KRS 532.110’s Aggregate Cap Controls PFO‑2–Enhanced Class D Felonies; Competency for Resentencing Measured at the Time of Resentencing

KRS 532.110’s Aggregate Cap Controls PFO‑2–Enhanced Class D Felonies; Competency for Resentencing Measured at the Time of Resentencing

Introduction

In Thomas R. Moore v. Commonwealth of Kentucky (Supreme Court of Kentucky, Oct. 23, 2025), the Court addressed two discrete questions that frequently recur in Kentucky criminal practice:

  • Competency at resentencing: When and how must a trial court assess competency before imposing sentence, especially where competence depends on antipsychotic medication.
  • Legality of aggregate terms after persistent-felony-offender (PFO‑2) enhancement: Whether a trial court may impose a 20-year aggregate term for two PFO‑2–enhanced Class D felonies.

The case arises from Moore’s 2018 guilty plea to fourth-offense DUI (Class D felony), second-degree driving on a DUI-suspended license while under the influence (Class D felony), and an amended enhancement as a second-degree persistent felony offender (PFO‑2). After earlier appellate proceedings vacated an illegal sentence that treated PFO‑2 as a stand-alone conviction, the trial court—on remand—again imposed 20 years. Moore appealed as a matter of right (Ky. Const. § 110(2)(b)), arguing (1) he was incompetent to be resentenced and (2) the 20-year term is unlawful.

The Supreme Court affirmed the competency determination but vacated the sentence, holding the aggregate cannot exceed 10 years under KRS 532.110(1)(c) when two Class D felonies are enhanced to Class C by PFO‑2. The Court remanded for imposition of a lawful sentence.

Note: This is a “Not to be Published” memorandum opinion under RAP 40(D). It is not binding precedent but may be cited for consideration where no published opinion adequately addresses the issue. Its reasoning, however, is anchored in published authority and a recent Supreme Court decision, Commonwealth v. Strunk (Aug. 14, 2025).

Summary of the Opinion

  • Competency: Substantial evidence supported the trial court’s finding that Moore was competent on the date of resentencing (Feb. 2, 2024), despite an earlier (July 2023) incompetency assessment. Competency is determined at the time of the proceeding. The record showed restored competency following treatment, including antipsychotic medication, and no evidence of post-discharge noncompliance that would undermine competence at resentencing.
  • Sentence Legality: The 20-year aggregate term for two PFO‑2–enhanced Class D felonies is illegal. Under KRS 532.110(1)(c) and KRS 532.080(5), when Class D felonies are enhanced to Class C, the aggregate maximum of consecutive sentences cannot exceed the longest enhanced maximum for the highest class at issue—here, 10 years. The Court vacated the 20-year term and remanded for resentencing to a lawful aggregate not exceeding 10 years.

Detailed Analysis

Precedents Cited and How They Shape the Decision

  • Competency authorities:
    • Dusky v. United States, 362 U.S. 402 (1960): Benchmarks competency as the present ability to consult with counsel with rational understanding and a factual understanding of the proceedings.
    • KRS 504.060(5) and KRS 504.090: Define incompetency and bar sentencing so long as incompetency continues.
    • Bishop v. Caudill, 118 S.W.3d 159, 162 (Ky. 2003): Competency is assessed at the time of trial (or relevant proceeding).
    • Alley v. Commonwealth, 160 S.W.3d 736, 739 (Ky. 2005); Keeling v. Commonwealth, 381 S.W.3d 248, 262 (Ky. 2012): Competency determinations rest on a preponderance standard, are factual in nature, and are reviewed for clear error; substantial evidence supports them.
    • Moody v. Commonwealth, 698 S.W.2d 530, 532–33 (Ky. 1985): Once competence on the date of sentencing is established, sentencing may proceed.
    • Pate v. Commonwealth, 769 S.W.2d 46 (Ky. 1989); United States v. Branham, 97 F.3d 835, 855 (6th Cir. 1996): Burden and standard for disturbing competency findings; the defense bears the burden to show incompetence.
  • Sentencing authorities:
    • KRS 532.060(2)(d), (2)(c): Unenhanced Class D felonies carry 1–5 years; Class C felonies carry 5–10 years.
    • KRS 532.080(5): PFO‑2 enhancement moves a Class D felony to Class C range (5–10 years).
    • KRS 532.110(1)(c): When imposing consecutive indeterminate terms, the aggregate maximum cannot exceed the longest extended term authorized by KRS 532.080 for the highest class of crime involved.
    • Commonwealth v. Strunk, ___ S.W.3d ___, 2025 WL 2388141 (Ky. Aug. 14, 2025): The aggregate cap in KRS 532.110(1)(c) applies even to PFO‑enhanced sentences; trial courts cannot exceed the maximum extended term for the highest class involved when stacking consecutive sentences.
    • Goldsmith v. Commonwealth, 363 S.W.3d 330, 334 (Ky. 2012): Articulates the aggregate-cap rule’s mechanics under KRS 532.110(1)(c).
    • Blackburn v. Commonwealth, 394 S.W.3d 395, 400–01 (Ky. 2011): KRS 533.060 does not alter KRS 532.110’s aggregate cap; for enhanced Class D felonies, the aggregate cannot exceed 10 years.
    • Cummings v. Commonwealth, 226 S.W.3d 62, 68 (Ky. 2007): Remand is required to impose a sentence not exceeding the statutory maximum.
    • Phon v. Commonwealth, 545 S.W.3d 284, 304, 310 (Ky. 2018): Sentences beyond statutory limits are unlawful and void; on remand, impose the highest lawful sentence.
    • Spicer v. Commonwealth, 442 S.W.3d 26, 35 (Ky. 2014): Appellate courts may correct illegal sentences even absent an objection.
    • Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999): Abuse-of-discretion standard; illegality is inherently an abuse of discretion.
    • McClanahan v. Commonwealth, 308 S.W.3d 694, 701 (Ky. 2010): Plea agreements are contractual, but they cannot authorize illegal sentences.
    • Machniak v. Commonwealth, 351 S.W.3d 648, 652 (Ky. 2011); RCr 10.10: Written judgments control over oral pronouncements; clerical errors may be corrected, but judicial errors in illegal sentences require resentencing.

