RENDERED: NOVEMBER 3, 2023; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0436-MR
MESSIAH BURTON APPELLANT
APPEAL FROM FULTON CIRCUIT COURT
v. HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 20-CR-00065
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING AND REMANDING
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BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
JONES, JUDGE: Messiah Burton, a youthful offender, appeals from the judgment
and sentence entered by the Fulton Circuit Court on October 29, 2021. The trial
court entered this second judgment and sentence after Burton had been granted
parole following the trial court’s first judgment and sentence on March 17, 2021.
After a thorough review of the record and the law, we vacate the judgment entered
on October 29, 2021, and remand with instructions to the trial court to allow
Burton to serve his parole.
I. BACKGROUND
On August 3, 2020, Burton was charged via a juvenile petition with
first-degree robbery1 and first-degree wanton endangerment.2 The complaint
alleged that Burton, then seventeen years old, placed a gun to Antwian
Porterfield’s head and demanded money for himself and his associate, Michael
Downing. Downing searched Porterfield’s pockets while Burton continued to hold
the gun to Porterfield’s head. After taking $275.00 from Porterfield, Burton and
Downing fled in a white SUV. Burton was arrested shortly thereafter.
After Burton’s arrest, the Commonwealth, through the Fulton County
Attorney, moved the district court to proceed against Burton as an alleged youthful
offender pursuant to KRS 635.020. Burton qualified as an alleged youthful
offender on two separate grounds. KRS 635.020(2) requires the court, on motion
from the Commonwealth, to proceed against a child as a youthful offender if the
child is fourteen years old or older at the time of the offense and has been charged
with a capital offense, a Class A felony, or a Class B felony. Similarly, KRS
635.020(4) triggers the possibility of youthful offender status if the child is at least
fourteen years old at the time of the offense and has used a firearm in the
commission of a felony.
1
Kentucky Revised Statute (KRS) 515.020, a Class B felony.
2
KRS 508.060, a Class D felony.
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Following a hearing on the motion comporting with KRS 640.010, the
district court found there was probable cause to believe Burton committed a Class
B felony when he participated in an armed robbery during a home invasion. The
district court thereafter transferred Burton to the circuit court to be tried as a
youthful offender. One week later, the Fulton Grand Jury indicted Burton for first-
degree robbery.
Following a short period of discovery, Burton signed a negotiated
guilty plea in which the Commonwealth agreed to amend the charge to a single
count of criminal facilitation of first-degree robbery, a Class D felony.3 Burton
agreed to plead guilty to that offense and to serve the four-year term recommended
by the Commonwealth. The trial court accepted this guilty plea in open court on
January 28, 2021, and the written record shows these terms were agreed upon and
signed by Burton, the Commonwealth, and the circuit judge on February 8, 2021.
(Record (R.) at 65-68.) The trial court ordered the Department of Juvenile Justice
(DJJ) to prepare Burton’s presentence investigation report (PSI) for the next
hearing date, which was March 11th.
Burton’s hearing before the trial court on March 11, 2021, involved
more than the PSI. At that point, Burton had been in custody 222 days, and the
parties disagreed about where Burton should be held until June 8th, which was
3
KRS 506.080.
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Burton’s eighteenth birthday. Burton argued for probation. The Commonwealth
disagreed and argued that Burton should stay with the DJJ, stating that Burton
would live in his mother’s home in Tennessee if he were probated. The trial court
ultimately stated that it wished “to get to the bottom of” the victim’s story and that
it wanted more facts. The trial court then ordered Burton to be confined to the DJJ
until after his eighteenth birthday. The DJJ stated it could hold Burton until the
earliest court date after his eighteenth birthday, which was June 10th.
Following this hearing, on March 17, 2021, the trial court entered a
document titled “Judgment & Sentence on Plea of Guilty – Youthful Offender.”
(R. at 71.) The judgment discussed the amended charge of facilitation of first-
degree robbery and how the defendant agreed with the contents of the PSI prepared
by the DJJ. The judgment also discussed how the defendant was to be returned to
DJJ for a treatment program not to exceed five months past the defendant’s
eighteenth birthday, at which time the defendant would be “returned to the
sentencing court for determination as to whether or not the youthful offender shall
be placed on probation or conditional discharge, or whether the youthful offender
should be incarcerated in an institution operated by the Department of
Corrections.” (R. at 72.) Of particular note, the judgment stated the following:
IT IS HEREBY THE ORDER OF THIS COURT that
insufficient cause having been shown why judgment
should not be pronounced, IT IS ADJUDGED BY THE
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COURT that the defendant is GUILTY of the following
charges:
KRS 506.080 Criminal Facilitation to Robbery, 1st
Degree, CDF[4] – 4 Years
(R. at 72.) Finally, the judgment ordered that
further sentencing pursuant to KRS 640.030 and other
applicable statutes shall be had for the defendant after
completion of treatment with [DJJ] and him being
returned to this Court for purposes of sentencing on a
date agreed to, either on June 10, 2021 or such other date
as [DJJ] may request . . . .
