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Collinsworth v. Commonwealth

Court of Appeals of Kentucky

December 7, 2018

BOBBIE COLLINSWORTH APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM KENTON CIRCUIT COURT HONORABLE KATHLEEN S. LAPE, JUDGE ACTION NO. 15-CR-00654

          BRIEFS FOR APPELLANT: Steven Nathan Goens Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky

          BEFORE: COMBS, KRAMER AND THOMPSON, JUDGES.

          OPINION

          THOMPSON, JUDGE.

         Bobbie Collinsworth appeals from the order on revocation of probation in Kenton Circuit Court case number 15-CR-00654 (the Kenton County case) on the basis that this sentence should have been ordered concurrent with her sentences in Campbell Circuit Court case numbers 16-CR-00457 and 16-CR-00458 (the Campbell County cases).

         In February 2016, Collinsworth pled guilty in the Kenton County case to criminal possession of a forged instrument, second degree, a class D felony. In March 2016, the court entered a judgment of conviction and she was sentenced to three years of incarceration, probated for five years, and ordered to serve thirty days with no credit for time served.

         While on probation, approximately five weeks after completing her thirty-day sanction, Collinsworth committed additional crimes in Campbell County, was arrested and remained in jail. On July 27, 2016, in case number 16-CR-00457, Collinsworth was convicted for possession of a controlled substance, heroin, and in case number 16-CR-00458, she was convicted for tampering with physical evidence and possession of a controlled substance, heroin.[1] These crimes were all Class D felonies. In each case, she was sentenced to serve one year of incarceration, for a total of two years.

         On October 19, 2016, Collinsworth's probation officer filed an affidavit and a violation of supervision report in the Kenton County case based on Collinsworth's receiving the two new felony convictions in the Campbell County cases. Collinsworth's probation officer recommended that her probation be revoked. A bench warrant was issued for her arrest.

         Collinsworth's aggregate sentences as a nonviolent offender for the Campbell County cases qualified her for early consideration of parole pursuant to Kentucky Revised Statutes (KRS) 439.340(3)(a). After being incarcerated for approximately six months, Collinsworth was granted parole effective November 17, 2016, in her Campbell County cases. As part of her parole, she was ordered to complete substance abuse treatment and mental health treatment. Collinsworth continued to be held in custody pursuant to her Kenton County case.

         At Collinsworth's revocation of probation hearing held on December 6, 2016, she stipulated to the probation officer's affidavit but explained there was no agreement on her disposition.

         The circuit court asked Collinsworth's probation officer why it took so long to file for revocation of Collinsworth's probation after she was arrested on subsequent crimes and then convicted. The probation officer indicated that he inherited her case and it disappeared from his caseload after she was sentenced but reappeared when she was considered for parole. He also testified that it was in Collinsworth's best interest to have her probation revoked because if she later obtained parole on the Kenton County case, she would receive some credit while on parole, but none while on probation.

         After the circuit court ruled Collinsworth's probation would be revoked, Collinsworth requested that she be sentenced concurrently with the Campbell County cases. She argued the Commonwealth's delay in seeking probation revocation required her sentence in the Kenton County case to be ordered concurrent with her Campbell County cases pursuant to KRS 533.040(3). The Commonwealth requested that Collinsworth's sentence in the Kenton County case be ordered to be served consecutively to her sentences in the Campbell County cases. The circuit court stated it would make Collinsworth's sentence in the Kenton case consecutive to those in the Campbell cases, explaining it interpreted KRS 533.040(3) differently than Collinsworth.

         In the written order revoking probation, entered on December 12, 2016, the circuit court found based on Collinsworth's stipulations that she violated her probation, she was a significant risk to the community and she could not be appropriately managed in the community. The circuit court ordered Collinsworth incarcerated for three years, with credit for time spent in custody. The written order was silent as to whether ...


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