RENDERED: JUNE 17, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0977-MR
ELBERT PHILLIP LONG APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
v. HONORABLE LISA P. JONES, JUDGE
ACTION NO. 76-CR-18196
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: DIXON, JONES, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: Elbert Phillip Long appeals the order denying his pro se motion
to amend his sentence pursuant to CR1 60.02 and 60.03, entered July 23, 2021, by
the Daviess Circuit Court. After careful review of the briefs, record, and law, we
reverse and remand.
1
Kentucky Rules of Civil Procedure.
FACTS AND PROCEDURAL BACKGROUND
In 1977, Long was convicted of murder and attempted rape and was
sentenced, respectively, to life imprisonment and five years to run consecutively.
His convictions were affirmed on direct appeal. Long v. Commonwealth, 559
S.W.2d 482 (Ky. 1977). Thereafter, Long filed a multitude of collateral challenges
regarding his convictions and sentences, as well as state and federal civil actions
pertaining to the conditions of his confinement. In June 2021, Long again sought
to vacate, amend, or correct his sentence pursuant to CR 60.02 and 60.03,
renewing his claim that his sentence was illegal. Determining that Long’s motion
was successive and procedurally barred, the court denied relief, and this appeal
followed.
ANALYSIS
Long raises various claims on appeal2; however, we need only address
his contention that his consecutive sentences of life imprisonment and five years
are illegal and subject to correction at any time.
“A sentence that lies outside the statutory limits is an illegal
sentence[.]” McClanahan v. Commonwealth, 308 S.W.3d 694, 701 (Ky. 2010).
2
Long also challenges the court’s failure to certify the record in accordance with his designation,
which is moot given our ruling, and the manner in which the Department of Corrections treats
his sentences for purposes of classification, which is not properly before this Court (see Mason v.
Commonwealth, 331 S.W.3d 610, 629 (Ky. 2011)).
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Illegal sentences are considered void only to the extent they exceed statutory limits
and are always subject to correction. Phon v. Commonwealth, 545 S.W.3d 284,
304-07 (Ky. 2018). KRS3 532.110 and KRS 532.080 provide that life
imprisonment is the longest permissible sentence which may be imposed, and
consequently, it is settled law that a court exceeds this limitation when additional
sentences arising from the same judgment are ordered to be served consecutively
to a life sentence. Goben v. Commonwealth, 503 S.W.3d 890, 923 (Ky. 2016);
Bedell v. Commonwealth, 870 S.W.2d 779, 783 (Ky. 1993)4; Shannon v.
Commonwealth, 562 S.W.2d 301, 303 (Ky. 1978), overruled on other grounds by
Wellman v. Commonwealth, 694 S.W.2d 696 (Ky. 1985).
As Kentucky appellate courts have twice acknowledged, Long’s
sentence to life imprisonment plus five years exceeds the statutory limit established
by KRS 532.110 and KRS 532.080; thus, the sentence is illegal.5 The cursory
record on appeal demonstrates that this erroneous judgment has never been
3
Kentucky Revised Statutes.
4
Overruling Rackley v. Commonwealth, 674 S.W.2d 512 (Ky. 1984), which recognized a
distinction in capital cases.
5
In Long v. Sapp, No. 1999-CA-002185-MR, at 2, (Ky. App. Oct. 20, 2000), the Court noted in
passing that, “[a]though the original judgment stated the sentences were to be served
consecutively, they are now treated as concurrent sentences[,]” citing in support Bedell, supra,
and See v. Commonwealth, 746 S.W.2d 401 (Ky. 1988). Additionally, as cited by the
Commonwealth, in Long v. White, No. 2018-CA-001485-MR, 2019 WL 1092656, at *1 (Ky.
App. Mar. 8, 2019), the Court stated that a review of Long’s prior litigation “indicate[s] that [he]
was correct that his sentence of life plus five years was unlawful, but his sentence has long since
been corrected to life imprisonment.”
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corrected. Accordingly, we must reverse and remand for entry of an amended
sentence. On remand, the court shall resentence Long to life on the murder charge
and five years on the attempted rape charge to run concurrently.
CONCLUSION
Therefore, and for the forgoing reasons, the order of the Daviess
Circuit Court is REVERSED, and this matter is REMANDED for entry of an
amended judgment in conformance with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Elbert Phillip Long, pro se Daniel Cameron
LaGrange, Kentucky Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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