JAMES MULLINS v. COMMONWEALTH OF KENTUCKY (2013)

NOT TO BE PUBLISHED

VACATING IN PARTAND REMANDING

James Mullins appeals from a Rowan Circuit Court judgment imposing a sentence of three years for receiving stolen property valued between $500 and $10,000, enhanced to five years for being a persistent felony offender in the second degree (PFO 2).

In September 2009, Mullins entered a plea of guilty to first-degree possession of a controlled substance.   He received a sentence of four years, but was placed on diversion for five years.

While he was on diversion, he was indicted for receiving stolen property valued between $500 and $10,000.   He was also charged with PFO 2, based on the 2009 conviction for possession.

Mullins entered a plea of guilty to the charges conditioned on his right to appeal whether a case that was currently diverted could be used as the basis for a PFO 2 charge on a new indictment.   His appeal was held in abeyance until the Kentucky Supreme Court rendered an opinion in which it held that “a conviction for which a defendant is currently on diversion cannot be used to indict that defendant as a PFO 2 when he commits a subsequent felony offense.”  Commonwealth v. Derringer, 386 S.W.3d 123, 132 (Ky.2012).   Under these circumstances, the Commonwealth has conceded that Mullins's indictment for PFO 2 was improper, and he is entitled to relief.

Accordingly, we reverse the conviction and sentence of PFO 2 and remand the case for further proceedings in accordance with this opinion and with Derringer.

ALL CONCUR.

STUMBO, JUDGE: