The Kentucky Court of Appeals recently affirmed Letcher Circuit Judge Sam Wright’s decision ordering a Letcher County man to serve 10 years in prison after his probation was revoked.
Shannon Burl Fultz had filed a motion in Letcher Circuit Court contending the 10-year sentence was void and asserted that he received ineffective counsel in entering his guilty plea. Wright denied the motion and Fultz filed an appeal to the Kentucky Court of Appeals.
Fultz pleaded guilty to second-degree assault, firstdegree criminal mischief, driving under the influence, leaving the scene of an accident and operating an automobile on a suspended license in connection with a 2003 automobile accident in which Fultz crashed his automobile into another automobile driven by Monica Ross. She received serious physical injury from the wreck, and damages to her automobile totaled more than $1,000.
As part of the plea agreement, Fultz was ordered to pay fines and restitution. He was sentenced to two sentences of five years imprisonment to run concurrently and be probated for five years. The 2005 sentence stated that Fultz would be required to serve the two five-year sentences consecutively for a total of ten years if his probation was revoked.
Fultz’s probation was revoked May 25, 2006, but he was ordered to serve five years instead of the 10 years stated in the original sentencing order. Fultz later received shock probation and started participating in Letcher County Drug Court. His probation was revoked again in 2008. This time Fultz was ordered to serve 10 years imprisonment as part of the 2005 plea agreement.
Fultz’s attorney tried to have the sentence reduced to five years, but Wright overruled the motion stating that the 2006 order of five years was the result of a clerical error.
Although Fultz did not appeal the ruling directly, he later filed a motion in September 2008 contending the 10-year sentence to be void and asserting that he received ineffective assistance of counsel in entering his guilty plea.
The Court of Appeals stated “Fultz has not asserted his acceptance of the plea bargain was not knowing or voluntary because he did not understand the provision which extended his sentence, or that counsel’s performance in advising him on this matter was defective; neither has he identified a statute or constitutional principle which renders the sentence excessive.”
The Court of Appeals said Wright did not abuse his discretion in sentencing Fultz to 10 years.
Fultz also contended that his counsel was ineffective when his attorney advised him to accept a plea to both charges of criminal mischief and second degree assault, which Fultz said was in violation of double jeopardy.
The Court of Appeals said a defendant may be convicted of two offenses arising from the same act. The Court of Appeals said a charge of criminal mischief contemplates damage to property and conviction for second-degree assault requires serious physical injury to a person.
The Court of Appeals stated in its opinion rendered Feb. 18 that “conviction of both offenses did not violate the constitutional prohibition against double jeopardy and Fultz’s trial counsel was not deficient in advising him to plead guilty to both.”
Letcher Commonwealth’s Attorney Edison Banks said he is angry that taxpayers’ money was spent on what he termed a “frivolous” appeal when other convicted felons are getting out of jail after serving 15 percent for nonviolent crimes.
“Here was an appeal that never should have been filed,” said Banks.