RENDERED: OCTOBER 21, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0100-MR
TIMOTHY DON CHAMBERS APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT
v. HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 17-CR-00248
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Timothy Don Chambers appeals a December 23, 2020 order
of the Graves Circuit Court revoking his probation. Upon review, we affirm.
The relevant background of this matter is as follows. On January 14,
2019, consistent with his plea of guilty, Chambers was convicted in Graves Circuit
Court in the underlying matter (17-CR-00248) of possession of a controlled
substance in the first degree (methamphetamine), a Class D felony;1 and possession
of drug paraphernalia, a Class A misdemeanor.2 He was sentenced to a concurrent
term of two years’ imprisonment, probated for a period of five years. Thereafter,
Chambers was not only on probation due to his conviction in 17-CR-00248; he was
also on probation regarding a sentence he had previously received as the result of a
federal criminal proceeding. The appellate record contains no information
regarding the nature of Chambers’ federal conviction, apart from indicating that it
was entered in the District Court for the Western District of Kentucky, Paducah
Division, in a proceeding identified as United States v. Timothy Chambers, No.
5:11-CR-00027-TBR.
On February 8, 2019, while on probation, Chambers was arrested
again and charged with new felony and misdemeanor offenses for which he was
later indicted in Graves Circuit Court in a separate proceeding (19-CR-00064). In
August 2019, he then absconded. On August 16, 2019, due to Chambers
absconding, the Commonwealth filed a probation violation report and requested
the revocation of his probation. The circuit court issued a bench warrant for his
arrest. Chambers was served with the warrant on September 16, 2019.
1
Kentucky Revised Statute (KRS) 218A.1415.
2
KRS 218A.500.
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However, when Chambers was served with the warrant, he was
already in federal custody. As indicated in a report of Chambers’ admission to the
McCracken County Jail, the United States Marshals Service had arrested Chambers
on September 13, 2019, in relation to 11-CR-00027-001; the report does not
specify why the marshals arrested Chambers, but the parties agree it was for
Chambers’ violation of his federal probation – due either to his absconding or the
new charges he had accrued in 19-CR-00064. A note attached to the executed
bench warrant also provided, “Federal inmate cannot go to local courts currently.”
Chambers’ federal probation was revoked shortly thereafter, and Chambers
remained in federal custody for the next eleven months or so to serve his remaining
federal sentence of imprisonment.
Shortly before October 2020, Chambers completed his federal
sentence and was released from custody. Shortly thereafter, revocation
proceedings moved forward regarding Chambers’ probation in 17-CR-00248.
On December 21, 2020, consistent with his plea of guilty in 19-CR-
00064, Chambers was convicted of possession of a controlled substance in the first
degree (methamphetamine), and tampering with physical evidence, both of which
were Class D felonies.3 He was sentenced to a concurrent term of one year of
imprisonment for those offenses.
3
KRS 524.100.
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On December 23, 2020, the circuit court in 17-CR-00248 revoked
Chambers’ probation, and for two reasons: (1) Chambers had absconded in August
2019; and (2) Chambers had pled guilty to and had been convicted of two
additional felony offenses in 19-CR-00064. The circuit court also denied
Chambers’ request to run his sentence in 17-CR-00248 concurrently with the
sentence he had received in 19-CR-00064. This appeal followed.
Chambers’ sole argument on appeal is that the circuit court erred by
refusing to run his sentence of imprisonment in 17-CR-00248 concurrently – as
opposed to consecutively – with the sentence he received in 19-CR-00064. In
support, he cites KRS 533.040(3), which provides:
A sentence of probation or conditional discharge shall
run concurrently with any federal or state jail, prison, or
parole term for another offense to which the defendant is
or becomes subject during the period, unless the sentence
of probation or conditional discharge is revoked. The
revocation shall take place prior to parole under or
expiration of the sentence of imprisonment or within
ninety (90) days after the grounds for revocation come to
the attention of the Department of Corrections,
whichever occurs first.
In a nutshell, Chambers asserts that KRS 533.040(3) required the
circuit court to run his sentences concurrently because the revocation of his
probation did not take place “within ninety (90) days after the grounds for
revocation” came to the attention of the Department of Corrections.
