RENDERED: FEBRUARY 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1656-MR
AND
NO. 2019-CA-1665-MR
ZACHARY LAMAR TAYLOR APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
v. HONORABLE JOHN R. GRISE, JUDGE
ACTION NOS. 00-CR-00638 & 01-CR-00022-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, MCNEILL, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Zachary Lamar Taylor (“Appellant”) appeals from an
order of the Warren Circuit Court denying his motion to alter, amend, or vacate a
sentence pursuant to Kentucky Rules of Civil Procedure (“CR”) 60.02. Appellant
argues that the circuit court erred in failing to conduct a plea colloquy and in
subjecting him to a period of conditional discharge. He also maintains that the
Kentucky Department of Corrections violated the separation of powers doctrine1
by imposing a three-year period of conditional discharge. For the reasons
addressed below, we find no error and affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
On October 11, 2000, Appellant was indicted in Case No. 00-CR-
00638 on one count of rape in the first degree.2 On January 17, 2001, he was
indicted in Case No. 01-CR-00022-002 on charges of rape in the second degree,
rape in the third degree, and two counts of unlawful transaction with a minor in the
second degree.3 Appellant pled guilty to all charges in return for a recommended
sentence of 20 years.
On November 6, 2001, judgment was entered on the plea, and
Appellant was sentenced to 30 years in prison. The sentence was probated for five
years. Thereafter, Appellant’s probation was revoked, and he was ordered to serve
the 30-year sentence. Appellant then persuaded the circuit court to reduce the
1
KY. CONST. §§27-28.
2
Kentucky Revised Statutes (“KRS”) 510.040.
3
KRS 510.050, KRS 510.060, and KRS 530.065.
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sentence to 20 years in prison in accordance with the plea agreement. The 20-year
sentence was affirmed on appeal by a panel of this Court.4
After serving his sentence, Appellant was released from incarceration.
On September 7, 2018, he was charged with a new offense of trafficking in a
controlled substance in the first degree.5 On October 9, 2019, he entered a guilty
plea on the trafficking charge in Warren Circuit Court Case No. 18-CR-01090 and
apparently was sentenced to one year in prison to be served consecutively with any
other sentence.6
On March 21, 2019, Appellant, pro se, sent a letter to the Warren
Circuit Court asserting that he had been improperly subjected to a three-year
conditional discharge stemming from the 2001 criminal judgment. It appears from
the parties’ written arguments that the Kentucky Department of Corrections
imposed an additional term of imprisonment in the 2001 case because Appellant
violated his three-year conditional discharge when committing the 2019 offense.
Appellant received appointed counsel, who moved to alter or amend the 2001
sentence via CR 60.02. Appellant argued that the 2001 judgment was not subject
4
Taylor v. Commonwealth, No. 2007-CA-000805-MR, 2008 WL 275116 (Ky. App. Feb. 1,
2008).
5
KRS 218A.1412.
6
The record in that proceeding is not before us.
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to conditional discharge or, in the alternative, that the statutory imposition of
conditional discharge at the time of the 2000 and 2001 offenses was not applicable.
The matter proceeded in the Warren Circuit Court, resulting in an
October 7, 2019 order denying the CR 60.02 motion. The court determined in
relevant part that whether applying the “old” or “new” versions of KRS 532.0437
to the 2000 and 2001 offenses, conditional discharge was applicable as a matter of
law. The court went on to find that the Kentucky Department of Corrections did
not violate the separation of powers doctrine by revoking the period of conditional
discharge, because such revocation was required by the version of KRS 532.043 in
effect when Appellant committed the first-degree rape offense. This appeal
followed.
ARGUMENTS AND ANALYSIS
Appellant, pro se, argues that the Warren Circuit Court abused its
discretion in denying his motion for CR 60.02 relief. He argues that the circuit
court improperly failed to conclude that the 2001 trial court did not conduct a plea
colloquy when accepting his guilty plea and that this constitutes reversible error.
Appellant also asserts that the circuit court wrongly found him subject to a three-
year conditional discharge for sexual offenses because the 2001 judgment made no
mention of a conditional discharge. Lastly, Appellant argues that the Kentucky
7
The “new” version took effect on July 14, 2000.
