RENDERED: JUNE 28, 2024; 10:00 A.M. NOT TO BE PUBLISHED 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 it s status from consecutive to

concurrent. After our review, w e affirm.

Day was convicted of compli city in the savage killing of his former

girlfriend

. The underlying facts are set forth in the direct appeal affirming Day’s- 2

-

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 S tevens, 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 woun d. 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 clai med 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, t o be served consecutively for a total

1 Hueitt was Day’s girlfriend at the time of Stevens’ s murder.- 3

- of fifty years.

Id. at *1

- 3.

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

CR 2 60.02 and RCr 3 11.42 based upon alleged ineffective assistance of counsel and

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

motion . T his Court affirmed that denial in Day v. Commonwealth
, Nos. 2010

- CA

000315

- 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 c ontinuous 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 presen t 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 appa rent RCr 11.42 argument on appeal.- 4

- On April 27, 2023 the trial court entered an Order 5 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

o ne 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 rel ief. 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 no t entitled to the relief sought.

Day appeal ed this O rder

.

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.- 5

-

court erred by failing to merge his convictions for complici ty 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

- convi ction

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, h e 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 leg al process, unless- 6

- 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 sen tence.” 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 sent ence and to modify that sentence

of consecutive to concurrent.

ALL CONCUR.- 7

-

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