-4-
That argument however, ignores the interplay between KRS
533.040(3) and KRS 533.060(2) in circumstances where an individual, such as
himself, is granted probation for a felony sentence by a Kentucky state court, and
then incurs a new Kentucky state court felony sentence while on probation. KRS
533.060(2) provides:
When a person has been convicted of a felony and is
committed to a correctional detention facility and
released on parole or has been released by the court on
probation, shock probation, or conditional discharge, and
is convicted or enters a plea of guilty to a felony
committed while on parole, probation, shock probation,
or conditional discharge, the person shall not be eligible
for probation, shock probation, or conditional discharge
and the period of confinement for that felony shall not
run concurrently with any other sentence.
Our Supreme Court thoroughly addressed the interplay between these
two provisions in Commonwealth v. Collinsworth, 628 S.W.3d 82 (Ky. 2021),
explaining:
Brewer v. Commonwealth involved identical factual
circumstances and is clearly binding on our Court of
Appeals. 922 S.W.2d 380 (Ky. 1996). In 1992, Brewer
pled guilty to felony theft charges in Warren County, for
which he was sentenced to one-year’s incarceration and
five years of probation. Id. During his probationary
period, Brewer committed an additional felony in Barren
County. Id. at 381. On January 15, 1993, Brewer’s
probation officer notified the Commonwealth’s Attorney
of the Barren County offense. On May 3, 1993 Brewer
pled guilty to the Barren County felony. Id. The
Commonwealth did not move to revoke Brewer’s
probation for his Warren County conviction until May
-5-
17, 1993, more than 90 days after receiving notice of
Brewer’s Barren County offense. Id. Subsequently,
Brewer’s counsel asserted that KRS 533.040(3) required
that his Warren and Barren County sentences be run
concurrently. This Court disagreed, holding that KRS
533.040(3) and KRS 533.060(2) directly conflicted and
that the provision in KRS 533.060(2) which forbade
concurrent sentences for subsequent felonies controlled.
Id. at 381-82.
This Court confirmed Brewer’s central holding in
Commonwealth v. Love, in which we stated,
When a Kentucky state court probationer
incurs a new Kentucky state court felony
sentence while on probation, parole, shock
probation or conditional discharge from a
Kentucky state court, the ninety-day window
of KRS 533.040(3) does not apply. Instead,
in those situations, KRS 533.060, which
mandates consecutive sentencing for
felonies committed while on probation,
applies.
334 S.W.3d at 95, n.11.
Moreover, since the Brewer decision, our Court of
Appeals has applied Brewer time and again without
incident or confusion. See, e.g., Commonwealth v. Hines,
2012-CA-002212-MR, 2014 WL 631689, at *2 (Ky.
App. Feb. 14, 2014) (stating “[i]n accordance with
[Brewer] and [Love], we believe the law is clear that
when a defendant receives a probated sentence in state
court and is subsequently convicted of another felony,
KRS 533.060 is applicable and mandates consecutive
sentences[ ]”); Pitney v. Commonwealth, 2012-CA-
002043-MR, 2013 WL 6046073 (Ky. App. Nov. 15,
2013) (reiterating Brewer’s holding that KRS 533.060(2)
required consecutive sentences in similar factual
circumstances to the case before us); Dorris v. Kentucky
-6-
Dep’t of Corrs., 2019-CA-1223-MR, 2021 WL 840332
(Ky. App. Mar. 5, 2021) (echoing that Brewer controls
when individuals commit a subsequent felony while on
parole or probation).
Finally, we note that in 2011 the General
Assembly directly addressed KRS Chapter 533 in House
Bill 463 but did not change the operative language at
issue in this case. 2011 Ky. Acts ch. 4. As we stated in
Rye v. Weasel, “a strong implication [exists] that the
legislature agrees with a prior court interpretation of its
statute when it does not amend the statute interpreted.”
934 S.W.2d 257, 262 (Ky. 1996) (citation omitted).
Id. at 87-88.
Considering the foregoing, the Graves Circuit Court committed no
error by running Chambers’ sentence in this matter consecutively, rather than
concurrently. We therefore, AFFIRM.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Karen Shuff Maurer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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Timothy Don Chambers v. Commonwealth of Kentucky
Combined Opinion