Vacatur “Wipes the Slate Clean”: De Novo Resentencing, Competency at the Time of Resentencing, and the KRS 532.110 “Yardstick” Cap

I. Introduction

This modified published decision addresses two recurring post-remand issues in Kentucky criminal practice: (1) the standard and timing for determining a defendant’s competency at resentencing under KRS 504.090 and KRS 504.060(5); and (2) the scope of a trial court’s resentencing authority—and the lawful ceiling for consecutive sentences—after an appellate vacatur and remand directing resentencing under KRS 532.110 and KRS 532.080.

The appellant, Thomas R. Moore, had pleaded guilty in 2018 to two Class D felony traffic offenses (fourth-degree DUI of drugs; second-degree driving on a DUI-suspended license while under the influence) and to being a second-degree persistent felony offender (PFO-2). The sentencing record later revealed an error: the trial court had improperly treated the PFO-2 finding as a standalone conviction with its own twenty-year term, rather than as an enhancement. In Commonwealth v. Moore, 664 S.W.3d 582 (Ky. 2023), the Supreme Court of Kentucky vacated and remanded for resentencing on the two Class D felonies “pursuant to KRS 532.110 and KRS 532.080.”

On remand, Moore’s presentation raised competency concerns, prompting renewed KCPC evaluations and competing expert opinions. The trial court ultimately found Moore competent and re-imposed an aggregate twenty-year term consistent with the plea agreement (two enhanced ten-year sentences run consecutively). Moore appealed, claiming (a) he was incompetent at resentencing, and (b) the re-imposed twenty-year term was illegal in light of the prior vacatur and sentencing limits.

II. Summary of the Opinion

• Competency: The Court held the trial court did not clearly err in finding Moore competent on the date of resentencing. Competency is assessed at the time of the proceeding, and substantial evidence—primarily Dr. Turns’s testimony—supported the finding.
• Sentence legality after vacatur: The Court held the re-imposed aggregate twenty-year sentence was lawful. The prior vacatur rendered the original sentence “null and void,” allowing de novo resentencing. The consecutive structure did not exceed the KRS 532.110(1)(c) aggregate cap, which uses KRS 532.080 only as a “yardstick,” without regard to the defendant’s specific PFO degree.

III. Analysis

A. Precedents Cited

1. Competency framework and standard of review

• Moody v. Commonwealth, 698 S.W.2d 530 (Ky. 1985): The Court relied on Moody for the statutory definition of “incompetency” (lack of capacity to appreciate proceedings or participate rationally), anchoring the analysis in KRS 504.060(5).
• Commonwealth v. Griffin, 622 S.W.2d 214 (Ky. 1981): Cited for the principle that a defendant’s competency includes the ability to participate rationally in the defense. The Court treated this as an important component, but not the exclusive lens through which competency is judged.
• Keeling v. Commonwealth, 381 S.W.3d 248 (Ky. 2012) and Chapman v. Commonwealth, 265 S.W.3d 156 (Ky. 2007): These cases supplied (i) the preponderance of the evidence burden for competency determinations and (ii) the appellate review framework: a competency finding is disturbed only if clearly erroneous (not supported by substantial evidence). Keeling also mattered substantively because it addressed temporally separate competency reports and upheld a competency finding despite psychosis—supporting the Court’s conclusion that conflicting expert opinions at different times do not, by themselves, invalidate a later competency finding.
• United States v. Branham, 97 F.3d 835 (6th Cir. 1996) and Bishop v. Caudill, 118 S.W.3d 159 (Ky. 2003): Cited to characterize competency as a factual finding and to emphasize the timing principle: competency pertains to the defendant’s mental state “at the time” of the proceeding in question.
• Alley v. Commonwealth, 160 S.W.3d 736 (Ky. 2005): Used to restate the operative competency test: “substantial capacity” to comprehend the nature and consequences of the proceeding and to participate rationally.

2. Resentencing after appellate vacatur; effect of vacatur

• Pepper v. United States, 562 U.S. 476 (2011): This was the Court’s primary authority for the proposition that vacating a sentence “wipe[s] the slate clean,” making the prior sentence a nullity and enabling the trial court on remand to “reconfigure the sentencing plan.” The Court used Pepper to reject Moore’s attempt to bind resentencing to the earlier (erroneous) judgment language that had run terms concurrently.
• Machniak v. Commonwealth, 351 S.W.3d 648 (Ky. 2011): Distinguished as irrelevant because the appeal did not concern a conflict between oral pronouncement and written judgment. Moore’s reliance on Machniak could not limit the trial court’s authority after a true vacatur and remand for resentencing.
• Commonwealth v. Moore, 664 S.W.3d 582 (Ky. 2023): The Court treated its own prior mandate as the controlling directive: it vacated the improper PFO-2 standalone sentence and remanded to resentence the two Class D felonies pursuant to KRS 532.110 and KRS 532.080. The current opinion frames that remand as authorizing de novo resentencing on those counts, constrained by statutory caps.

