Elvis Wynn v. Commonwealth of Kentucky

                                                    RENDERED: APRIL 24, 2025
                                                          TO BE PUBLISHED


               Supreme Court of Kentucky
                               2023-SC-0573-MR


ELVIS WYNN                                                            APPELLANT


                   ON APPEAL FROM KNOX CIRCUIT COURT
V.                  HONORABLE GREGORY A. LAY, JUDGE
                             NO. 22-CR-00179


COMMONWEALTH OF KENTUCKY                                               APPELLEE



               OPINION OF THE COURT BY JUSTICE KELLER

                                  AFFIRMING

      A Knox County jury convicted Elvis Wynn of one count of bail jumping in

the first degree and one count of being a persistent felony offender (“PFO”) in

the first degree, as a result of his failure to appear at an October 2022

sentencing hearing in another criminal matter. The Knox Circuit Court

thereafter sentenced Wynn to twenty years of imprisonment consistent with the

jury’s recommendation. Wynn now appeals to this Court as a matter of right

and challenges his convictions. KY. CONST. § 110(2)(b). Having reviewed the

record, the arguments of the parties, and the applicable law, this Court affirms

the judgment of the Knox Circuit Court.

                        I.     FACTS & BACKGROUND

      In September 2022, Wynn entered a guilty plea in case No. 21-CR-00068

to charges of possession of a firearm by a convicted felon, operating a motor
vehicle while under the influence, and PFO in the second degree. Wynn was

thereafter released on home incarceration and ordered to appear for a

sentencing hearing in Knox Circuit Court on October 17, 2022. Wynn, however,

failed to appear at that hearing and was subsequently indicted in case No. 22-

CR-00179 on new charges of bail jumping in the first degree and PFO in the

first degree. Wynn was eventually arrested in February 2023 and subsequently

received a seven-year sentence of imprisonment for his original underlying

criminal convictions in case No. 21-CR-00068. On September 5, 2023, the

Knox Circuit Court held a one-day jury trial on Wynn’s new first-degree bail

jumping and first-degree PFO charges.

      Pursuant to KRS 520.070(1), “A person is guilty of bail jumping in the

first degree when, having been released from custody by court order, with or

without bail, upon condition that he will subsequently appear at a specified

time and place in connection with a charge of having committed a felony, he

intentionally fails to appear at that time and place.” In turn, proof that the

defendant has indeed been “charge[d]” with having committed a felony is an

essential element of first-degree bail jumping.

      Prior to trial, however, Wynn filed a motion in limine seeking to exclude

any evidence that would identify the underlying felony charge (possession of a

firearm by a convicted felon) that necessitated his presence in Knox Circuit

Court on October 17, 2022, and ultimately precipitated his first-degree bail

jumping charge. On the morning of trial, Wynn specifically argued that

informing the jury of the specific nature of his prior felony charge would likely

                                         2
prejudice his defense. Accordingly, Wynn offered to “stipulate” to the fact that

he had been charged with a felony. The Commonwealth, however, argued that

it was not required to accept Wynn’s stipulation, and that it was entitled to

prove the elements of first-degree bail jumping with evidence of its own

choosing. Specifically, the Commonwealth intended to introduce a video

recording of Wynn’s court appearance and plea colloquy in Knox Circuit Court

on September 12, 2022, to prove that Wynn had been ordered to appear in

court in October 2022 in connection with an underlying felony charge. The trial

court ultimately agreed with the Commonwealth and overruled Wynn’s motion.

      At trial, the Commonwealth did introduce the aforementioned video

recording of Wynn’s September 12, 2022, court appearance in Knox Circuit

Court wherein Wynn can be seen pleading guilty to charges of possession of a

firearm by a convicted felon, operating a motor vehicle while under the

influence, and PFO in the second degree. The Commonwealth also introduced a

similar video recording from Knox Circuit Court on October 17, 2022, wherein

the trial court noted that Wynn had failed to appear for his scheduled

sentencing hearing and issued a bench warrant for his arrest. After the

Commonwealth introduced these videos, Corbin Police Department Officer

Christopher Brown testified that he personally served Wynn with a warrant for

his arrest in February 2023. According to Officer Brown, police discovered

Wynn in the “game room” of a Royal Tobacco store in Corbin, Kentucky.

      Wynn himself took the witness stand and testified that he was with his

father on October 17, 2022, when he was supposed to appear for sentencing.

                                        3
Wynn testified that he “just couldn’t make it in time” for that sentencing

hearing. Wynn also testified that his mother may have “ended up in the

hospital” on the same day he was supposed to appear for sentencing. Despite

his failure to appear for sentencing in October 2022, Wynn testified that he

remained compliant with his bond conditions and remained on home

incarceration until he was eventually arrested in February 2023. Wynn also

testified that he was aware the Knox Circuit Court had issued a warrant for his

arrest after he failed to appear for sentencing, yet he took no steps to contact

the court. Wynn’s father, Jessie Wynn, testified that he could not remember

whether he was with his son on October 17, 2022, and also testified that he

was not with Wynn when he was arrested.

      After the close of all evidence, the jury convicted Wynn of bail jumping in

the first degree and recommended that he receive a five-year sentence of

imprisonment. However, after concluding that Wynn was a first-degree

persistent felony offender, the jury recommended that Wynn receive the

maximum enhanced penalty of twenty years’ imprisonment. The Knox Circuit

Court thereafter sentenced Wynn in accordance with the jury’s

recommendation. This appeal followed.

      Further facts will be developed below as necessary.

                                II.    ANALYSIS

      Wynn makes two arguments on appeal. First, he asserts that the trial

court made a reversible error it when overruled his motion to exclude any

evidence of the nature of his underlying felony charge and allowed the

                                        4
Commonwealth to admit the video recording of his September 2022 appearance

in Knox Circuit Court. Second, he argues that his resulting twenty-year

sentence for first-degree bail jumping violates the relevant statutory

“sentencing cap” as set forth in KRS 532.110(1)(c). This Court, however, is

unpersuaded by Wynn’s arguments on appeal, and affirms the judgment of the

Knox Circuit Court.

   A. The trial court abused its discretion by admitting evidence that
      identified the specific nature of Wynn’s prior felony convictions.
      However, that error was nonetheless harmless.

      As aforementioned, Wynn takes issue with the portions of his recorded

court appearance in September 2022 that depict him pleading guilty to various

criminal charges. Wynn, however, also challenges the admission of a portion of

that video wherein his attorney requested that the trial court release Wynn on

bond pending sentencing. During that colloquy, Wynn’s defense counsel briefly

acknowledged that Wynn had previously “failed to produce a sample for a drug

screen.” Wynn’s defense counsel also stated that, “[Wynn] understands that

bail jumping [and] PFO [in the first degree] could be a potential if he did not

come back, and he understands that he could be indicted again for that if he

didn’t come back and abide by the Court’s rules.”

      Wynn argues on appeal that the video recording of his September 2022

appearance in Knox Circuit Court contained improper evidence of his prior bad

acts prohibited by Kentucky Rule of Evidence (“KRE”) 404(b). More specifically,

he asserts that the trial court erred in admitting this evidence because its

probative value was substantially outweighed by its potential for undue

                                        5
prejudice. Rather than admit this evidence, Wynn argues that the trial court

should have excluded the video of his September 2022 court appearance and

allowed him to “stipulate” that he had been ordered to appear in court in

connection with a charge of having committed a felony. The Commonwealth

contrarily asserts that the video of Wynn’s September 2022 court appearance

was relevant to prove the elements of first-degree bail jumping, and that the

Commonwealth was entitled to prove its case with competent evidence of its

choosing.

      “Trial courts enjoy substantial discretion in admitting or excluding

evidence at trial.” Daugherty v. Commonwealth, 467 S.W.3d 222, 231 (Ky.

2015). Indeed, “balancing . . . the probative value of . . . evidence against the

danger of undue prejudice is a task properly reserved for the sound discretion

of the trial judge.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

Accordingly, the proper standard of review on appeal is to ask whether there

has been an “abuse of that discretion.” Id. A trial court abuses its discretion

when its decision is “arbitrary, unreasonable, unfair, or unsupported by sound

legal principles.” Id.

