Kentucky Sentencing Law: Some Scenarios

Sentencing: the Good, the Bad, and
the Conflicting Statutes
Creatively advocate for your clients, and achieve the
negotiated outcome.
What Do You Have to Know?
Aggregating Sentences
Sex Offender laws
Concurrent
vs.
Consecutive
Collateral
Consequences
Client’s record
Probation
Eligibility
Violent Offender laws
Persistent Felony
Offender Statutes
Double Enhancement
Parole Eligibility
Aggregating
Sentences
Jane is charged with 3 counts of TBUT U/$500.
What is her maximum possible sentence?
A. 1 year
B. 3 years (1 year max on
each x 3 = 3 years)
C. 2 years
D. 18 months
KRS 532.110(1)(b):
Multiple misdemeanor convictions cannot be
aggregated for more than one (1) year.
Mark is charged with 4 class-D felonies and 3 class-C
felonies. The offer is 25 years to serve. Good offer?
A. Yes, he is facing 70
years, yikes!
B. Yes, he is facing 50
years.
C. No, he is facing 20
years, max.
D. No, 25 is never a good
offer.
Felonies – Class C and D
KRS 532.110(1)(c) in fancy language, limits the
aggregation of consecutive felony terms of C or D
felonies to a maximum of 20 Years.
Fancy Language: “the maximum amount of time
one could get if the longest felony charged were
enhanced by a PFO 1st under KRS 532.080.”
 Class D = 1-5 years
 Class C = 10-20 years
 Class D + PFO 1 = 10-20 years
 Class C + PFO 1 = 10-20 years
The Break Down
Under KRS 532.080(6)(b), a PFO 1st on a
Class-D or a Class-C felony raises either one
of them to a possible sentence of 10-20 years.
So, Class-C and Class-D felonies cannot be
aggregated for more than 20 years.
What if your client is on felony probation or
parole, and is convicted of new C and D
felonies?
Charges can be run concurrent or consecutive.
Peyton v. CW, 253 S.W.3d 504 (Ky.
2008)(overruling Devore v. Comm.).
BUT, if they are run consecutively, they cannot
exceed 20 years. Blackburn v. Comm., 394
S.W.3d. 395 (Ky. 2011).
KRS 532.110(1)(c):
As of 1998, set a limit of aggregated consecutive
felony terms of years at 70 years.
PRACTICE TIP:You are entitled to a jury
instruction stating that consecutive sentences
cannot exceed 70 years. Allen v. Comm., 276
S.W.3d 768 (Ky. 2008).
What if the client agrees to more time?
If your client accepts probation to more than
the statutory maximum and is later revoked,
the Court cannot impose the illegal
sentence. McClanahan v. Commonwealth,
308 S.W.3d 694 (Ky. 2010).
Consecutive v.
Concurrent
- ALL NEW OFFENSES -
Joe is convicted of Rape 1st and murder. What
is the longest term of years he can receive?
A. 50 years
B. 70 years
C. 100 years (50 on
murder + 50 on rape)
D. There is no maximum
on murder.
No sentence for a term of years, received at the same time as a
life sentence, can run consecutively to that life sentence.
Bedell v. Com., 870 SW2d 779 (Ky. 1993).
The same rule applies for:
 Life Without Parole for 25 years (LWOP)
 Life Without Parole
NOTE: a life sentence can run consecutive to a term of years if
the sentences are imposed on different cases, and the client was
on probation or parole for one of the offenses at the time that
the second offense was committed.
James is convicted of RSP O/$500 and RSP
U/$500, what is his maximum possible sentence?
A. 5 years.
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C. Less than 1 year
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D. Up to DOC.
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A definite term of imprisonment will run concurrently with an
indefinite felony. KRS 532.110(1)(a).
Serving out the indefinite term will satisfy both sentences. KRS
532.110(1)(a).
This is true when the sentences are imposed by separate courts.
Powell v. Payton, 544 S.W.2d 1 (Ky. 1976).
Hypothetical: Client is charged with a felony and a
misdemeanor. He accepts a diversion on the felony, but enters a
guilty plea on the misdemeanor. His 120-days of jail credit is
applied to the misdemeanor. 2-years later, his diversion is
voided and he is sentenced to 3-years. Does he have jail credit?