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Department of Corrections violated the separation of powers doctrine in imposing
the three-year period of conditional discharge. In sum, Appellant seeks an Opinion
reversing and remanding the Warren Circuit Court’s order denying his motion for
CR 60.02 relief.
The standard of review as to a trial court’s denial of a CR 60.02
motion is whether the court abused its discretion. Stoker v. Commonwealth, 289
S.W.3d 592, 596 (Ky. App. 2009). “The test for abuse of discretion is whether the
trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
On the question of whether Appellant was improperly denied a plea
colloquy at the time of the 2001 judgment and sentence, we find no error. This
argument should have been raised, if at all, via Kentucky Rules of Criminal
Procedure (RCr) 11.42. Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky.
1983). Arguendo, even if this matter were properly before us, the record amply
demonstrates that the circuit court conducted a plea colloquy to ensure that
Appellant’s plea was voluntarily, knowingly, and intelligently made. We find no
error.
The next question for our consideration is whether the Warren Circuit
Court erred in concluding that the version of KRS 532.043 in effect at the time of
Appellant’s 2000 and/or 2001 offenses required the application of a period of
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conditional discharge. This question is disposed of by Jones v. Commonwealth,
200 S.W.3d 495, 496-97 (Ky. App. 2006), in which a panel of this Court addressed
the question of whether a three-year period of conditional discharge was required
for a 2001 sex offense. The Court stated:
While a former version of KRS 532.043 provided
that “any person convicted of, pleading guilty to, or
entering an Alford plea to a felony [sex] offense . . . shall
be sentenced to a period of conditional discharge[,]” the
amended version (pursuant to which Jones was
sentenced) provided that the felon “shall be subject to a
period of conditional discharge[.]” . . . Under the
amended version of the statute, a three-year period of
conditional discharge was not imposed by the trial court
as a part of Jones’s sentence. Instead, upon her
conviction as a sex offender sentenced in 2001, Jones
automatically became subject to the period of conditional
discharge as a matter of law. Therefore, the omission of
any mention of the statute or of its requirements in the
court’s written judgment is not erroneous. Jones is
bound by its provisions.
Id. (emphasis in original).
In the matter before us, Appellant, like Jones, committed a sex offense
and was subject to a judgment and sentence in 2001. By operation of KRS
532.043, and because he committed a sex offense, Appellant was subject to a
three-year conditional discharge as a matter of law. This is true even though the
judgment did not recite the conditional discharge as part of the sentence. Jones,
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200 S.W.3d at 496-97. The Warren Circuit Court properly so concluded, and we
find no error.
Lastly, Appellant argues that the Kentucky Department of Corrections
violated the separation of powers doctrine by imposing the three-year period of
conditional discharge, which usurped the authority of the judiciary. The focus of
his argument on this issue is that it is unlawful and violative of Kentucky
Constitution sections 27 and 28 for the Kentucky Department of Corrections to
impose a conditional discharge on Appellant when the judgment and sentence did
not impose the conditional discharge.
The Kentucky Supreme Court has found the imposition of conditional
discharge by the Kentucky Department of Corrections not to be violative of the
separation of powers doctrine because the three branches of government properly
work in concert to effect criminal justice. See Jones v. Commonwealth, 319
S.W.3d 295, 299-300 (Ky. 2010). “Once a prisoner is turned over to the
Department of Corrections for execution of the sentence, the power to determine
the period of incarceration passes to the executive branch.” Id. at 300 (citation
omitted). The circuit court properly so concluded, and we find no error.
CONCLUSION
Appellant’s argument as to the plea colloquy should have been
brought, if at all, by way of RCr 11.42. Even if that argument were properly
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before us, we would find no error because the record demonstrates that he received
a full plea colloquy at the time of the judgment and sentence. Further, KRS
532.043 mandated a three-year period of conditional discharge by operation of law,
and the imposition of the conditional discharge did not violate the separation of
powers doctrine. As noted above, this is true even though the judgment and
sentence did not expressly order conditional discharge, as conditional discharge
was a legislative rather than judicial prerogative. For these reasons, we affirm the
order of the Warren Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Zachary Lamar Taylor, pro se Daniel Cameron
LaGrange, Kentucky Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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Zachary Taylor v. Commonwealth of Kentucky
Combined Opinion