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Adams v. Commonwealth7/14/2000
VACATING AND REMANDING
These are two appeals from two judgments of conviction wherein the court determined that appellant was ineligible for probation under KRS 533.060(2) because the offenses were committed while appellant was on parole from a prior felony conviction. Appellant argues that regardless of the fact that he committed the offenses while on parole from a prior felony, he was eligible for probation under KRS 532.080(5) and KRS 533.030(7) because the present offenses were all Class D nonviolent felonies. We hold that KRS 532.080(5) and KRS 533.030(7) control over KRS 533.060(2) and, thus, appellant was eligible for probation as to two of the offenses and the PFO II conviction. Hence, we vacate the judgment and remand for re-sentencing as to those offenses. As to the DUI 4th conviction, appellant was eligible for probation as to part of his sentence under KRS 189A.010(7). Hence, we likewise vacate the sentence on the DUI 4th offense and remand for re-sentencing thereon.
It is undisputed that appellant, Darrell Adams, was on parole from a prior felony conviction when on February 3, 1997, he committed the offenses of driving under influence, fourth offense (DUI 4th), and operating a motor vehicle on a suspended license due to a DUI 3rd offense. When Adams failed to appear for trial and while he was still on parole from his previous conviction, he was additionally charged with bail jumping in the first degree and PFO II. On February 19, 1999, Adams pled guilty to DUI 4th (a Class D felony), operating a motor vehicle on a suspended license (a Class D felony), and PFO II. On April 23, 1999, Adams pled guilty to bail jumping in the first degree (a Class D felony). On April 28, 1999, the court entered its final judgment sentencing Adams to one year on the DUI 4th offense and one year on the operating a motor vehicle on a suspended license offense - enhanced to five years because of the PFO II offense, for a total of six (6) years' imprisonment. In the judgment, the court specifically stated, "Defendant is statutorily ineligible for probation pursuant to 533.060." On that same date, the court entered a separate final judgment on the first-degree bail jumping conviction, sentencing Adams to one year in prison. In that judgment, the court also stated, "Defendant is statutorily ineligible for probation pursuant to 533.060."
From the court's refusal to consider probation in these judgments, Adams now appeals.
Contrary to the Commonwealth's contention that the issue was unpreserved, Adams's attorney requested probation at the sentencing hearing and filed a memorandum in support thereof. Adams argues that under KRS 532.080(5), he was eligible for probation on the charges of operating a motor vehicle on a suspended license and PFO II. KRS 532.080(5) provides as follows:
A person who is found to be a persistent felony offender in the second degree shall be sentenced to an indeterminate term of imprisonment pursuant to the sentencing provisions of KRS 532.060(2) for the next highest degree than the offense for which convicted. A person who is found to be a persistent felony offender in the second degree shall not be eligible for probation, shock probation, or conditional discharge, unless all offenses for which the person stands convicted are Class D felony offenses which do not involve a violent act against a person, in which case probation, shock probation, or conditional discharge may be granted. A violent offender who is found to be a persistent felony offender in the second degree shall not be eligible for parole except as provided in KRS 439.3401. (emphasis added).
Adams maintains that he was eligible for probation on the first-
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