Answer: He is entitled to 120 days of jail credit. The client is
entitled to credit for the time he served on the misdemeanor
when the diversion is revoked. Prather v. Comm., 544 S.W.2d
1 (Ky. 1976).
Must be Decided at Sentencing
Whether sentences will be concurrent or
consecutive must be decided at the time of
sentencing. Machniak v. Commonwealth, 351
S.W.3d 648 (Ky. 2011).
Example: Judge tells your client that her
sentences will be concurrent if she is
successful on probation, but consecutive if she
is revoked.
Consecutive v.
Concurrent
- NEW SENTENCE AND REVOKED SENTENCE -
Sue is on felony probation and commits a new felony. At
the time of sentencing, she has not been revoked.
Concurrent or consecutive?
A. Concurrent, because
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While on Probation
Although KRS 533.040(3) seems to require a
sentence of probation be revoked to cause the
new charges to run consecutively, KRS
533.060(2) controls over that statute.
Therefore, the new sentence CANNOT run
concurrent to the old probated sentence. Brewer
v. Com., 922 SW2d 380 (Ky.1996)
Does time of revocation matter?
KRS 533.040(3) states that a revoked probation sentence must
run consecutive with a prison sentence.
BUT … revocation shall take place prior to parole or
expiration of sentence of imprisonment OR within 90-days
of grounds for revocation coming to the attention of DOC,
whichever occurs first.
IF this deadline is missed, then the revoked sentence and the
new sentence must be run concurrently.
What if the agreement remains silent on the
issue of concurrent versus consecutive?
KRS 532.110(2) seems to give a judge the ability to
run the charges concurrently simply by not
specifying how they should run.
BUT KRS 533.060(2) controls in the case of
felonies committed on felony probation.
If the agreement is silent, DOC will fix the
issue for you, and run them consecutively.
Riley v. Parke, 740 SW2d 934 (Ky. 1987)
THANKS, DOC!!
Jack is convicted of DUI 2nd while on felony
probation. Concurrent or consecutive?
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C. Discretion of the
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A. Concurrent under the
A new misdemeanor sentence may run
consecutive to a revoked felony sentence, but it
is not mandatory.
WHY??
… Conflicting Statutes ….
KRS 532.110(1)
“When multiple sentences are imposed on a defendant for
more than one crime, including a crime for which a
previous sentence of probation…has been revoked,
the…sentences shall run concurrently or
consecutively…except that a definite and an indefinite
term shall run concurrently…”
Definite = misdemeanor (day for day)
Indefinite = felony (PE and good time applied)
KRS 533.040(3)
“A sentence of probation…shall run concurrently with any federal
or state jail, prison, or parole term for another offense to which the
defendant is or becomes subject during the period, unless the
sentence of probation is revoked.”
Since the two statutes obviously conflict, the court may run the
new charge consecutive to the old felony, but doesn’t have to.
Snow v. Com., 927 SW2d 841 (Ky.App. 1996)
Zoe is on misdemeanor probation when she commits and
is sentenced on a felony. Concurrent or consecutive?
A. They must run
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Whether the felony is committed first or second, the same
conflict in laws exists. Therefore, the answer is the same.
The court may run the sentences concurrently or
consecutively. Warren v. Com., 981 SW2d 134 (Ky.App. 1998)
JoJo is on misdemeanor probation and is
convicted of a second misdemeanor. Concurrent
or consecutive?
A. The sentences must be
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This involves a conflict between KRS 532.110(1)(b), which says
aggregated misdemeanors cannot exceed 1 year, and KRS
533.040(3) which allows consecutive sentences when probation has
been revoked.
Again, the Court may run them consecutively, but doesn’t have to.
Walker v. Com., 10 SW3d 492 (Ky. App. 1999)
So what happens in these situations if the
court is silent with respect to concurrent
or consecutive?
They must run concurrently!
BUT, WAIT!
WHAT ABOUT THAT 1-YEAR
RULE FOR MISDEMEANORS??
KRS 532.110(1) states that:
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:
(b) The aggregate of consecutive definite terms shall not
exceed one (1) year.
CHALLENGE THIS!
Arguments:
o Misdemeanors convictions should not carry
felony time.
o Without good time, misdemeanors being
punished more harshly than felonies.
o Cost to the County.
o Same logic as the C and D rule under Peyton &
Blackburn.
