Request By:
Hon. David L. Armstrong
Commonwealth's Attorney
30th Judicial District
Jefferson Hall of Justice
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your recent letter in which you request an opinion concerning the minimum prison sentence a defendant would have to serve before he would be eligible for parole after receiving consecutive sentences of 10 years and 20 years as a persistent felony offender in the first degree.
Your question appears to be covered by KRS 197.045(2) and KRS 532.110(1)(c). We construe your letter to mean that the defendant's sentencings as a persistent felony offender were based upon substantive convictions for Class C or D felonies. Thus under KRS 532.110(1)(c) the maximum consecutively served sentences the deefendant could receive after twice being found a persistent felony offender in the first degree is 20 years rather than the 30 years he purportedly received in court. The applicable statutes state as follows:
KRS 532.110(1)(c) "The 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."
KRS 532.080(6)(b) "If the offense for which he presently stands convicted is a Class C or Class D felony, a persistent felony offender in the first degree shall be sentenced to an indeterminate term of imprisonment, the maximum of which shall not be less than ten (10) years nor more than twenty (20) years."
KRS 197.045(2) "When two (2) or more consecutive sentences are to be served, the several sentences shall be merged and served in the aggregate for the purposes of the good time credit computation or in computing dates of expiration of sentence. "
According to KRS 197.045(2) the two consecutive sentences as a persistent felony offender merged for the purpose of computing dates of expiration of sentence. We apparently are bound by the decision in
Berning v. Commonwealth, Ky., 550 S.W.2d 561 (1977) which states this statute also applies to parole eligibility. As a consequence, the defendant would be eligible for parole after serving the 10 years prescribed in KRS 532.080(7). That statute states:
"A person who is found to be a persistent felony offender in the first degree shall not be eligible for probation, shock probation, or conditional discharge, nor for parole until having served a minimum term of incarceration of not less than ten (10) years."
Were we to reach a different result, then a defendant who had been sentenced to serve concurrently served sentences as a PFO of 10 and 20 years would be eligible for parole in 10 years but the same defendant who received two consecutively served sentences of 10 years would not be eligible for parole until after serving 20 years, although he had received the same total sentence. Such a result does not appear to be within the intent of the legislature.