RENDERED: JUNE 28, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-1302-MR

LEONARD W. DAY APPELLANT 

v. 

APPEAL FROM BOONE CIRCUIT COURT

HONORABLE RICHARD A. BRUEGGEMANN, JUDGE

ACTION NO. 02-CR-00273

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND LAMBERT, JUDGES.

COMBS, JUDGE: Appellant, Leonard William Day (Day), pro se, appeals from 

an Order of the Boone Circuit Court denying his motion to suspend further 

execution of his final sentence and to modify its status from consecutive to 

concurrent. After our review, we affirm.

 Day was convicted of complicity in the savage killing of his former 

girlfriend. The underlying facts are set forth in the direct appeal affirming Day’s 
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convictions, Day v. Commonwealth, No. 2004-SC-000039-MR, 2006 WL 

2707960, (Ky. Sep. 21, 2006), which we recount as follows:

Appellant’s conviction arose from charges brought 

against him for the murder of his former girlfriend, Tina 

Rae Stevens, whose skeletal remains were found in 

Boone County on April 10, 2000. . . .

. . . 

Several former cellmates of Appellant testified that 

he admitted to having a role in the killing and that he 

described the event in detail. One cellmate said that 

Appellant claimed Hueitt[1]found him and Stevens 

together, confronted them, and attacked Stevens, hitting 

her in the head several times and cutting her throat with a 

knife. Stevens fell down and Hueitt continued arguing 

with Appellant. Stevens was bleeding but still alive at 

this point, but Appellant claimed that she had suffered a 

fatal wound. He then “finished” the job “out of 

compassion” by stabbing Stevens in the back of skull 

with the knife. They then cut Stevens’s head and fingers 

off, put the body in a clothes bag, and dumped it by the 

river. Another cellmate said that Appellant claimed 

Hueitt did everything. A third cellmate overheard 

Appellant say, “She didn’t do it right and I had to finish 

her off,” and that no one would care about the victim 

because she was a prostitute.

. . . 

The jury found Appellant guilty of complicity to 

murder and tampering with physical evidence, and of 

being a first-degree persistent felony offender (PFO). He 

was sentenced to thirty years for the murder and five 

years for tampering with physical evidence, enhanced to 

twenty for the PFO, to be served consecutively for a total 

1 Hueitt was Day’s girlfriend at the time of Stevens’s murder.
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of fifty years. 

Id. at *1-3.

In 2006, Day moved the trial court to vacate his convictions under 

CR2 60.02 and RCr3 11.42 based upon alleged ineffective assistance of counsel and 

actual innocence. Following an evidentiary hearing, the trial court denied Day’s 

motion. This Court affirmed that denial in Day v. Commonwealth, Nos. 2010-CA000315-MR, 2010-CA-001188-MR, 2012 WL 3136666 (Ky. App. Aug. 3, 2012).

On September 14, 2022, Day filed a “motion to suspend further 

execution of final sentence and modify said sentence of consecutive to 

concurrent,” the subject of this appeal. Day argued that the offenses with which he 

was charged actually constituted one continuous crime -- albeit charged in two 

counts. Day acknowledged that he did not have a good legal argument. However, 

he contended that there was never any consideration given to a concurrent sentence 

and that his trial attorney did not attempt to present any mitigating factors at 

sentencing.4

2 Kentucky Rules of Civil Procedure.

3 Kentucky Rules of Criminal Procedure.

4 Day appears to have abandoned this apparent RCr 11.42 argument on appeal.
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On April 27, 2023 the trial court entered an Order5 denying Day’s

motion as follows in relevant part:

Defendant asks the Court to modify his sentences 

to run concurrently . . . . 

. . . 

The Commonwealth responded by noting the 

Defendant has already sought relief pursuant to RCr 

11.42 when he filed a Motion in 2008 that was ultimately 

overruled following an evidentiary hearing. As to 

Defendant’s argument that the offenses committed were 

one continuous crime, the Commonwealth asserts the 

same fails the test as set forth in Blockburger v. United 

States, 284 U.S. 299 (1932) and as codified in KRS[6]

505.020. In light of the foregoing, the Commonwealth 

argues Defendant is not entitled to relief. The Court 

agrees.

. . . 

. . . The Defendant has already fully litigated an RCr 

11.42 in this matter. Further, by Defendant’s own 

concession, his argument made under KRS 532.110 is 

not supported by law. Therefore, the Court finds 

Defendant is not entitled to the relief sought.

Day appealed this Order.

The standard governing our review is abuse of discretion. 

Commonwealth v. Moore, 664 S.W.3d 582 (Ky. 2023). Day contends that the trial 

5 The Order was deemed effective as of September 7, 2023, by nunc pro tunc Order entered that 

date.

6 Kentucky Revised Statutes.
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court erred by failing to merge his convictions for complicity to murder and 

tampering with physical evidence “because the two offenses were simultaneously 

committed in [a] single course of conduct and a single state of mind.” Day further 

contends that Blockberger is not applicable and that his previous post-conviction 

challenges did not bar the circuit court from addressing his claim of an illegal 

sentence. 

KRS 505.020 is a codification of the rule set down in 

Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 

180, 76 L. Ed. 2d 306 (1932), which case states:

The applicable rule is that where the same 

act or transaction constitutes a violation of 

two distinct statutory provisions, the test to 

be applied to determine whether there are 

two offenses or only one is whether each 

provision requires proof of a fact which the 

other does not.

Alexander v. Commonwealth, 766 S.W.2d 631, 632 (Ky. 1988). In relevant part, 

KRS 505.020 provides: 

(1) When a single course of conduct of a defendant may 

establish the commission of more than one (1) offense, 

he may be prosecuted for each such offense. He may not, 

however, be convicted of more than one (1) offense 

when:

. . . 

(c) The offense is designed to prohibit a continuing 

course of conduct and the defendant’s course of 

conduct was uninterrupted by legal process, unless 
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the law expressly provides that specific periods of 

such conduct constitute separate offenses.

“KRS 502.020(1)(c) is not designed to prevent multiple convictions of different 

offenses arising from a single course of conduct.” Biederman v. Commonwealth, 

434 S.W.3d 40, 44 (Ky. 2014). 

We agree with the Commonwealth that KRS 502.020(1)(c) is 

inapplicable to Day’s case because he was convicted of two separate crimes. 

Day is correct that “the mode of attack or time when the attack is 

brought are immaterial when the issue is an illegal sentence.” Moore, supra, at 

590. However, Day’s sentence is valid and the trial court did not abuse its 

discretion in denying Day’s motion. KRS 532.110(1) (“When multiple sentences 

of imprisonment are imposed on a defendant for more than one (1) crime . . . the 

multiple sentences shall run concurrently or consecutively as the court shall 

determine at the time of sentence[.]”). We find no error. 

We affirm the Order of the Boone Circuit Court denying Day’s 

motion to suspend further execution of final sentence and to modify that sentence 

of consecutive to concurrent.

ALL CONCUR.
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BRIEF FOR APPELLANT:

Leonard William Day, pro se

West Liberty, Kentucky

BRIEF FOR APPELLEE:

Russell Coleman 

Attorney General of Kentucky 

Kristen L. Conder 

Assistant Attorney General

Frankfort, Kentucky