(R. at 73.) The “further sentencing” contemplated in the judgment did not take
place on June 10th, however, as the trial court entered an agreed order continuing
the matter for five months so Burton could continue his education and treatment
with DJJ. This order explicitly directed that Burton shall be returned to the trial
court “for a hearing pursuant to KRS 640.030” on October 28, 2021. (R. at 84.)
On June 15, 2021, the Kentucky Parole Board voted to recommend
parole for Burton. (R. at 85.) Because he was released on parole and there was no
longer a need for the October 28, 2021 hearing, Burton moved to have the hearing
removed from the docket. On October 26, 2021, the trial court responded by
entering a nunc pro tunc order, dated June 7, 2021, which required Burton to
remain with DJJ for five months before being returned to the trial court on October
28, 2021, for a hearing pursuant to KRS 640.030. (R. at 89.) The trial court issued
4
Although not explicitly discussed in the record, we infer that “CDF” means Class D Felony.
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a second order on that date which questioned the authority of the Kentucky Parole
Board to grant parole in this case. The order then directed DJJ, defense counsel,
and any “parole officer” (quotation marks original to the order) to serve a copy of
the summons to Burton, with the goal of ensuring he would be present in court on
October 28th. If Burton failed to appear, the trial court indicated it would issue a
warrant for his arrest. (R. at 90-91.)
During the hearing on October 28, 2021, before Burton’s arrival in
court, the trial court expressed its belief that Burton had not yet been sentenced,
and the Kentucky Parole Board had thereby issued an “illegal parole.” An
unnamed person in the courtroom stated, “we see that a lot with [youthful
offenders].” The trial court responded, “that’s the first time I’ve seen it, and it’ll
be the last time I see it.” When Burton arrived, the trial court asked, “How is he
getting paroled when he was never sentenced?” Defense counsel asserted that
Burton had been sentenced, which the trial court denied, saying there was no
document in the file saying Burton was sentenced to four years. Defense counsel
then stated that Probation and Parole had determined Burton had served twenty
percent of his sentence and paroled him. The trial court reiterated that Burton was
adjudged guilty, but he had yet to be sentenced. The trial court ultimately issued
another judgment on October 29, 2021, sentencing Burton to four-years’
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imprisonment which was dated nunc pro tunc to June 10th, five days before Burton
was paroled. This appeal followed.
II. STANDARD OF REVIEW
The primary issue in this case is whether the trial court was correct in
its interpretation of the juvenile sentencing statutes. Statutory construction “is an
issue of law which we address de novo.” Shawnee Telecom Resources, Inc. v.
Brown, 354 S.W.3d 542, 551 (Ky. 2011).
III. ANALYSIS
For his sole argument on appeal, Burton contends the trial court erred
when it entered a second judgment on his plea of guilty. He argues the trial court
had already sentenced him on March 17, 2021, and it had no authority to sentence
him again after he was paroled on June 15, 2021. We agree. From the evidence in
the record, it appears that the trial court arrived at two incorrect conclusions. The
first was that the judgment and sentence the trial court issued on March 17th was
not a final judgment and sentence, and instead the age-eighteen hearing would
provide the basis for a final judgment and sentence. The second incorrect
conclusion, related to the first, was that the Kentucky Parole Board did not have
the authority to parole Burton before his age-eighteen hearing.
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The statute governing the sentencing of youthful offenders, referenced
multiple times by the trial court, is KRS 640.030. The pertinent provisions of this
statute read as follows:
[A]ny sentence imposed upon the youthful offender shall
be served in a facility or program operated or contracted
by the Department of Juvenile Justice until the expiration
of the sentence, the youthful offender is paroled, the
youthful offender is probated, or the youthful offender
reaches the age of eighteen (18), whichever first occurs.
The Department of Juvenile Justice shall take custody of
a youthful offender, remanded into its custody, within
sixty (60) days following sentencing. If an individual
sentenced as a youthful offender attains the age of
eighteen (18) prior to the expiration of his sentence, and
has not been probated or released on parole, that
individual shall be returned to the sentencing court. At
that time, the sentencing court shall make one (1) of the
following determinations:
(a) Whether the youthful offender shall be placed
on probation or conditional discharge;
(b) Whether the youthful offender shall be returned
to the Department of Juvenile Justice to complete a
treatment program, which treatment program shall
not exceed the youthful offender’s attainment of
the age of eighteen (18) years and five (5) months.
At the conclusion of the treatment program, the
individual shall be returned to the sentencing court
for a determination under paragraph (a) or (c) of
this subsection; or
(c) Whether the youthful offender shall be
incarcerated in an institution operated by the
Department of Corrections[.]
KRS 640.030(2).
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Two principles consequential to this appeal may be gleaned from the
first part of the quoted portion of KRS 640.030(2). The first is that “any sentence
imposed upon the youthful offender” results in transfer to a facility operated by
DJJ until the youthful offender is eighteen. In the matter currently before us, if the
trial court did not sentence Burton on March 17th, then it is unclear how the trial
court could exercise the authority to send him to DJJ pursuant to this statute.
