "Boykin hearing"' was then held, during which the trial judge determined that Appellant's guilty pleas were voluntary; however, the trial court did not inquire into the voluntariness of Appellant's waiver of the provisions of KRS 532.11 O(l)(c). A sentencing hearing was held on December 13, 1996, following which Appellant was sentenced pursuant to the plea agreement to an aggregate term of twenty-five years in prison. Again, the written waiver of KRS 532.1 IO(l)(c) was not discussed. Appellant did not appeal.
On June 19, 1997, Appellant filed his present motion pursuant to RCr 11.42 to correct his sentence, asserting (1) the twenty-five year sentence exceeded the maximum aggregate term permitted by KRS 532.1 IO(l)(c); and (2) his attorney provided ineffective assistance of counsel by advising him to agree to an illegal sentence. The trial judge summarily overruled the motion without an evidentiary hearing. The Court of Appeals affirmed, and we granted discretionary review.
KRS 532.11 O(l)(c) provides that " 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. . . .'I The highest class of crime for which Appellant was sentenced was manslaughter in the second degree, a Class C felony. KRS 507.040(2). The longest extended term authorized by KRS 532.080 for a Class C felony is twenty years. KRS 532.080(6)(b); Commonwealth v. Durham, Ky., 908 S.W.2d 119 (1995). Thus, the maximum aggregate length of the consecutive terms to which Appellant could be sentenced under KRS 532.11 O(l)(c) was twenty years. Youna v. Commonwealth, Ky., 968 S.W.2d 670, 675 (1998); Hendlev v. Commonwealth, Ky., 573 S.W.2d 662, 668 (1978). The issues on
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