Consecutive v.
Concurrent
- Sex Crimes, Armor Piercing Ammo,
and Escape … oh, My! -
Chester is convicted of two (2) counts of Class-D Sex
Abuse, 1st. Count 1 relates to A.B. Count 2 relates to C.D.
What is his minimum possible sentence?
A. 1-year
25%
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C. 5-years
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Sex Crimes
Two or more sex crimes involving two (2) or
more victims MUST run consecutively with
one another. KRS 532.110(1)(d)
Prohibited Ammo
Use of armor-piercing or flanged ammunition
in the commission of a crime
If found guilty of the crime and the offense of
using restricted ammunition, the two
sentences have to run consecutively. KRS
527.080(3)
Client is charged with Assault 3rd and Escape 1st.
What is his minimum possible sentence?
A. Escape 1st is a C-felony,
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25% 25% 25% 25%
Escape
KRS 532.110(3) requires that sentences imposed for the crime of
escape to run consecutive to “any other sentence” the defendant
must serve.
Therefore if convicted of both offenses, your client could receive:
 1-5 years on Assault 3rd (Class D felony)
 5-10 years on Escape 1st (Class C felony)
 Minimum on Assault (1) + Minimum on Escape (5) = 6 years
Time of Revocation
What if client is on probation for a felony, then is convicted of
escape. But they wait more than 90-days from conviction to
revoke his old felony sentence? Then it is concurrent, right?
NOPE 
KRS 532.110(3) controls over KRS 533.040(3), so the old
felony sentence will still run consecutively to the new escape
charge. Wilson v. Com., 78 SW3d 137 (Ky.App. 2001)
Awaiting Trial – KRS 533.060(3)
When a person commits an offense while awaiting trial for
another offense, and is subsequently convicted of both the
original offense, and the “awaiting trial” offense, the sentences
shall not run concurrently.
Your client is not “awaiting trial” if …
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20% 20% 20% 20% 20%
The client is “awaiting trial,” even if he didn’t know he had been
indicted yet. Moore v. Com., 990 SW2d 618 (Ky. 1999).
The client is still “awaiting trial” until the sentencing is over.
Cosby v. Com., 147 SW3d 56 (Ky. 2004).
This includes “awaiting trial” on misdemeanors. Handley v.
Com., 653 SW2d 165 (Ky.App. 1983).
PROBATION
ELIGIBILITY
- NEW FELONIES WHILE ON FELONY PROBATION -
Can a client who is on probation for a
prior felony EVER qualify for probation?
YES!
There are some exceptions to KRS 533.060(2) that will allow
for a person who is on probation to receive probation on a
subsequent offense.
Candice is on felony probation. She is then convicted of a
new felony. Under what circumstance can she receive
probation?
A. If both offenses involve
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the use of a firearm.
B. If both offenses are
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C. If one offense is a classD felony.
D. Probation never
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25% 25% 25% 25%
The Class-D Exception
KRS 533.030(6) says that the prohibition in KRS
533.060(2) against probating new felonies
committed while on felony probation, doesn’t
apply to Class D felonies!
What this means is that, even though the new
felony offense must run consecutively to the old
one, it can still be probated if it is a Class-D
felony. Adams v. Com., 46 SW3d 572 (Ky.App.
2000).
May is convicted of TBUT U/$10K and PFO 1st. The jury
recommends 20 years. Her 2 prior felonies are also TBUT
U/$10K. Can her new sentence be probated?
A. Yes, because all
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same offense.
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25% 25% 25% 25%
All Class D Felonies
Since they are all Class-D felonies, none of
which involved violence or a sex crime, yes
he can. KRS 532.080(7)
PROBATION
ELIGIBILITY
- SEX OFFENSES-
Can my client convicted of a sex
offense ever be probated?
YES!
There are some exceptions to KRS 533.060(2) that will allow
for a individuals convicted of Class-D sex offenses to receive a
probated sentence.
Ineligible for Probation: Sex Offenses
BUT … There are other prohibitions on many of the sexual
based offenses:
See, KRS 532.045 for sex offenses which cannot be probated
and the special criteria for those.