Furthermore, despite the trial court’s protestations to the contrary,5 the March 17th
document in the record bears all the marks of a bona fide judgment and sentence in
a youthful offender case.
First, the March 17th document labels itself as a judgment and
sentence – a “Judgment & Sentence on Plea of Guilty.” It discusses Burton’s
guilty plea and acknowledges that Burton did not dispute the PSI. The document
finds Burton guilty of criminal facilitation of robbery and pronounces a four-year
sentence. “A final or appealable judgment is a final order adjudicating all the
rights of all the parties in an action or proceeding, or a judgment made final under
Rule 54.02.” Commonwealth v. Carneal, 274 S.W.3d 420, 427 (Ky. 2008)
5
We are obligated to point out here that the writings of the trial court carry far more weight than
any ruminations the trial court may voice in open court. “Circuit courts speak ‘only through
written orders entered upon the official record.’” Oakley v. Oakley, 391 S.W.3d 377, 378 (Ky.
App. 2012) (quoting Kindred Nursing Centers Ltd. P’ship v. Sloan, 329 S.W.3d 347, 349 (Ky.
App. 2010)).
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(quoting CR6 54.01). “Final judgment in a criminal case means sentence. The
sentence is the judgment.” Id. (quoting Burton v. Stewart, 549 U.S. 147, 156, 127
S. Ct. 793, 798, 166 L. Ed. 2d 628 (2007) (quoting Berman v. United States, 302
U.S. 211, 212, 58 S. Ct. 164, 166, 82 L. Ed. 204 (1937))). The March 17th
judgment adjudicates “all issues relating to [Burton’s] guilt and his sentence[.]”
Clark v. Commonwealth, 476 S.W.3d 895, 899 (Ky. App. 2015). Finally, the
March 17th document contemplates Burton’s return to the trial court for further
sentencing after his eighteenth birthday pursuant to KRS 640.030. The trial court
apparently believed that this future age-eighteen hearing would be Burton’s final
sentencing, but this belief is inconsistent with our precedent.
We are unconvinced that the statutorily mandated 18-
year-old hearing is final sentencing. . . . The 18-year-old
hearing is simply a “second look” at the manner in which
the youthful offender is serving his sentence and provides
the trial court the opportunity to consider alternative
methods of fulfilling the sentence, other than simply
transferring the youthful offender to adult corrections.
Carneal, 274 S.W.3d at 427-28. For these reasons, the trial court erred when it
determined that the March 17th document did not comprise a valid final judgment
and sentence.
The second significant principle in KRS 640.030(2) is that a youthful
offender is returned to the trial court for a hearing at age eighteen – unless the
6
Kentucky Rule of Civil Procedure.
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youthful offender has been “probated or released on parole.” The trial court
expressed its disbelief that parole could occur prior to the age-eighteen hearing,
stating “that’s the first time I’ve seen it,” yet that is exactly what is contemplated in
the statute as authorized by the General Assembly. The Kentucky Supreme Court
has confirmed that this is the correct interpretation of the statute. “KRS 640.030(2)
indicates that youthful offenders may be paroled prior to their 18-year-old
hearing.” Edwards v. Harrod, 391 S.W.3d 755, 762 (Ky. 2013).
Compounding its earlier errors, the trial court then erroneously
concluded Burton was on an “illegal parole.” We are somewhat disturbed that the
trial court’s response to a purportedly “illegal parole” was effectively to ignore the
order of the Kentucky Parole Board and to bring Burton back under its authority
using a series of nunc pro tunc orders. For the trial court to unilaterally decide to
override the order granting parole infringes on the strong separation of powers
inherent in Sections 27 and 28 of the Kentucky Constitution; see, e.g., Prater v.
Commonwealth, 82 S.W.3d 898, 901-02 (Ky. 2002) (“[T]he power to grant parole
is a purely executive function.”). If there was an issue with the order granting
parole, the Commonwealth could have challenged this decision itself in a
declaratory judgment action; see Commonwealth ex rel. Conway v. Thompson, 300
S.W.3d 152 (Ky. 2009). Furthermore, the nunc pro tunc orders issued here were
highly improper, as they attempted to inject court actions which never actually
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occurred into the record. “[T]he court’s power to make such entries is restricted to
placing to record evidence of judicial action which has been actually taken. It may
be used to make the record speak the truth, but not to make it speak what it did not
speak but ought to have spoken.” Webster County Bd. of Educ. v. Franklin, 392
S.W.3d 431, 437 (Ky. App. 2013) (internal quotation marks and citation omitted).
IV. CONCLUSION
For the foregoing reasons, we vacate the trial court’s judgment and
sentence entered on October 29, 2021. Because the Kentucky Parole Board’s order
dated June 15, 2021, validly granted parole to Burton, we remand with instructions
to the trial court to enter any necessary orders which may be required to return
Burton to Probation and Parole’s supervision.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Alana S. Meyer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Matthew F. Kuhn
Solicitor General
Rachel A. Wright
Assistant Solicitor General
Frankfort, Kentucky
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