Legal Reasoning

1) Competency at the time of resentencing

The governing test derives from KRS 504.060(5) and Dusky: the defendant must have sufficient present ability to appreciate the nature and consequences of the proceedings and to participate rationally in his defense. KRS 504.090 bars sentencing “so long as the incompetency continues,” underscoring that competency is time-specific. Consistent with Bishop, the focus is the defendant’s mental state on the actual date of the proceeding—in this case, resentencing.

The record showed a trajectory from initial concerns (unusual, religiously themed statements in March 2023; Dr. Sparks’s July 2023 diagnosis of an unspecified psychotic disorder and incompetency) to later restoration (forcible administration of Abilify at KCPC; Dr. Turns’s Feb. 2024 findings that Moore was cooperative, lucid, non-delusional during evaluation, understood the proceedings, and could rationally relate to counsel). That evidence constituted substantial support for the trial court’s competency finding as of Feb. 2, 2024. Nothing in the record at the competency hearing demonstrated active noncompliance with medication post-discharge that would negate competence on the resentencing date.

Moore argued that “rational participation” was indispensable because he wanted to speak at resentencing and feared his condition would impair allocution or strategy. The Court recognized that the competency statute is not “singularly restricted to one’s rational participation” and, on these facts, agreed with the trial court that resentencing was a technical correction driven by legal constraints—though Moore had the opportunity to speak, his participation was not outcome-determinative. In any event, the Court credited Dr. Turns’s testimony that Moore could, in fact, rationally communicate with counsel and appreciate the proceedings.

Standard of review drove the outcome: competency is a factual determination reviewed for clear error. On this record, substantial evidence supported competence on the resentencing date; the finding therefore stood.

2) Illegality of the 20-year aggregate and the KRS 532.110 cap

The sentencing question turned on the interplay of three statutes: KRS 532.060 (authorized terms), KRS 532.080 (PFO enhancements), and KRS 532.110 (consecutive-sentencing aggregation). Moore’s two underlying offenses were Class D felonies (each 1–5 years unenhanced), but his PFO‑2 status under KRS 532.080(5) elevated each to the Class C range (5–10 years). The trial court imposed 10 years on each and ran them consecutively for a total of 20 years.

That stacking collides with KRS 532.110(1)(c), which caps the aggregate maximum of consecutive indeterminate terms at “the longest extended term authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed.” Because PFO‑2 elevates Moore’s Class D felonies to the Class C range, the longest applicable enhanced maximum is 10 years—not 20. The Court’s recent decision in Commonwealth v. Strunk confirms how the cap operates: the aggregate cannot exceed the highest enhanced maximum for the highest class implicated (Strunk involved Class C offenses enhanced to Class B, yielding a 20-year cap; here, Class D offenses enhanced to Class C yield a 10-year cap).

Two additional principles sealed the result:

  • Illegality is per se an abuse of discretion. Even if a plea agreement contemplated a 20-year total, courts cannot enforce illegal terms (McClanahan; Phon; English).
  • Remedial scope on remand. When illegality arises from excessive length, resentencing is limited to the highest lawful sentence (Phon; applied here to cap Moore’s aggregate at 10 years).