See, Trial Law Notebook, p. 89
PROBATION
ELIGIBILITY
- PROJECTILE WEAPON-
Joe pleads guilty to convicted felon in possession of a handgun,
probation at the discretion of the court. Prosecutor says he cannot be
probated because projectile weapon used. You argue?
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after 20%.
B. It must be to serve, unless
the Judge shows mercy.
C. It must be to-serve, unless
James goes to treatment.
D. Possession of a handgun is
not use of a projectile
weapon. Probation
allowed.
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Projectile Weapon
The prohibition against probation in KRS
533.060(1) requires “use” of a projectile
weapon. Mere possession of one is not
enough. Haymon v. Com., 657 SW2d 239
(Ky. 1983).
PAROLE ELIGIBILITY
Mike is considering an offer of 30-years to serve
on murder. What is his parole eligibility?
A. 85% of 30 years =
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B. 20 years.
C. It’s up to DOC.
D. 7 months and 20 days
per year = 18.9 years.
Parole eligibility for any violent offender with a sentence
where 85% exceeds 20 years, is 20 years.
 This is any sentence over 23 ½ years.
This is because the parole eligibility for life is 20 years,
and violent offenders cannot have a parole eligibility for
a term of years greater than if they had gotten life
instead. Hughes v. Com., 87 SW3d 850 (Ky. 2002)
Parole Eligibility Basics
 Capital (i.e. all murder), Class A, or B involving death or
serious injury – 85%
 Manslaughter 2nd or Reckless Homicide where the
victim is a peace officer and Theft by Unlawful Taking
where the taking is of $10M+ - 50%
 Class B not involving death or serious injury and violent
and nonviolent Class C’s & D’s – 20%
 Multiple nonviolent Class D’s with total aggregated
sentence of less than 5 years
– 15% or 2 months,
whichever is longer.
PERSISTENT FELONY
OFFENDER
P.F.O. – KRS 532.080
WHAT YOU NEED TO KNOW:
1. Has your client been convicted of a prior
felony?
2. How old is your client?
3. When was the prior sentence completed?
4. What is the nature of the prior offense?
5. What is the nature of the current offense?
Convicted of a Prior Felony?
Why is this important?
If your client has been convicted of a prior felony, whether instate or out-of-state, then the prior felony may trigger the
Persistent Felony Offender Statute. KRS 532.080.
The PFO statute is overly complicated, extremely punitive, and
probably one of the most harsh persistent felony offender
statutes in the nation.
Age of Client?
 Two separate time periods to Investigate
 Age when past crimes were committed
 Age at time of current conviction
WHY?
For PFO to Apply:
1. Client MUST have been over 18 when prior offense was
committed.
2. Client MUST be over the age of 21 when current crime was
committed.
Any prior felonies? If so, when?
To trigger PFO, your client must have “completed service of the
sentence imposed on the previous felony conviction within five (5)
years prior to the date of commission of the felony for which he
now stands convicted.”
QUESTION 1:
Date 1: Date of COMPLETION of the most recent prior felony
Date 2: Date of the OFFENSE in the new case.
IF OUTSIDE 5-YEARS = NO P.F.O.!!
IF INSIDE 5-YEARS – QUESTION 2:
Any other prior felonies?
Examples of within 5-years:
1. Currently on probation;
2. Currently on parole;
3. Currently serving a sentence (incident occurred
while incarcerated; incident occurred after
escaping from a facility, etc);
4. Within 5-years of being “off paper.”
Prior Felonies – How Many?
Why does this matter?
1 prior felony in which service was completed within 5-years,
and no other felonies = PFO 2nd Degree
1 prior felony in which service was completed within 5-years,
and at least one other prior felony = PFO 1st Degree
When 1 + 1 = 1
Concurrent or uninterrupted consecutive
sentences will count as ONE PRIOR
FELONY for the purposes of PFO.
KRS 532.080(4).
Note: All felonies must be final sentenced
before serving any time on any of the
felonies.
Rob is convicted of TBUT O/$10K (C-felony) and PFO 1st.
His priors are both non-violent Class-D felonies. The jury
recommends a sentence of 10 years. How long until he is
eligible for parole?
A. 10 years – 10-flat
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C. 85% P.E. = 8 ½ years.
D. DOC will calculate
good time, so it is
unclear.
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.
