Background
Nicholas Johnston received concurrent five-year sentences for two child-endangerment convictions in 2016 and was released on parole. While still on parole, he was arrested for first-degree robbery in November 2017, and his parole was revoked. In April 2019, he received a ten-year robbery sentence that was ordered to run consecutively to his earlier sentence, producing an aggregate fifteen-year term.
The Kentucky Department of Corrections calculated Johnston’s earliest parole-eligibility date as October 2027. Johnston argued that the calculation should include the period between his November 2017 arrest and his April 2019 robbery sentencing, which he said would move his eligibility date to April 2026. After DOC rejected his administrative challenge, the Franklin Circuit Court dismissed his petition for a declaration of rights.
The Court’s Holding
The Kentucky Court of Appeals affirmed. Under KRS 532.120(3) and Mills v. Commonwealth, Johnston’s custody between his arrest and sentencing was not solely attributable to the robbery charge because he was also confined as a parole violator serving his earlier child-endangerment sentence. Applying that period to the new consecutive robbery sentence for parole-eligibility purposes would effectively allow the two sentences to run concurrently during that time, contrary to Kentucky law.
The court also emphasized that first-degree robbery made Johnston a violent offender required to serve at least 85% of his ten-year robbery sentence before parole eligibility. His proposed April 2026 date could permit parole after only about seven years of that sentence. Kentucky Department of Corrections v. Dixon did not compel a different result because it addressed work-time credit on aggregate sentences, not whether a new consecutive sentence begins upon arrest while the prisoner is confined following parole revocation. Johnston did not allege that DOC failed to apply the disputed custody time toward his maximum aggregate term.
Key Takeaways
- Presentence custody is credited to a new sentence under KRS 532.120(3) only when the custody is attributable solely to the charge producing that sentence.
- A returned parole violator who receives an additional consecutive sentence generally cannot use the parole-revocation confinement period to accelerate eligibility on the new sentence.
- Aggregating consecutive sentences does not override the statutory requirement that a violent offender serve at least 85% of the qualifying sentence before parole eligibility.
Why It Matters
The decision distinguishes credit toward an inmate’s maximum aggregate term from the calculation of parole eligibility on a later consecutive sentence. It confirms that time served after parole revocation cannot be used to shorten the mandatory service period for a new violent-offense sentence merely because the conduct leading to the new charge also triggered the revocation.