FROM JEFFERSON CIRCUIT COURT HONORABLE MITCH PERRY, JUDGE
ACTION NOS. 16-CR-000837 AND 16-CR-000945
FOR APPELLANT: Andy Beshear Attorney General of Kentucky
Jeanne Anderson Special Assistant Attorney General
FOR APPELLEE: Cicely J. Lambert Louisville, Kentucky.
BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE.
Commonwealth of Kentucky appeals from the grant of Keith
Reed's motion for shock probation. The Commonwealth
argues that Appellee is not eligible for shock probation
because he committed a violent crime and because the order
granting shock probation was untimely entered. We find no
error and affirm.
Knott was living with Appellee on March 24, 2016. On that
date, a number of people were gathered at Appellee's home
socializing outside. Appellee, who was initially inside the
residence, eventually exited and began complaining about the
people outside. Appellee began arguing with Andrea Love, the
mother of Mr. Knott's child. Mr. Knott got between Ms.
Love and Appellee. Appellee and Mr. Knott began arguing and
Mr. Knott punched Appellee. Mr. Knott and Appellee then began
fighting on the ground. Ms. Love and Appellee's paramour
tried to break up the fight, with Ms. Love punching Appellee.
the fight ended, and Appellee went inside the house. Appellee
returned outside with a baseball bat. Mr. Knott took the bat
away from Appellee. Appellee then went back inside and
retrieved a kitchen knife and a cell phone. He then went back
outside. Appellee was on the porch of the residence with the
knife in one hand and the phone in the other. Appellee called
Knott, with the bat, then approached Appellee. After yelling
at one another, Mr. Knott threw the bat away and stated that
the two should "fight like men." Appellee did not
drop the knife. Mr. Knott then punched Appellee and Appellee
stabbed Mr. Knott. Mr. Knott died from the stab wound.
Appellee was found guilty by a jury of reckless homicide and
being a persistent felony offender in the first degree.
Appellee was sentenced to fifteen years in prison.
March 28, 2018, Appellee timely filed a motion for shock
probation. The court held a hearing on the matter. The
Commonwealth argued that Appellee should not be granted shock
probation because he committed a violent act. The court
disagreed with the Commonwealth's argument and granted
Appellee shock probation. This appeal followed.
Commonwealth's first argument on appeal is that Appellee
is not entitled to shock probation. The relevant statutes at
issue are Kentucky Revised Statute (KRS) 439.265, the
conditional discharge statute, and KRS 532.080, the
persistent felony offender statute. KRS 439.265 states in
(1) Subject to the provisions of KRS Chapter 439 and Chapters
500 to 534, any Circuit Court may, upon motion of the
defendant made not earlier than thirty (30) days nor later
than one hundred eighty (180) days after the defendant has
been incarcerated in a county jail following his conviction
and sentencing pending delivery to the institution to which
he has been sentenced, or delivered to the keeper of the
institution to which he has been sentenced, suspend the
further execution of the sentence and place the defendant on
probation upon terms the court determines. Time spent on any
form of release following conviction shall not count toward
time required under this section.
(2) The court shall consider any motion filed in accordance
with subsection (1) of this section within sixty (60) days of
the filing date of that motion, and shall enter its ruling
within ten (10) days after considering the motion. The
defendant may, in the discretion of the trial court, have the
right to a hearing on any motion he may file, or have filed
for him, that would suspend further execution of sentence.
Any court order granting or denying a motion to suspend
further execution of sentence is not reviewable.
532.080(7) concerns shock probation for people convicted of
being a persistent felony offender in the first degree, which
applies to Appellee. ...