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March 6, 2026 Get Citation Alerts Download PDF Add Note

Michael D. Mallard v. Commonwealth of Kentucky

Court of Appeals of Kentucky

• Citations: None known
• Docket Number: 2024-CA-0751
• Precedential Status: Non-Precedential
• Judges: Taylor

• Disposition: OPINION AFFIRMING

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (9.4K)

• PDF

Disposition

OPINION AFFIRMING

Combined Opinion

                        by [Jeff S. Taylor](https://www.courtlistener.com/person/7344/jeff-s-taylor/)

RENDERED: MARCH 6, 2026; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2024-CA-0751-MR

MICHAEL D. MALLARD APPELLANT

APPEAL FROM HENDERSON CIRCUIT COURT
v. HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NOS. 96-CR-00038, 96-CR-00055, 96-CR-00114,
97-CR-00048, 01-CR-00130, 04-CR-00320, 04-CR-00321,
AND 22-CR-00197

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
AFFIRMING

---

BEFORE: ECKERLE, A. JONES, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Michael D. Mallard appeals from a June 6, 2024, Order of the

Henderson Circuit Court which denied his motion for relief pursuant to Kentucky

Rules of Civil Procedure (CR) 60.02(f), seeking to amend the final judgment in his

case and reduce his prison sentence from forty-five years to twenty years. For the
reasons stated, we affirm the Henderson Circuit Court’s denial of Mallard’s CR

60.02 motion for relief.

BACKGROUND

Mallard has had a substantial criminal history in our court system

since at least 1996. Relevant to this appeal, the circuit court summarized his

various convictions in Henderson County in the court’s June 6, 2024, order

denying Mallard’s motion for relief:

To summarize, in August of 1996 the Court sentenced
Mallard to five years in the three 1996 cases; in May of
1997, the Court sentenced him to twenty years in 97-CR-
048; in November of 2001, it sentenced him to ten years
in 01-CR-130; in October of 2005, it sentenced him to
eight years in the two 2004 cases; and finally in July of
2022, it sentenced him to two years in 22-CR-197. All of
these sentences were imposed pursuant to guilty pleas.
The sentences are being served consecutively for a total
sentence of forty-three years.[1]

Record at 90 (Action No. 22-CR-00197).

As concerns Mallard’s most recent conviction in 2022, he pleaded

guilty to possession of a controlled substance (methamphetamine) first degree, and

operating a motor vehicle under the influence of a controlled substance. He was

sentenced to serve two years and one day in prison. In the court’s July 22, 2022,

Judgment of Conviction, the court stated:

1
The June 6, 2024, Order references that the total consecutive sentences to be served is forty-
three years, which appears to be a clerical error.

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It is further ORDERED and ADJUDGED that the
sentence imposed upon the defendant under this
indictment be served consecutively to any other sentence
that has been heretofore imposed.

Record at 55.

This brought his total aggregate sentence for consecutive years of

imprisonment to forty-five, based on the previous convictions and sentences

summarized above.

On May 20, 2024, Mallard filed a pro se motion pursuant to CR

60.02(f), for relief from the judgment on grounds that the sentence imposed by the

court could not exceed the aggregate sentencing cap established in Kentucky

Revised Statutes (KRS) 532.110(1)(c). At the time Mallard was sentenced, KRS

532.110(1)(c) stated, in relevant part, 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.” Mallard argued that his maximum

sentence could not exceed twenty years under KRS 532.080(6)(b).

Mallard’s primary argument below and in this appeal relies on the

Supreme Court’s recent decision in Kimmel v. Commonwealth, 671 S.W.3d 230

(Ky. 2023), which reviewed a conflict between KRS 532.110(1)(c) and KRS

533.060(3), and reduced the sentence in that case as a result of the statutory

sentencing cap. The Supreme Court held: “To harmonize and give effect to both

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statutes, we conclude 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).” Id. at 239. Mallard

argued that since his sentencing also involved a conflict between KRS

532.110(1)(c) and 532.080(6)(b), Kimmel required that his illegal sentence be

reduced in conformance with the statutory cap of twenty years. For the reasons

stated, we disagree.

By Order entered June 6, 2024, the Henderson Circuit Court

concluded that Mallard’s reliance on Kimmel was misplaced, holding that Kimmel

only applied the maximum aggregate sentence to offenses committed while out on

bond awaiting trial for the first offense and did not apply to sentences resulting

from prior case convictions. The CR 60.02(f) motion was denied. This appeal

followed.

STANDARD OF REVIEW

“The standard of review of an appeal involving a CR 60.02 motion is

whether the trial court abused its discretion.” White v. Commonwealth, 32 S.W.3d

83, 86 (Ky. App. 2000). Relief from judgment is available under CR 60.02(f) for

any reason of an extraordinary nature justifying relief, and a motion on that ground

must be made within a reasonable time. Stoker v. Commonwealth, 289 S.W.3d

592, 596 (Ky. App. 2009). “[B]ecause the trial court and appellate court have

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inherent authority to correct an unlawful sentence at any time,” one mechanism a

defendant may use to raise a sentencing issue is a CR 60.02 motion.

Commonwealth v. Moore, 664 S.W.3d 582, 590 (Ky. 2023). Even if agreed to by

the parties through a plea agreement, a sentence that is outside the limits

established by statutes is still an illegal sentence which cannot stand uncorrected.

Phon v. Commonwealth, 545 S.W.3d 284, 302 (Ky. 2018). Our review proceeds

accordingly.

ANALYSIS

Based on our review of the record and applicable law, we believe

Mallard’s reliance upon Kimmel, 671 S.W.3d 230, is misplaced and is clearly

distinguishable from the underlying facts of this case. First, Kimmel involved the

application of KRS 533.060(3), not KRS 532.080(6)(b) which Mallard asserts is

applicable to his case. More importantly and relevant to this appeal, in Kimmel, all

of his various felony charges were tried together, whereas Mallard committed new

offenses while being on parole and all of his previous cases were resolved prior to

his last plea in the Henderson Circuit Court in 2022.

In Blackburn v. Commonwealth, 394 S.W.3d 395, 401 (Ky. 2011), the

Supreme Court held that subsequent convictions cannot run concurrently with a

paroled offense sentence. And, controlling for this case, the Supreme Court has

held that the statutory cap set out in KRS 532.110(1)(c) does not apply to sentences

-5-
from previous cases. Johnson v. Commonwealth, 553 S.W.3d 213, 219-20 (Ky.

2018).

In Johnson, the trial court ordered that defendant’s sentence would

run consecutively to all other sentences. Because Johnson had a prior conviction

in which he was sentenced to ten years, the aggregate term of both sentences

exceeded twenty years. Id. However, the Supreme Court expressly stated that

KRS 532.110(1)(c) did not prohibit running the defendant’s sentences

consecutively. Johnson, 553 S.W.3d at 219-20. The Court held that KRS

532.110(1)(c), did not mandate that the aggregate of defendant’s two consecutive

sentences be capped at the twenty-year maximum, holding that KRS 532.110(1)(c)

did not apply to sentences arising from separate indictments and trials. Johnson,

553 S.W.3d at 219-20.

In this case, the convictions and sentences of Mallard in the sundry

Henderson County cases had been finalized when Mallard’s guilty plea was

entered by the Henderson Circuit Court on July 22, 2022. Accordingly, the

Henderson Circuit Court correctly determined that the sentence reduction set out in

Kimmel was not applicable to Mallard’s sentence. We agree that the sentencing

cap of KRS 532.110(1)(c) is not applicable to limit the total term of years when the

-6-
aggregate sentence under consideration results from separate proceedings and

convictions. Johnson, 553 S.W.3d at 219-20.

For the foregoing reasons, the June 6, 2024, Order of the Henderson

Circuit Court denying Mallard’s motion for relief is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Andrea Reed Russell Coleman
Assistant Public Advocate Attorney General of Kentucky
Department of Public Advocacy
Frankfort, Kentucky Christopher Henry
Assistant Solicitor General
Office of the Solicitor General
Frankfort, Kentucky

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