      We conclude that the Commonwealth’s video of Wynn’s September 2022

court appearance certainly contained evidence of Wynn’s other crimes, wrongs,

or acts. Specifically, the video depicted Wynn pleading guilty to multiple

crimes. 1 Pursuant to KRE 404(b), “[e]vidence of other crimes, wrongs, or acts is


      1 We are unpersuaded by Wynn’s contention that the portion of his recorded

court appearance tending to prove that he “failed to produce a sample for a drug
screen” on some unknown occasion is evidence prohibited by KRE 404(b). Without
                                         6
not admissible to prove the character of a person in order to show action in

conformity therewith.” Evidence of a defendant’s other crimes, wrongs, or acts

may perhaps be admissible, however, “[i]f offered for some other purpose, such

as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident[.]” KRE 404(b)(1). The list of “other

purpose[s]” provided in KRE 404(b)(1) is “illustrative rather than exhaustive.”

Kelly v. Commonwealth, 655 S.W.3d 154, 165 (Ky. 2022) (citing Tamme v.

Commonwealth, 973 S.W.2d 13, 29 (Ky. 1998)).

      Here, there can be no doubt that the video recording of Wynn’s

September 2022, court appearance was relevant and probative for some non-

propensity purpose, i.e., to prove that Wynn had been released from custody

and ordered to “subsequently appear at a specified time and place in

connection with a charge of having committed a felony.” KRS 520.070(1).

Nonetheless, even relevant evidence “may be excluded if its probative value is

substantially outweighed by the danger of undue prejudice.” KRE 403.

      “Evidence that is unduly prejudicial is that which ‘appeals to the jury’s

sympathies, arouses its sense of horror, provokes its instinct to punish, or

otherwise may cause a jury to base its decision on something other than the

established propositions in the case.’” Breazeale v. Commonwealth, 600 S.W.3d


more context, the mere act of failing to produce a sample for a drug screen cannot be
appropriately labeled a prior bad act. This statement from Wynn’s attorney did not
invite the kind of undue prejudice intended to be averted by KRE 404(b). More
specifically, the fact that Wynn had once “failed to produce a sample for a drug screen”
did not serve to paint him as someone with a criminal character. Further, even if the
trial court had erred in admitting this testimony, there can be little argument that this
statement seriously affected the jury’s verdict.

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682, 693–94 (Ky. 2020) (quoting Richmond v. Commonwealth, 534 S.W.3d 228,

232 (Ky. 2017)). The “undue prejudice” most often occasioned by evidence of

the defendant’s other crimes is the “forbidden character inference” that KRE

404(b) is intended to prevent. Jenkins v. Commonwealth, 496 S.W.3d 435, 459

(Ky. 2016).

      On the other hand, “[t]he ‘probative value’ or ‘probative worth’ of evidence

is a measure of how much the evidence tends to make the fact it is introduced

to prove more or less probable. The probative force of a particular item of

evidence is, therefore, inherently dependent upon the overall probativeness of

other available evidence on that point.” Hall v. Commonwealth, 468 S.W.3d

814, 823–24 (Ky. 2015). Indeed, when a trial court exercises its discretion

under KRE 403 and balances a piece of evidence’s probative value against its

potential to inspire undue prejudice, the trial court “must consider . . .

evidentiary alternatives” or “other available evidence to prove the fact in issue.”

Norris v. Commonwealth, 89 S.W.3d 411, 416 (Ky. 2002); see also Sutton v.

Commonwealth, 627 S.W.3d 836, 854 (Ky. 2021) (holding that, “[w]hen ruling

on the admissibility of a gruesome photograph, the trial court should consider

whether there are alternatives that would prove the fact at issue without

comparable risk of prejudice.”).

      Even so, the general rule in this Commonwealth has long been that a

defendant’s offer to “stipulate” to a fact at issue does not deprive the trial court

of the discretion to admit competing evidence offered by the Commonwealth.

Helton v. Commonwealth, 595 S.W.3d 128, 136 (Ky. 2020). Indeed, the trial

                                         8
court cannot accept or deny a defendant’s offer to stipulate to a fact at issue

because a “stipulation” is an agreement made “between the parties.” Id.

“Furthermore, the Commonwealth is not obligated to accept an offer of

stipulation just because it has been presented,” and may instead “prove its

case by competent evidence of its own choosing.” Id. (quoting Pollini v.

Commonwealth, 172 S.W.3d 418, 424 (Ky. 2005)). “No court in this state has

the power to require the state to stipulate to anything.” Anderson v.

Commonwealth, 281 S.W.3d 761, 767–68 (Ky. 2009) (Cunningham, J.,

concurring in result only). Therefore, “[i]n cases where one party does not agree

to the proposed stipulation . . . the erstwhile stipulation is actually an

admission.” Id. at 764 n.11; see also Admission, BLACK’S LAW DICTIONARY (12th

ed. 2024) (defining “formal admission” as “[a] sworn admission by a party that

a fact is true, thereby obviating any need to prove the fact at trial.”).

Accordingly, one party’s “admission” is not necessarily a “stipulation.”

      Only in exceedingly rare circumstances, a defendant’s unilateral

admission of a fact at issue may be sufficient to render other competing

evidence inadmissible under KRE 403 when that competing evidence carries a

high risk of undue prejudice or otherwise has little probative value. Indeed,

while relying on the Supreme Court of the United States’s decision in Old Chief

v. United States, 519 U.S. 172 (1997), this Court has previously held that a

Kentucky defendant charged with possession of a firearm by a convicted felon,

KRS 527.040, may generally admit to the fact he or she has been previously

convicted of a felony, so as to preclude the Commonwealth from introducing

                                          9
evidence of the specific nature of that prior felony conviction. Anderson, 281

S.W.3d at 765–66. In Anderson, as in Old Chief, the prosecution attempted to

prove the defendant’s status as a convicted felon by introducing a certified

judgment showing the defendant’s earlier felony convictions. Id. at 762–63.

There, this Court determined that the trial court had “abused its discretion” by

admitting the Commonwealth’s preferred evidence over the defendant’s

admission. Id. at 766.

      In possession of a firearm by a convicted felon prosecutions, the rationale

behind excluding the prosecution’s preferred evidence of the defendant’s

specific felony convictions in favor of the defendant’s competing non-specific

“admission” is that while both pieces of evidence are equally probative of the

ultimate fact at issue (i.e., the defendant’s status as a convicted felon), only one

piece of evidence carries a risk of unduly prejudicing the defendant while that

same risk is “wholly absent from the other.” Old Chief, 519 U.S. at 191.

Further, “the prosecution’s usual right to present its evidence as it sees fit has

. . . virtually no application when the point at issue is a defendant’s legal

status” as a convicted felon. Anderson, 281 S.W.3d at 765 (internal quotation

marks omitted) (quoting Old Chief, 519 U.S. at 190).

      While this Court had previously expressly limited its holding in Anderson

only to prosecutions of possession of a firearm by a convicted felon charges,

281 S.W.3d at 766, we see no reason today why the logic and reasoning of

Anderson and Old Chief should not be sensibly applied to prosecutions of bail

jumping in the first degree. Like the crime of possession of a firearm by a

                                        10
convicted felon, the defendant’s “legal status” is an essential element of bail

jumping in the first degree. The only difference is that the crime of bail jumping

in the first degree requires proof that the defendant was “charge[d]” with having

committed a felony, KRS 520.070(1), whereas the crime of possession of a

firearm by a convicted felon requires proof that the defendant was actually

“convicted” of having committed a felony. KRS 527.040. Further, we see no

reason why identifying the specific nature of a defendant’s prior felony charges

or convictions would be any less unduly prejudicial to that defendant during a

first-degree bail jumping prosecution as opposed to a possession of a firearm

by a convicted felon prosecution.

       Accordingly, we conclude that the trial court indeed abused its

discretion here when it admitted the Commonwealth’s video recording of

Wynn’s September 12, 2022, court hearing wherein Wynn can be seen pleading

guilty to the charges of possession of a firearm by a convicted felon, operating a

motor vehicle while under the influence, and PFO in the second degree. First,

the Commonwealth’s proffered recording and Wynn’s competing admission

were equally probative of the fact at issue (i.e., that Wynn had been ordered to

appear in Knox Circuit Court on October 17, 2022, in connection with a charge

of having committed a felony). Second, the Commonwealth’s recording certainly

carried a danger of undue prejudice due to the nature of the specific charges

that Wynn pled guilty to at his September 2022 court appearance. By viewing

that recording, not only did the jury learn that Wynn had pled guilty to the

underlying felony of “possession of a firearm of a convicted felon,” but the

                                        11
nature of that conviction also necessitated that he had at least once been

convicted of another unknown felony. This unduly prejudicial evidence

certainly had the capacity to invite the inference that Wynn was a habitual

felon with criminal character. Therefore, there is no doubt that the limited

probative value of the Commonwealth’s recording of Wynn’s September 2022

court appearance was substantially outweighed by that evidence’s potential to

inspire undue prejudice.

      Nonetheless, this Court cannot say that the trial court’s error warrants a

reversal of Wynn’s convictions. “No error in . . . the admission . . . of evidence .

. . is ground for granting a new trial or for setting aside a verdict or for

vacating, modifying or otherwise disturbing a judgment or order unless it

appears to the court that the denial of such relief would be inconsistent with

substantial justice.” Kentucky Rule of Criminal Procedure (“RCr”) 9.24. This

Court has determined that “a nonconstitutional evidentiary error may be

deemed harmless if the reviewing court can say with fair assurance that the

judgment was not substantially swayed by the error.” Murray v.

Commonwealth, 399 S.W.3d 398, 404 (Ky. 2013) (citing Kotteakos v. United

States, 328 U.S. 750 (1946)). “The inquiry is not simply ‘whether there was

enough [evidence] to support the result, apart from the phase affected by the

error. It is rather, even so, whether the error itself had substantial influence. If

so, or if one is left in grave doubt, the conviction cannot stand.’” Winstead v.

Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009) (quoting Kotteakos, 328 U.S.

at 765).

                                         12
      Here, any undue prejudice that Wynn actually suffered as a result of the

disclosure of the specific nature of his prior criminal charges was likely

insignificant because those criminal charges (possession of a firearm by a

convicted felon, operating a motor vehicle while under the influence, and PFO

in the second degree) were not for violent or shocking offenses. Rather, if the

jury had not learned of the specific nature of Wynn’s criminal charges, it could

have very well speculated that he had been charged with far more serious

crimes. Further, the remaining evidence incriminating Wynn—namely his own

testimony—was probative and compelling. Wynn admitted at trial that he knew

the Knox Circuit Court had issued a warrant for his arrest after he failed to

appear for his October 17, 2022, sentencing hearing. However, Wynn also

testified that he took no steps to contact the court after his failure to appear

and that he instead remained at home until he was eventually arrested in

February 2023. This evidence alone was certainly probative to prove that Wynn

had “intentionally” failed to appear for his sentencing hearing. Therefore, we

cannot say that trial court’s error here substantially influenced the jury’s

verdict.

   B. Wynn’s twenty-year sentence for first-degree bail jumping must run
      consecutively to his earlier seven-year sentence.

      Wynn next argues that he received an erroneous sentence when the trial

court ordered him to serve a twenty-year sentence for bail jumping in case No.

22-CR-00179 that would run consecutively to his seven-year sentence

previously imposed in case No. 21-CR-00068. Wynn more specifically asserts

that the statutory “sentencing cap” set forth in KRS 532.110(1)(c) and this
                                        13
Court’s precedent in Kimmel v. Commonwealth, 671 S.W.3d 230 (Ky. 2023)

dictate that the aggregate of his two consecutive sentences could not exceed a

maximum of twenty years’ imprisonment. This Court holds that Wynn’s case is

distinguishable from that of Kimmel, and we affirm the Knox Circuit Court.

