RENDERED: NOVEMBER 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1658-MR
DEANDRE MCCAIN APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 11-CR-000135
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: GOODWINE, MAZE, AND McNEILL, JUDGES.
McNEILL, JUDGE: On February 9, 2011, Deandre McCain (hereafter
“Appellant”) pleaded guilty to second-degree burglary in Jefferson Circuit Court
Case No. 11-CR-000135. In accordance with the plea agreement, the trial court
sentenced Appellant to seven years’ incarceration, probated for five years. One of
the conditions of probation was that he pay restitution totalling $525.00. On April
28, 2011, the Commonwealth filed a motion to revoke Appellant’s probation after
he was charged with trafficking in a controlled substance and carrying a concealed
deadly weapon. After serving approximately nine months in jail, Appellant was
granted shock probation, which was unopposed by the Commonwealth pursuant to
an agreement resulting from the trafficking case. Over the next several years,
Appellant committed a host of additional crimes for which the Commonwealth
unsuccessfully sought revocation of Appellant’s probation. In 2019, however,
Appellant entered an Alford1 plea to facilitating homicide in Case No. 2017-CR-
001122. As a result, the Commonwealth filed another motion to revoke
Appellant’s probation, which was granted. Appellant was sentenced to a total of
eighteen years’ imprisonment. Appellant’s sole argument on appeal is that because
his initial five-year probationary period in Case No. 11-CR-000135 was set to
expire in 2017, the revocation of his probation that occurred in 2019 was erroneous
and invalid. For the following reasons, we disagree.
I. STANDARD OF REVIEW
We review probation revocation determinations for an abuse of
discretion. Blankenship v. Commonwealth, 494 S.W.3d 506, 508 (Ky. App. 2015).
An abuse of discretion occurs when the trial court’s decision is “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
1
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
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II. ANALYSIS
Appellant contends that his probationary period was only tolled
during the nine months he served in jail before being granted shock probation.
However, the Commonwealth asserts that Appellant’s probationary period was
additionally tolled for approximately 45 months resulting from the multiple
offenses committed while he was on probation. Appellant replied that those
additional time periods did not toll his probationary period because he was not
incarcerated as a result for those violations. According to Appellant, after the
initial nine-month period of incarceration after which he received shock probation,
the trial court never actually revoked or reinstated his probation, but rather
“maintained” it, at least until he was finally sentenced to eighteen years’
incarceration.2
Relevant to our decision is KRS3 533.040(2):
If a court, as authorized by law, determines that a
defendant violated the conditions of his probation or
conditional discharge but reinstates probation or
conditional discharge, the period between the date of the
violation and the date of restoration of probation or
conditional discharge shall not be computed as a part of
the period of probation or conditional discharge.
2
The record indicates that Appellant actually served twenty-nine months incarceration prior to
his ultimate sentencing–nine months for his initial violation of probation resulting from Case No.
2011-CR-000135, and an additional one year and eight months resulting from Case No. 2017-
CR-001122, for which he received credit for time served.
3
Kentucky Revised Statutes.
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Contrary to Appellant’s argument, “[b]ecause the statute uses the term shall, the
tolling provisions of the subsection must therefore be construed to occur by
operation of law, without any particular additional actions by the circuit court in
order to implement the provisions.” Commonwealth v. Dulin, 427 S.W.3d 170,
174 (Ky. 2014). “[W]e conclude that a probationary period will normally begin on
the date that a defendant appears for sentencing and the trial court pronounces that
the defendant is placed on probation.” Id. at 172 n.3.4 Therefore, the trial court
was not required to take any specific action for KRS 533.040(2) to toll Appellant’s
probationary period resulting from Case No. 11-CR-000135 or any other offense.
Because the additional tolling periods cited by the Commonwealth would extend
the probationary period well beyond 2019, the trial court’s ultimate revocation of
Appellant’s probation on August 22, 2019 was proper. There certainly is no
indication that the trial court abused its discretion.
4
See also 1974 Kentucky Crime Commission/LRC Commentary on KRS 533.040(2):
Subsection (2) seeks to deal with the matter of calculating sentences of probation
or conditional discharge when there has been a violation of one of the conditions
imposed upon the defendant. The provision contemplates that there will exist
situations in which such a violation will not warrant revocation of the
sentence with a subsequent incarceration. In such a situation, the violation of
conditions tolls the running of the term until such time as the sentence of
probation or conditional discharge is restored by a court.
(Emphasis added.)
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III. CONCLUSION
For the foregoing reasons, we hereby affirm the judgment
of the Jefferson Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Shannon Dupree Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Kristin L. Condor
Assistant Attorney General
Frankfort, Kentucky
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