3. Consecutive-sentence cap and the PFO “yardstick” doctrine

• Castle v. Commonwealth, 411 S.W.3d 754 (Ky. 2013): Provided the modern articulation that KRS 532.080 is a “yardstick” for determining the maximum allowable aggregate for consecutive terms under KRS 532.110(1)(c), and that sentencing discretion is limited by that cap.
• Bedell v. Commonwealth, 870 S.W.2d 779 (Ky. 1993): Reinforced that the “yardstick” was not intended to incorporate other PFO-specific terms; only the maximum extended-term lengths are borrowed to measure the cap.
• Commonwealth v. Durham, 908 S.W.2d 119 (Ky. 1995): This was the central Kentucky precedent for the Court’s sentencing holding. It explained that for the cap calculation, the court looks to KRS 532.080(6)(b) (20-year maximum for Class C/D felonies in the extended-term framework) when using KRS 532.080 as a cap-measuring device, “without regard to whether the penalties for those offenses have been enhanced,” and without tying the cap to the defendant’s actual PFO degree. The Court emphasized the similarity: in Durham, two Class D felonies enhanced to ten years each were run consecutively for twenty years and upheld as lawful.
• Milner v. Commonwealth, 655 S.W.2d 31 (Ky. App. 1983): Quoted to reject “entwined” arguments about PFO degrees when the real issue is consecutive terms and the KRS 532.110(1)(c) ceiling. The Court noted Milner was cited approvingly in Durham, strengthening its persuasive and doctrinal force.

4. Procedural aside

• Nami Res. Co., LLC v. Asher Land & Min., Ltd., 554 S.W.3d 323 (Ky. 2018): Mentioned for the resemblance between RCr 10.26 and CR 61.02, in recounting Moore’s earlier pro se effort to attack the sentence as palpable error.
• Moore v. Commonwealth, No. 2019-CA-1549-MR, 2021 WL 3686070 (Ky. App. Aug. 21, 2021): Provided procedural history: the Court of Appeals’ palpable-error correction of the PFO-2 standalone sentence and its probation revocation concerns, later addressed by the Supreme Court in Commonwealth v. Moore.

B. Legal Reasoning

1. Competency at resentencing: timing, evidence, and deference

The Court’s reasoning turned on when competency must exist and what evidence suffices to support the trial court’s finding. Relying on Bishop v. Caudill, the Court emphasized competency is evaluated at the time of the proceeding—here, February 2, 2024.

Although Dr. Sparks (July 2023) opined Moore was incompetent due to impaired rational decision-making (notably religious delusional fixation undermining communication and strategy), Dr. Turns (February 2024) opined Moore was competent after treatment, observed no psychosis during evaluation, and testified that Moore could relate to counsel and participate rationally. The Court treated the conflicting opinions as time-bound rather than logically irreconcilable: changes in treatment and presentation can change competency status, and Keeling v. Commonwealth supports upholding a competency finding even in the presence of psychosis and multiple reports.

Moore argued competency could not be found unless the Commonwealth proved continued medication compliance after KCPC, especially because the county jail could not forcibly medicate. The Court rejected this as speculative on the record before the trial court: nothing at the February 2024 hearing showed Moore had become non-compliant post-discharge. The Court also pointed to Moore’s improved courtroom demeanor (no delusional interruptions; respectful engagement), reinforcing the trial court’s ability to credit Dr. Turns’s in-time assessment.

Finally, the Court addressed Moore’s point that rational participation is required. It agreed that rational participation is part of the statutory definition, but endorsed the trial court’s view that this resentencing was “a technical correction” on remand and that Moore’s speaking was not “necessary” to effectuate that correction. Importantly, the Court did not hold defendants lack allocution rights; rather, it treated the competency question as satisfied because substantial evidence supported that Moore had capacity to understand and participate rationally on the resentencing date.

2. De novo resentencing after vacatur: the slate-clean principle and mandate compliance

Moore claimed the resentencing court could not re-impose an aggregate twenty-year term because the vacated judgment had stated all sentences ran concurrently “for a total of twenty years.” The Court rejected that framing as misunderstanding the effect of vacatur.

Invoking Pepper v. United States, the Court stated that vacatur “wipe[s] the slate clean,” enabling the trial court to reconfigure the sentencing plan because altering one piece of the sentencing calculus may undermine the original intent. Here, the original sentence was vacated because the trial court improperly imposed a PFO-2 sentence as a standalone conviction, and the Supreme Court’s earlier decision required resentencing on the two underlying Class D felonies pursuant to KRS 532.110 and KRS 532.080.