25% 25% 25% 25%
PFO 1st v. PFO 2nd
PFO 2:
Class D + PFO 2 = 5-10 years, 20% PE
Class C + PFO 2 = 10-20 years, 20% PE
Class B + PFO 2 = 20-50, life, (20% or 85% PE)
Class A + PFO 2 = 20-50, life (85% PE)
PFO 1:
Class D + PFO 1 = 10-20 years, 20% PE
Class C + PFO 1 = 10-20 years, 10-flat PE
Class B + PFO 1 = 20-50, life, 10-flat PE or 85%
Class A + PFO 1 = 20-50, life, 10-flat PE and 85%
Nature of the Prior Offense
Out-of-State Felonies - Length of Sentence?
Never assume that an out-of-state felony conviction will count
(or will not count) as a felony in Kentucky for PFO
purposes.
TEST: Was the sentence imposed more than 1 year? If so, then
the conviction will count as a felony for PFO purposes. Ware
v. Comm., 47 SW 3d 333 (2001)
Nature of the Prior Offense
Is it a Sex Related Offense?
WATCH OUT FOR
ENHANCED PENALTIES!!!
Lee is convicted of Sex Abuse, 1st degree, victim under 12.
He was previously convicted of Sex Abuse 1st, victim under
12. What penalty is he facing?
A. Class C felony = 5-10
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B. Class C felony with 1
prior = PFO 2nd, so 1020 years, with 10-flat.
C. He is a violent offender
= 5-10 years at 85% PE.
D. 20-50 years, life, or Life
Without Parole for 25.
. ..
25% 25% 25% 25%
KRS 532.080(6)(a)
If the offense for which he presently stands
convicted is a sex crime committed against a
minor, AND the client was previously convicted
of one (1) or more sex crimes committed against
a minor, the possible penalties are:
1. 20-50 years
2. Life
3. Life without Parole for 25 years
Nature of the Prior Offense
DANGER: Double Enhancement
 Separate priors that have merged for the purpose of PFO
 Felon in Possession of a Handgun
 Drug Offenses
 Failure to Register as a Sex Offender
Dale was convicted in 1 prior felony case, but convicted on
3 counts. He is now charged with Convicted Felon in
Possession of a Handgun. Is he PFO eligible?
A. No, he only has one
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prior felony. This is a
double enhancement.
B. No, you must have two
prior felonies for PFO.
C. Yes, PFO will apply, no
matter how many
counts.
D. Yes, one count for the
status, and one to
support the PFO 2nd.
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RULE: the same prior felony conviction cannot be used to create
the status (i.e. convicted felon) and the basis for the
enhancement (PFO).
THE FOLLOWING IS PERMITTED:
1. If a there are multiple current charges, the same prior felony
can be used to create the status, and then PFO enhance
accompanying non-status charge. See, O’Neil v. Comm., 114
SW.3d 860 (Ky. App. 2003) (citing, Dale v. Comm., 715
S.W.2d 227 (Ky. 1986)).
2. If there are multiple counts in the prior felony case, then one
count can be used to create the status, while the other felony
counts are used for PFO purposes.
Enhancing Accompanying Felonies
Prior Case: 08-CR-123
Count 1: Robbery 2nd Degree
Current Case: 14-CR-456
Count 1: CFPHG supported by 08-CR-123
Count 2: Burglary 2nd
Count 3: PFO 2nd  supported by 08-CR-123
PFO 2nd can enhance Ct 2, but NOT Ct 1 in 14-CR-456
Failure to Register as a Sex Offender
Failure to Register as a Sex Offender
Example: Same prior conviction cannot be used to create
the status (i.e. requirement to register) and the basis for
PFO. See, France v. Comm., 320 S.W. 3d 60 (Ky. 2010).
Watch out for double enhancement on any offense that is
based on a status.
Limits to PFO on Enhanced Offenses
KRS 532.080(10): the Persistent Felony Offender statute “shall
not apply to a person convicted of a felony offense if the penalty
for that offense was increased from a misdemeanor to a felony,
or from a lower felony classification to a higher felony
classification, because the conviction constitute a second or
subsequent violation of that offense.”
BUT … THERE ARE EXCEPTIONS …
PERMITTED USE OF PFO FOR
SUBSEQUENT OFFENSE CONVICTIONS
KRS 532.080(10)(b) allows for use of PFO for the following offenses:
 189A.010 - DUI
 189A.090 – DUI/SOL
 506.140 – Criminal Gang Recruitment
 508.032 – Assault 4 (DV)
 508.140 – Stalking, 1st Degree
 510.015 – 3rd misdemeanor sex offense under chapter 510
 OR any other felony offense if the penalty was not enhanced to a higher
level because the CW elected to prosecute the person as a first-time
offender of that offense
PFO NOT ALLOWED
 Trafficking – second or subsequent offense
VIOLENT OFFENDERS
Brad is convicted of Sexual Abuse, 1st Degree,
victim under 12. As such, he is a violent offender.
What is his parole eligibility?
A. 85% - because he is a
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violent offender.
B. 20% - because this is a
Class-C felony.
C. The Court can set it as
20% or 85%.
D. DOC will determine
based on behavior.
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KRS 439.3401
There are offenses that are considered to be “violent offenses” in
all classifications of felonies.
Not ALL violent offenders are subject to 85% P.E.
BUT no violent offender can serve out before completion of
85% of their sentence.
*** Your client cannot be “off paper” before 85% service, but
can make parole.
JAIL CREDIT AND V.O.’S
1.
“A violent offender shall not be awarded any credit on his
sentence authorized by KRS 197.045(1)(b)1.” KRS
439.3401(4)
- KRS 197.045(1)(b)1 = Good behavior (10 days/month)
1.
“In no event shall a violent offender be given credit on his
or her sentence if the credit reduces the term of
imprisonment to less than eighty-five (85%) of the
sentence.” KRS 439.3401(4).
- Example: meritorious or educational credit
Exception to the V.O. Statute
The Violent Offender Statutes DOES NOT apply to individuals
who have been determined by the Court to be victims of
Domestic Violence or abuse pursuant to KRS 533.060.
- The exception does not apply to Rape in the 1st Degree and
Sodomy in the 1st Degree.
KRS 533.060 will protect not only the victim of Domestic
Violence but also FAMILY MEMBERS of the victim of
Domestic Violence.
LITIGATING THE
SENTENCING PHASE OF
TRIAL
 After the Guilt/Innocence phase of a trial, there is a sentencing
phase of the trial.
 The Commonwealth can enter evidence of several aspects of your
client’s past including prior convictions, probation status, nature of
the offenses, impact of the crime on the victim, etc. KRS 532.055
PRIOR CONVICTIONS - ADMISSIBLE
 The general nature of the priors can be described, but not the




details of the prior conviction.
Cooper’s instructions or the KRS statute, preferably read by the
Judge. Webb.
Some forms of proof are both too detailed and insufficient:
indictments, citations, warrants, courtnet
Watch out for evidence of charges for which the defendant was
NOT convicted (charges which were amended or dismissed)
Evidence may contain objectionable hearsay
JUVENILE OFFENSES - ADMISSIBLE
Truth in Sentencing allows for the admission of evidence
related to juvenile offenses, if the conviction is for a crime which
would have been a felony if committed by an adult. KRS 532.055
(2)(a)7
VICTIM TESTIMONY
The prosecutor in the sentencing phase wants to have the
mother, sister, friend, and pastor of the dead person testify in
a Reckless Homicide case
Can they ALL Testify?
Unfortunately, the answer is yes KRS 421.500
What about us? What Can We Say?
 Remember that we have the right to put on evidence in mitigation
KRS 532.055(2)(b).




Investigate your client’s background.
Interview family members and friends.
Have an evaluation conducted (if appropriate).
Gather records: school, military, employment, medical, etc.
 Call witnesses in support of your client.
 Gather exhibits – photographs, documents, etc.
 Admit exhibits that tell your client’s story.
 Plan an opening and closing in advance
 Do not use a generic opening and closing – prepare for a conviction.
 Use any parole eligibility chart to your advantage.
 Fight having a DOC parole eligibility chart being admitted as evidence.
Remember, when you’re in a trial, and there is a possibility of your
client being found guilty of multiple felonies…
KRS 532.055(2) says: “The jury shall recommend whether the
sentences shall be served concurrently or consecutively.”
