CRIMINAL: Persistent felony offender sentencing; concurrent/consecutive sentences and enhancement: BATES V. COM (COA 10/17/08)

CA affirmed Circuit Court's denial of pro se inmate's CR 60.02 motion to vacate. Previously, Bates was convicted on three felony indictments for trafficking in a controlled substance, i.e., case numbers 93-CR-229, 93-CR-300, and 93-CR-301. He was sentenced to concurrent terms of five years of imprisonment for each of those convictions. Additionally, Bates was convicted of attempted murder and first-degree wanton endangerment in case number 94-CR-77. He was sentenced to serve a total of sixteen years of imprisonment for those two convictions. In the present case, Bates was charged with possession of a handgun by a convicted felon, tampering with physical evidence, and of being a second-degree persistent felony offender (PFO-2nd). Bates pleaded guilty to all charges, and he received PFO-enhanced penalties of: (1) ten years of imprisonment for the possession of a handgun by a convicted felon conviction; and (2) five years of imprisonment for the tampering with physical evidence conviction.

Bates thereafter filed a CR 60.02 motion in the circuit court, alleging that pursuant to KRS 532.080(4) his concurrent sentences for his convictions in case numbers 93-CR-229, 93-CR-300, and 93-CR-301, and his consecutive sentence for his conviction in case number 94-CR-77 merge and count as only one prior felony conviction. Bates reasoned that because these combined convictions constituted only one prior felony conviction and because that conviction was used to support his present conviction for possession of a handgun by a convicted felon, it could not also be used to support his PFO conviction and sentence enhancements. Thus, Bates asserted that his PFO-2nd conviction should be dismissed and his sentences in the present case for possession of a handgun by a convicted felon and tampering with physical evidence should be corrected so that they are no longer enhanced by the PFO-2nd conviction.

Bates relies upon another section of KRS 532.080 in support of his present claim that his prior convictions count only as one prior felony conviction. Specifically, Bates cites KRS 532.080(4) in support of this allegation, which provides as follows:

For the purpose of determining whether a person has two (2) or more previous felony convictions, two (2) or more convictions of crime for which that person served concurrent or uninterrupted consecutive terms of imprisonment shall be deemed to be only one (1) conviction, unless one (1) of the convictions was for an offense committed while that person was imprisoned.

Bates's argument is misplaced, as KRS 532.080(4) specifically applies to instances where it is necessary to determine whether a person has had "two (2) or more previous felony convictions," as is necessary to determine a defendant's guilt on the charge of PFO-1st. Compare KRS 532.080(4), with KRS 532.080(3). Yet, Bates was not charged with PFO-1st; rather, he was charged with PFO-2nd, which requires him to have only been convicted of one prior felony. See KRS 532.080(2). Therefore, KRS 532.080(4) is inapplicable to Bates's case. Furthermore, any of Bates's prior felony convictions in case numbers 93-CR-229, 93-CR-300, 93-CR-301, or 94-CR-77 were permitted to be used to support his present KRS 527.040 conviction for possession of a handgun by a convicted felon, and any of his remaining prior felony convictions could have then been used to support his present PFO-2nd conviction and sentence enhancements. Thus, it was not improper for Bates to be convicted of both possession of a handgun by a convicted felon, as well as PFO-2nd.