             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
 BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
 BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
 DECISION IN THE FILED DOCUMENT AND A COPY OF THE
 ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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 ACTION.
                                                 RENDERED: AUGUST 20, 2015
                                                      NOT TO BE PUBLISHED

              Suprrittr Court of 71 rtifurkv
                              2014-SC-000313-MR


CHAVEZ CORTEZ BYRD                                                    APPELLANT


                 ON APPEAL FROM DAVIESS CIRCUIT COURT
V.              HONORABLE JOSEPH W. CASTLEN, III, JUDGE
                            NO. 13-CR-00056


COMMONWEALTH OF KENTUCKY                                               APPELLEE


                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      At approximately 1:30 A.M. on December 21, 2012, Appellant, Chavez

Byrd and his co-defendants, Keelan Walton ("Walton") and Chris Byrd ("Chris"),

burst into the residence shared by Chloe Palomo, Pablo Vargas, Javier Perea,

and Ismael Moreno. Armed with a shotgun and a knife, Appellant, Walton, and

Chris beat and robbed the three men who lived there. Appellant and his

confederates then forced Ms. Palomo to perform oral sex on them. The three

defendants were eventually arrested and indicted by a Daviess County Grand

Jury and charged with first-degree burglary, first-degree robbery, and first-

degree sodomy. Their cases were consolidated for trial.

      A Daviess County Circuit Court Jury convicted Appellant, Walton, and

Chris on all charges, and sentenced each defendant to twelve years'

imprisonment on each count. The jury further recommended that the
sentences be served concurrently resulting in a total sentence of 12 years'

imprisonment for each defendant.

      At a subsequent sentencing hearing, the trial court ordered that

Appellant and Walton's burglary and robbery sentences be served concurrently

with each other. The court then ruled that those convictions be served

consecutively with the sodomy conviction. However, the court accepted the

jury's recommendation that all of Chris' sentences be served concurrently.

Appellant now appeals his conviction and sentence as a matter of right

pursuant to § 110(2)(b) of the Kentucky Constitution.

                                   Sentencing

      Appellant claims that the trial court erred by admitting the testimony of

jail personnel at Appellant's sentencing hearing. He specifically argues that the

jail personnel testimony exceeded the type of evidence that the Commonwealth

may present to the jury under KRS 532.055(2)(a). Appellant further contends

that the court abused its discretion by ordering his robbery and burglary

sentences to be served consecutively with his sodomy sentence. We disagree.

      KRS 532.055(2)(a) limits the type of sentencing evidence that may be

presented to the jury, not the trial court. Instead, courts retain broad

discretion in deciding whether a defendant's sentences shall be served

consecutively or concurrently. KRS 532.110(1); see also Nichols v.

Commonwealth, 839 S.W.2d 263, 266 (Ky. 1992); Dotson v. Commonwealth,

740 S.W.2d 930 (Ky. 1987). In rendering its decision, the court must consider

the information contained in the presentence investigation (PSI) report. KRS


                                        2
532.050. In addition, KRS 532.007 requires that trial courts consider the

likely effect of a sentence on the defendant's future criminal behavior. In

applicable cases such as here, the court should also consider the presentence

sex offender evaluation provided under KRS 17.554.

      The record indicates that the trial court reviewed Appellant's PSI and sex

offender evaluation prior to entering its final judgment.

      Furthermore, Major Bill Billings testified at the sentencing hearing

regarding Appellant's behavior while incarcerated. He stated that Appellant

received 69 incident reports, most of which resulted from threats to jail staff

and violence toward other inmates. Deputy Ashley Yeckering also testified

that, while patrolling the high-risk cells in which Appellant was being held,

Appellant made a lewd comment toward her. She prepared an incident report

based on that comment. The trial court determined that Major Billings and

Deputy Yeckering's testimony was consistent with Appellant's sex offender

evaluation, demonstrated lack of remorse, and suggested that he was not

amenable to rehabilitation.

      The court properly observed the required sentencing procedures here.

None of the pertinent statutory provisions previously discussed bind trial

courts to consider only the information presented in the PSI or the presentence

sex offender evaluation.   See Murphy v. Commonwealth, 50 S.W.3d 173, 178

(Ky. 2001) (where trial court, acting contrary to the jury's recommendation,

sentenced a juvenile to consecutive sentences based on factors not required to

be included in the PSI). For sentencing purposes, trial courts are not confined


                                         3
to the four corners of any pretrial report. Courts may also consider

information that could have been included in such reports, as well as other

instructive evidence such as the jail personnel testimony at issue here.

      Moreover, KRS 17.554 specifically provides that the sex offender

evaluation shall consider "[r]ecent behavior that indicates an increased risk of

recommitting a sex crime[]" and "[r]ecent threats or gestures against persons or

expressions of an intent to commit additional offenses . . . ." Having reviewed

the record, the lewd comment proffered by Appellant towards Deputy Yeckering

certainly constitutes behavior that should be considered under KRS 17.554.

      The record also indicates that the court based its sentencing decision on

Appellant's criminal history and risk of recidivism, as well as the significant

threat Appellant posed to public safety. In contrast, the court found numerous

mitigating factors with respect to Chris such as his lack of negative incident

reports while incarcerated, his military service, possible Post Traumatic Stress

Disorder diagnosis, and his demonstration of remorse and amenability to

rehabilitation. The court accordingly ordered all of Chris' sentences to be

served concurrently.

      Such a facial disparity in sentencing does not equate to an abuse of the

court's discretion. The court abuses its discretion only where the record

entirely fails to support the court's sentencing determination as to a specific

defendant. "The test for abuse of discretion is whether the trial judge's

decision was arbitrary, unreasonable, unfair, or unsupported by sound legal

principles." Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.


                                         4
2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).

Considering the evidence presented at the sentencing hearing, the trial court

did not abuse its discretion in ordering Appellant's burglary and robbery

sentences to be served concurrently with each other, and consecutive with the

sodomy conviction.

                                  Conclusion

      For the foregoing reasons, we hereby affirm the judgment of the Daviess

Circuit Court.

      All sitting. All concur.



COUNSEL FOR APPELLANT:

Steven Jared Buck
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

Nathan Todd Kolb
Assistant Attorney General of Kentucky




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