The Court therefore vacated Moore’s 20-year term and remanded for resentencing not to exceed 10 years in the aggregate, “pursuant to KRS 532.110 and KRS 532.080,” consistent with its earlier 2023 directive.

Impact and Practical Implications

  • Competency at resentencing—present-tense focus:
    • Trial courts should assess competence as of the hearing date, even where earlier reports found incompetence. Restoration through treatment (including antipsychotics) can support a renewed finding of competence.
    • Absent record evidence of active noncompliance post-discharge, courts need not delay sentencing to obtain proof of ongoing medication adherence. Counsel seeking delay should be prepared with concrete evidence of deterioration or noncompliance.
    • Resentencing that is largely a “technical correction” does not erase competency requirements, but the necessity of robust allocution-driven participation may be less consequential where law fixes the outcome (subject to the cap).
  • Sentencing architecture—hard cap on consecutive terms after PFO‑2 enhancement:
    • Two Class D felonies enhanced by PFO‑2 to Class C cannot produce an aggregate consecutive term exceeding 10 years. Any attempt to stack beyond that is unlawful.
    • Plea negotiations must reflect the cap. Prosecutors and defense counsel should not promise or accept illegal totals. Courts should reject plea terms that would exceed the KRS 532.110 cap.
    • On remand from an illegal sentence, the trial court may restructure individual counts and concurrency versus consecutivity, but the total maximum cannot exceed the cap (e.g., 5+5 consecutive = 10; 10+10 must be concurrent to remain within the cap).
    • PFO is an enhancement, not a separate offense. Imposing a stand-alone term for PFO is error.
  • Precedential posture: Though this opinion is unpublished under RAP 40(D), its sentencing analysis closely tracks published law (Strunk, Goldsmith, Blackburn, Cummings, Phon) and offers a straightforward application in the common PFO‑2/Class D context. It provides persuasive guidance, especially where published decisions have not squarely addressed the same factual configuration.

Complex Concepts Simplified

  • Competency to be sentenced: A defendant must, at the time of sentencing, (a) understand the nature and consequences of what’s happening and (b) be able to rationally assist counsel. If either capacity is lacking due to a mental condition, sentencing is barred until competency is restored.
  • KCPC evaluations: Kentucky Correctional Psychiatric Center conducts court-ordered forensic evaluations. Findings can change over time; courts rely on the most current, substantial evidence.
  • Substantial evidence / clear error: Appellate courts defer to trial judges’ factual findings (like competency) unless the record lacks enough credible evidence to support them.
  • PFO‑2 enhancement: Second-degree persistent felony offender status increases the penalty class. For a Class D conviction, PFO‑2 enhances the range to the Class C range (5–10 years).
  • Consecutive vs. concurrent: Consecutive sentences stack; concurrent sentences run at the same time. Even when stacking is allowed, KRS 532.110 imposes a cap on the total maximum term.
  • KRS 532.110(1)(c) aggregate cap: The sum of consecutive sentences cannot exceed the longest PFO‑enhanced maximum term applicable to the highest class of felony among the counts being sentenced together.
  • Illegal sentence: Any sentence beyond statutory limits is unlawful and void; it must be corrected, regardless of plea terms or lack of objection.
  • Clerical vs. judicial error: Clerical mistakes in a judgment can be corrected at any time. Substantive sentencing errors (like illegal totals) require resentencing under the correct law.

Conclusion

The Supreme Court’s decision in Moore clarifies two important points for Kentucky practitioners and trial courts:

  • Competency is determined as of the resentencing date. A prior incompetency finding does not bar sentencing if substantial evidence shows restoration by the time of the proceeding. The Court will affirm competency determinations that are grounded in current, credible forensic evaluations and supported by the defendant’s in-court presentation.
  • KRS 532.110’s aggregate cap strictly limits PFO‑2–enhanced stacking. When Class D felonies are enhanced to the Class C range by PFO‑2, the aggregate maximum of consecutive terms cannot exceed 10 years. Plea agreements and trial-court sentences must conform to that cap. Courts encountering excessive or PFO-as-stand-alone terms must correct them; illegal sentences are per se an abuse of discretion.

Although unpublished, Moore’s reasoning harmonizes with—and applies—the Supreme Court’s published sentencing framework, especially Strunk, Goldsmith, Blackburn, and Phon. The opinion provides a practical roadmap for handling competency at resentencing and for crafting lawful sentences in PFO‑2 cases involving multiple Class D felonies. On remand, Moore must be resentenced to a lawful aggregate not exceeding 10 years.

Case Details

Year: 2025
Court: Supreme Court of Kentucky

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