The Court then measured the trial court’s new judgment against the mandate: the amended judgment imposed three years on each Class D felony, enhanced each to ten years by the PFO-2 finding, and ran the enhanced ten-year terms consecutively—precisely the structure contemplated by the plea agreement and permitted by the remand.

Moore’s reliance on Machniak v. Commonwealth failed because this was not a written-versus-oral discrepancy case; it was a vacatur-and-remand resentencing, where the prior sentence no longer had operative legal force.

3. The consecutive-sentence cap: why twenty years was lawful

Although Moore did not squarely brief the KRS 532.110(1)(c) cap, the Court reiterated (citing its own earlier Commonwealth v. Moore) that appellate briefing is not required to obtain relief from an illegal sentence, and it independently ensured the total did not exceed the statutory ceiling.

The Court applied the “yardstick” doctrine from Castle v. Commonwealth and Bedell v. Commonwealth: when using KRS 532.080 to measure the maximum permissible aggregate for consecutive sentences, courts reference the maximum extended terms authorized by the statute, not the defendant’s PFO degree or enhancement mechanics.

Commonwealth v. Durham supplied the decisive blueprint. In that similar scenario—two Class D felonies plus PFO-2, each underlying sentence enhanced to ten years and run consecutively—the Supreme Court held the aggregate twenty-year term was lawful because the cap-measuring reference point for Class D felonies is the twenty-year extended-term maximum in KRS 532.080(6)(b), not the ten-year maximum applicable to a PFO-2 enhancement under other provisions. The Court again emphasized that tying the aggregate cap to PFO degree would produce an “absurd result” contrary to legislative intent (as explained in Durham and echoed through Milner v. Commonwealth).

Applying that settled construction, Moore’s consecutive enhanced terms totaling twenty years fell within the KRS 532.110(1)(c) ceiling for Class D felonies (measured by the twenty-year “yardstick”), and therefore were not illegal.

C. Impact

• Clarifies resentencing posture after vacatur: Trial courts and litigants are reminded that once an appellate court vacates a sentence and remands to resentence, the prior sentencing configuration does not bind the trial court; resentencing is effectively de novo within the mandate and statutory limits, consistent with Pepper v. United States.
• Reinforces “competency at the time” and deference: The decision underscores that competency is assessed at the time of the proceeding and that trial courts receive substantial deference where the finding is supported by substantial evidence, even when earlier evaluations differed.
• Strengthens the KRS 532.110 “yardstick” line for Class D felonies: By closely tracking Commonwealth v. Durham, the Court reaffirms that the aggregate consecutive cap is measured by the maximum extended term in KRS 532.080(6)(b) for Class C/D felonies—without regard to the defendant’s adjudicated PFO degree—thereby insulating twenty-year consecutive aggregates in common two–Class D scenarios from mischaracterization as illegal.
• Practical effect on post-remand litigation strategy: Defendants challenging competency at resentencing must build a record showing present incapacity (not merely historical diagnosis or risk of noncompliance). Likewise, defendants challenging consecutive totals must confront the “yardstick” framework rather than relying on PFO-degree enhancement maxima.

IV. Complex Concepts Simplified

• Competency vs. mental illness: A diagnosis (even psychosis) does not automatically mean incompetency. The legal question is functional: can the defendant understand what is happening and work rationally with counsel at the time of the proceeding?
• “Clearly erroneous” / “substantial evidence” review: Appellate courts do not retry competency. If the trial judge’s finding is supported by enough credible evidence that a reasonable judge could reach that conclusion, it stands.
• Vacatur: When a sentence is “vacated,” it is treated as if it never legally existed. The court resentences anew, guided by the appellate mandate and statutes.
• PFO enhancement: A persistent felony offender finding does not create a separate crime; it increases (enhances) the penalty for the underlying conviction(s).
• Concurrent vs. consecutive: Concurrent sentences are served at the same time; consecutive sentences are stacked back-to-back.
• The “yardstick” concept under KRS 532.110(1)(c): The PFO statute (KRS 532.080) is used only to measure the maximum allowed total consecutive time (the ceiling). It is not used to import all PFO enhancement rules into the cap calculation.

V. Conclusion

The Supreme Court of Kentucky affirmed Moore’s post-remand resentencing on two core grounds. First, the trial court had substantial evidence—principally Dr. Turns’s contemporaneous evaluation—to find Moore competent on the date of resentencing, despite earlier contrary opinions and despite medication-compliance concerns not substantiated on the resentencing record. Second, the re-imposed aggregate twenty-year sentence was lawful: vacatur rendered the prior sentence a nullity and authorized de novo resentencing, and the consecutive structure complied with KRS 532.110(1)(c) as measured by the KRS 532.080 “yardstick,” consistent with Commonwealth v. Durham, Castle v. Commonwealth, Bedell v. Commonwealth, and Milner v. Commonwealth.