      Wynn was sentenced to a seven-year term of imprisonment in June 2023

for his convictions in case No. 21-CR-00068. After the jury convicted Wynn of

first-degree bail jumping at his September 2023 trial, the jury recommended

that he receive a five-year sentence enhanced to the maximum allowable

penalty of twenty years’ imprisonment because of his first-degree PFO status.

Prior to his sentencing, however, Wynn filed a “Motion to Impose Sentencing

Cap” in which he argued that the aggregate penalty for his felony convictions in

case Nos. 21-CR-00068 and 22-CR-00179 could not exceed twenty years in

accordance with KRS 532.110(1)(c). Because Wynn had already received a

seven-year sentence in No. 21-CR-00068, he argued that the trial court was

constrained to impose a maximum sentence of thirteen years in case No. 22-

CR-00179. The trial court ultimately denied Wynn’s motion and ordered him to

serve a twenty-year sentence for his first-degree bail jumping conviction that

would run consecutively to his previous seven-year sentence.

      To resolve Wynn’s arguments on appeal, a brief review of the relevant

statutes is first in order. Pursuant to KRS 533.060(3),

      When a person commits an offense while awaiting trial for another
      offense, and is subsequently convicted or enters a plea of guilty to
      the offense committed while awaiting trial, the sentence imposed for
      the offense committed while awaiting trial shall not run concurrently
      with confinement for the offense for which the person is awaiting
      trial.
                                       14
Relevant here, a defendant is considered to be “awaiting trial” for purposes of

KRS 533.060(3) during the period he is “awaiting sentencing.” Cosby v.

Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004). Accordingly, because Wynn was

convicted of having committed an act of first-degree bail jumping when he had

yet to be sentenced in case No. 21-CR-00068, the plain text of KRS 533.060(3)

would dictate that his resulting punishment for the offense of first-degree bail

jumping “shall not run concurrently” with his seven-year sentence for

possession of a firearm by a convicted felon.

      However, as it existed at the time of Wynn’s sentencing, KRS

532.110(1)(c), the so-called “sentencing cap” statute, relevantly stated that,

“the aggregate of consecutive indeterminate terms shall not exceed in

maximum length the longest extended term which would be authorized by KRS

532.080 for the highest class of crime for which any of the sentences is

imposed.” 2 Here, bail jumping in the first degree is a Class D felony. KRS

520.070(3). Possession of a firearm by a convicted felon—which Wynn was

convicted of in case No. 21-CR-00068—is also a Class D felony unless the

firearm possessed is a handgun in which case it is a Class C felony. KRS

527.040(2)(a). Accordingly, pursuant to KRS 532.080(6)(b), the maximum

penalty that Wynn could have received for either one of his two felony

convictions was twenty years’ imprisonment. A plain reading of the “sentencing




      2 The General Assembly has since amended KRS 532.110(1)(c) to specifically

not apply to consecutive sentences imposed pursuant to KRS 533.050(2)–(3).

                                        15
cap” statute, KRS 532.110(1)(c), might then dictate that the “aggregate” of

Wynn’s two consecutive terms of imprisonment “shall not exceed” twenty years.

      The conflict between these two provisions is apparent. One statute

purports to mandate that Wynn’s two sentences run consecutively regardless of

their length, while the other statute seems to require that the aggregate of

Wynn’s two sentences not exceed twenty years. This is not, however, the first

time this Court has examined the tension between KRS 533.060(3) and KRS

532.110(1)(c). Indeed, in Kimmel v. Commonwealth, 671 S.W.3d 230, 239 (Ky.

2023), this Court held that our mandate to “harmonize and give effect to”

conflicting statutes requires that “while sentences under KRS 533.060(3) must

be consecutive, the resulting total term of years cannot violate the maximum

aggregate sentence cap set forth in KRS 532.110(1)(c).” Accordingly, Wynn

would have this Court apply the holding of Kimmel to the facts of this case,

resulting in a conclusion that the Knox Circuit Court erred in ordering him to

serve two consecutive terms of imprisonment totaling twenty-seven years. The

facts of Kimmel, however, are materially distinguishable from the case at hand

insofar as the appellant in Kimmel elected to have his felony charges “tried

together,” whereas Wynn was not only convicted of his felony charges in two

separate proceedings, but he had also already been sentenced in one of those

proceedings prior to being convicted and sentenced in the other.

