Opinion of the Court by Justice ABRAMSON.
This case comes to the Supreme Court as a matter-of-right appeal brought by Appellant Mitchell Jackson from an order of the Jefferson Circuit Court revoking his probation and ordering him to serve a twenty-year sentence derived from two separate judgments of conviction. Jackson
In 2000, the Jefferson County Grand Jury returned two separate indictments, 2000-CR-0667 and 2000-CR-1372, charging Jackson with various offenses. In 2003, Jackson entered a plea agreement and two judgments were entered in accord with that agreement. In 2000-CR-0667, he pled guilty to receiving stolen property, over $300.00 and theft by unlawful taking, over $300.00. He also pled guilty to being a Persistent Felony Offender in the first degree (PFO1). Jackson was sentenced to concurrent five-year terms on the receipt of stolen property and theft offenses, enhanced to ten years by the PFO1. The ten-year sentence was to run consecutively to the sentence imposed in a separate judgment entered the same day in 2000-CR-1372. In 2000-CR-1372, Jackson pled guilty to two counts of first-degree wanton endangerment; fleeing or evading the police; third-degree assault; resisting arrest; third-degree criminal mischief; driving under the influence; reckless driving; and PFO1. Jackson was sentenced to concurrent five-year terms on each of the felony counts, enhanced to ten years by the PFOl, to run consecutively to the ten years imposed in 2000-CR-0667. In both judgments, each entered on September 3, 2003, the sentences were probated for five years on the same terms and conditions.
In 2005, Jackson entered a plea of guilty to additional charges not relevant to the instant appeal. The guilty plea and judgment in that case, however, are relevant inasmuch as Jackson agreed to a tolling of the five-year probationary period imposed by the two 2003 judgments. Specifically, the 2005 judgment, which imposed an eight-year sentence, stated, "Further, the Defendant agreed to toll the statutory five year period on Indictment No. 00CR0667 and 00CR1372, which sentences must run consecutively if revoked with this eight year sentence." Jackson served two years of the eight-year sentence and was paroled in May of 2007.
On October 19, 2007, the Commonwealth filed a motion to revoke Jackson's probation and a revocation hearing was held on December 8, 2008. At the hearing's conclusion, the trial court revoked his probation and ordered him to serve twenty-years imprisonment. He appeals to this Court, but the Commonwealth contends that the appropriate forum for his appeal is the Court of Appeals.
The Commonwealth initially seeks to dismiss this appeal or, alternatively, to transfer the appeal to the Court of Appeals. The Commonwealth asserts this is not an appeal from a "judgment" and,
While this Court has appellate jurisdiction of judgments in which a sentence of twenty or more years is imposed, id., other appeals, generally, "shall be taken to the next higher court." CR 73.01(2). Accordingly, we must first determine whether a probation revocation order constitutes a "judgment . . . imposing a sentence" for purposes of Ky. Const. § 110(2)(b) and, if so, whether the sentence imposed here meets the twenty-year imprisonment threshold given that the sentence was reached by combining two underlying judgments imposing ten years each. Because we conclude a probation revocation order is not a judgment imposing a sentence, we do not reach the second inquiry.
Surprisingly, this Court has never directly addressed whether a revocation order that requires a defendant to serve twenty or more years imprisonment constitutes a judgment imposing such sentence under Ky. Const. § 110(2)(b). Although Justice Keller, in a dissent joined by Justice Graves, in Stallworth v. Commonwealth, 102 S.W.3d 918 (Ky.2003), opined that a revocation order was not a judgment under the aforementioned constitutional provision, the issue was apparently not raised by the parties in that case as it was not addressed in the majority opinion. However, Justice Keller, in his dissenting opinion, explained:
Id. at 925 (emphasis in original). We agree with Justice Keller's interpretation of the constitutional provision but note that whether that construction necessarily precluded this Court's direct review in Stallworth is an issue not presently before us. The unique procedural posture created by the trial court's errors in that case is decidedly different from the issue in this comparatively simple case. We leave for another day what, if any, special circumstances might give rise to matter-of-right jurisdiction in this Court immediately following probation revocation and proceed to the issue that is before us.
Plainly stated, Ky. Const. § 110(2)(b) lends itself to a straight-forward application, permitting a direct appeal to this Court only from judgments that impose a sentence of twenty years or more, not from probation revocation orders, regardless of the length of the resulting sentence. This conclusion is derived from consideration of some basic sentencing principles. First, even though a defendant may be
Applying the foregoing principles to the case at bar, it is clear that Jackson was entitled to a matter-of-right appeal (although his unconditional guilty plea precluded appeal on all but a limited number of issues)
Moreover, it is well established that judgments or orders collateral to the judgment of conviction, provided that the death penalty was not imposed, must be appealed to the next higher court even where the judgment of conviction was appealable directly to this Court under Ky. Const. § 110(2)(b). Cardine v. Commonwealth, 102 S.W.3d 927 (Ky.2003) (holding that judgments on RCr 11.42 motions and CR 60.02 motions are appealable to the Court of Appeals in all cases except those imposing death); Williams v. Venters, supra. Although probation revocation results in service of the sentence previously imposed, it is a matter that is entirely collateral to the judgment of conviction. While Ky. Const. § 110(2)(b) ensures that proceedings that lead to convictions resulting in the most significant penalties, i.e., twenty years imprisonment or more, are reviewed as a matter of right by this Commonwealth's highest Court, the merits of an appeal from an order revoking probation concern a defendant's alleged violations of the terms or conditions of his probation, matters wholly independent of the proceedings producing the underlying convictions. As such, probation revocation proceedings constitute collateral, post-conviction proceedings. This further confirms our conclusion that probation revocation orders do not constitute judgments "imposing a sentence" as required by Ky. Const. § 110(2)(b). Such orders, absent unusual circumstances not present here,
Accordingly, by separate order, we grant the Commonwealth's motion to dismiss this appeal and direct the Court of Appeals to accept Jackson's belated appeal.
All sitting. All concur.
The Commonwealth's motion to dismiss is GRANTED and the Court of Appeals is directed to accept Appellant's belated appeal.
All sitting. All concur.