COLLATERAL
CONSEQUENCES
Collateral Consequences
The World After Padilla v. Kentucky
Padilla effectively holds that it is ineffective assistance of counsel not
to advise accurately about the deportation consequences of a
felony guilty plea
The holding in Padilla has been applied to other areas of misadvice
regarding collateral consequences.
Categories of Collateral Consequences
 Sex Offender Registration/Treatment
 Deportation
 Loss of License
 Court Ordered Treatment
 Firearm Possession Ban
 Loss of Public Benefits
 Loss of Child Custody
 Bar to Employment/Armed Services
How Do We Cope?
 Don’t Panic
 Holistic Representation
 Say “I don’t know”
 Talk to other Experts/attorneys, etc.
 Ask other DPA attorneys for help – especially if they have
attended additional training.
 Use your COLLATERAL CONSEQUENCES MANUAL.
FINAL SENTENCING
The jury recommends a 5 year sentence on Cold Carrie for
a Burglary 3rd when it was shown she was homeless and
freezing. Is there anything we can do?
.
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must be to serve.
B. Yes, the court can
modify the sanction
handed down by the
jury.
C. The judge can ask the
jury to impose
probation.
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A. No, the jury verdict
KRS 532.070 states that the Court can
modify the sentence handed down by the
jury.
NOTE: this statute only applies to jury
verdicts, not a guilty plea.
What Does the Judge Have to Consider?
KRS 533.010(2) REQUIRES THE JUDGE
TO CONSIDER:
1. Probation
2. Probation with an Alternative Sentence
3. Conditional Discharge
Restitution
The restitution amount must be decided at
the time of final sentencing. Rollins v.
Comm., 294 S.W.3d 463 (Ky. App. 2009).
If your judge tries to enter a “general
restitution order” – object!
PRESENTENCE INVESTIGATION
REPORT
(PSI)
Take an Active Role in Drafting the PSI
 Review the PSI prior to sentencing. RCr 11.02(two business days before sentencing)
 Look out for a “nature of the offense” section that involves facts of charges that were
amended or dismissed.
 If you disagree with the facts – ask P&P to change them.
 If P&P will not change them, ask the judge to change them and request an Order
directing P&P to make the changes, and provide a copy of the modified PSI to DOC.
 Why? This is what DOC will use for parole. It is also what SOTP will use for Sex
Offender Treatment and what admissions your client must make.
POSTINCARCERATION
SUPERVISION
 5 years for KRS 510 felonies, commercial sexual human
trafficking, incest, unlawful transaction w/ a minor 1st, use
and promotion of a minor in a sexual performance
 1 year for capital offenses, Class A felonies, prisoners with
maximum or close security classification and anyone
ineligible for parole
 KRS 532.043; 532.060; 532.400
Conditions of Postincarceration
Supervision
The Judge cannot impose conditions of postincarceration
supervision at the time of sentencing. Chames v. Comm.,
405 S.W.3d 519 (Ky. App. 2012).
The Department of Corrections is responsible for setting
the terms of postincarceration supervision.
Calculating Sentences
DOC “math” – when there are
less than 365 days in a year
What’s a “state year”?
7/21?
Where did that come from?
What’s a “state year”? It depends.
3 Kinds of Statutory Credit:
 Statutory Good Time, 10 days/month
 Meritorious Good Time, 7 days/month
 Educational Good Time, 90 days awarded upon completion
of GED or graduation/receipt of diploma
Credit comes off the end of the year
Take the example of statutory good time - 10 days per
month
After the first three months, the last month falls off:
123 4 5 6 7 8 9 10 11 12
After the next three months, another month falls off:
123 456 7 8 9 10 11 12
After four months of meritorious good time credit at 7
days/month, another month falls off.
1 2 3 4 5 6 7 8 9 10 11 12
Educational Credit
With educational/drug treatment credit another 90 days
can come off:
1 2 3 4 5 6 7 8 9 10 11 12
V.O.’s and S.O.’s
Violent offenders do not get good time
KRS 439.3401(4).
Note: The educational good time exception is gone.
Sexual offenders do not get good time credit until after
completion of the Sexual Offender Treatment Program
This is SUPER complicated
Read the statute … every time.
Refer to the Trail Law Notebook.
Ask for help.
Euva Blandford: [email protected]
Melanie Foote Hollingsworth: [email protected]