      In Kimmel, the appellant was initially charged with third-degree burglary

and theft by unlawful taking. 671 S.W.3d at 234. After he was released on

bond, the appellant was subsequently charged with additional counts of third-

                                       16
degree burglary, theft by unlawful taking, and being a first-degree persistent

felony offender. Id. The appellant thereafter elected to have all of those charges

“tried together” at a single trial. Id.

      Here, Wynn was initially charged with one count of possession of a

firearm by a convicted felon, one count of operating a motor vehicle while

under the influence, and one count of being a second-degree persistent felony

offender. Importantly, Wynn pled guilty to those charges, was released on

bond, and was then subsequently charged with one count of first-degree bail

jumping and one count of being a first-degree persistent felony offender. Wynn

was thereafter sentenced to a seven-year term of imprisonment resulting from

his initial criminal charges before he was tried for first-degree bail jumping.

Unlike the appellant in Kimmel, Wynn could not have elected to have his

multiple felony charges tried together because he had already pled guilty to

possession of a firearm by a convicted felon prior to being charged with first-

degree bail jumping. That distinction is crucial because the “sentencing cap”

statute, KRS 532.110(1)(c), “does not extend to sentences resulting from

previous cases,” i.e., those sentences resulting from a “previous indictment and

trial.” Johnson v. Commonwealth, 553 S.W.3d 213, 220 (Ky. 2018); Bryant v.

Commonwealth, No. 2023-SC-0218-MR, 2024 WL 3930042 (Ky. Aug. 22, 2024).

      In Johnson v. Commonwealth, the appellant was indicted on and

convicted of two counts of first-degree trafficking in a controlled substance, one

count of possession of a firearm by a convicted felon, and one count of being a

first-degree persistent felony offender. 553 S.W.3d at 215. The trial court then

                                          17
ordered the appellant to serve a twenty-year sentence that was to run

consecutively to a prior ten-year sentence the appellant had previously received

as the result of a trafficking conviction. Id. at 219. Importantly, this Court held

that the “sentencing cap” statute, KRS 532.110(1)(c), did not mandate that the

aggregate of the appellant’s two consecutive sentences be capped at the twenty-

year maximum, because it interpreted KRS 532.110(1)(c) not to apply to

sentences arising from separate indictments and trials. Id. at 220.

      Like the appellant in Johnson, Wynn had already been separately

indicted, convicted, and sentenced in case No. 21-CR-00068 prior to being

tried, convicted, and sentenced for first-degree bail jumping in case No. 22-CR-

00179. Therefore, our precedent would dictate that the “sentencing cap” of KRS

532.110(1)(c) did not require the trial court to fix Wynn’s penalty for first-

degree bail jumping at thirteen years of imprisonment, so as to keep his

“aggregate” punishment for both felony convictions below twenty years of

imprisonment. Any contrary interpretation of the General Assembly’s

“sentencing cap” statute would lead to an absurd result. Under a contrary

interpretation of KRS 532.110(1)(c), any criminal who was convicted of having

committed a Class D felony and was thereafter sentenced would be free to

commit any number of Class D felonies with the peace of mind of knowing that

he could only receive an aggregate prison sentence of, at most, twenty years.

This cannot be what the legislature intended when it enacted KRS

532.110(1)(c).




                                        18
      Accordingly, it is clear here that the trial court did not err in ordering

that Wynn serve a twenty-year sentence as a result of his first-degree bail

jumping charge. Pursuant to KRS 533.060(3), that twenty-year sentence was

required to run consecutively to any term of imprisonment that Wynn had been

ordered to serve as a result of his earlier convictions in No. 21-CR-00068.

                                 III.   CONCLUSION

      For the foregoing reasons, we affirm the judgment of the Knox Circuit

Court.

      All sitting. All concur.



COUNSEL FOR APPELLANT:

Molly Mattingly
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Russell M. Coleman
Kentucky Attorney General

Stephanie Lynne McKeehan
Assistant Attorney General




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