Jackson v. Commonwealth

*835LEIBSON, Justice, concurring.

For both Jackson and Riggsbee, the trial court ordered the sentences imposed for each of the counts of theft by unlawful taking and receiving stolen property served consecutively to each other and consecutively to the life sentences imposed for the burglaries. As a result, Jackson was sentenced to a total of life plus two hundred (200) years, and Riggsbee was sentenced to a total of life plus five hundred thirty-five (535) years.

We have reversed Jackson’s convictions for theft and receiving stolen property as to the radio scanner and we have vacated the remaining convictions of Jackson and all convictions of Riggsbee for receiving stolen property. But this leaves the remaining convictions of Jackson and Riggs-bee for thefts to be served consecutively to the life sentences imposed for the burglaries. The majority opinion fails to address appellants’ claims that running these sentences consecutively to the life sentences violates KRS 532.110(l)(c). In my view these claims of error are well founded.

KRS 532.110(l)(c) provides:

“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.”

Appellants have been convicted for Class B felonies. The highest class of crime for which appellants could be sentenced was a Class A felony. Under the provisions of the persistent felony statute the maximum term of imprisonment if a person stands convicted for a Class A felony is “no more than life imprisonment.” KRS 532.-080(6)(a). Consequently, the aggregate permissible sentencing was limited to one life sentence for each appellant. As stated in the 1974 Commentary, KRS 532.110(l)(c) “places an upper limit on the maximum term of imprisonment that can be imposed through consecutive indeterminate terms.. .that is equivalent to the maximum term that can be imposed on a persistent felony offender under KRS 532.080.”

In Shannon v. Commonwealth, Ky., 562 S.W.2d 301, 303 (1978), applying this statute where the accused had been sentenced to consecutive life terms on two murder charges, we held that “the sentence of life imprisonment for each of the two murders, with provisions that the sentences run consecutively, is not authorized.”

The trial court decided that the provisions of KRS 532.110(l)(c) were overridden by KRS 533.060(2), which provides that the sentence for a new felony conviction that occurs while a defendant is on parole is to run consecutively “with any other sentence.” KRS 533.060(2) is part of KRS Chapter 533, “Probation and Conditional Discharge.” It expresses the intention of the legislature that sentences for new offenses committed while on parole shall not run concurrently with past offenses for which the defendant is on parole. The only reasonable interpretation is that the phrase “any other sentence” in KRS 533.060(2) means the unserved portion of the sentence for the felony for which probation or parole should be revoked.

It is inherently unreasonable to impose a sentence of imprisonment beyond life imprisonment. The only purpose for such a sentence would be the impact, if any, such a sentence might later have on the parole board in carrying out its function. A parole is an exercise of executive clemency. The present statutory scheme does not contemplate judicial direction or control of the parole function and we should not attempt to do indirectly what we are not authorized to do directly. Many of us hold the view that the parole system should be changed. But we must leave it to the legislature to make that decision.

I would direct the trial court to resen-tence Jackson and Riggsbee on the theft charges, ordering the sentences imposed on such charges to run concurrently with the sentences of life imprisonment previously imposed in each case for the burglaries.

AKER, J., joins in this concurring opinion.