Michael Shaun BOONE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
No. 88-SC-839-MR.
Supreme Court of Kentucky.
Nov. 30, 1989.
780 S.W.2d 615
It is changes of value of this nature which are brought about by the nature of the project to be constructed, once it becomes known, that must be disregarded in establishing the “before taking” value. Here the diminution in value was not caused by the nature of the project to be constructed but rather because of damage sustained to a building upon the condemned property.
The city had no legal right to take the movant‘s property before the entry of the interlocutory judgment. Any attempt to do so would have constituted a trespass. There was no evidence of such an attempted taking as would justify a submission to the jury that the date of taking was earlier than the entry of interlocutory judgment, and the trial court‘s instruction which authorized such a finding was erroneous. The Court of Appeals held that the jury should have been instructed that the date of taking was August 27, 1985, and we affirm that holding.
The movant contended that in as much as the city was interested in the land only and not the building, the damaged condition of the building at the time of taking was immaterial. Movant contends that, at the very most, the city should only be able to deduct from the “before value” the market value of the salvaged materials because the city intended to tear down the building, and its only benefit from the building would have been the market value of salvageable materials.
Nevertheless, our condemnation law provides for condemnation of real property upon payment of the difference in the fair market value of the condemnee‘s property immediately before and immediately after the taking. Fair market value of the property condemned is the test.
Often the property condemned has improvements upon it for which the condemnor must pay even though the improvements are of no benefit to the condemnor. Although it is true in this case that the building upon the property was to be torn down, we are not convinced that the city should be required to pay more for the property because it had a building upon it than the amount by which the building added to the fair market value of the property at the time of the taking.
The decision we have reached here makes it unnecessary to express an opinion upon the issue raised by the cross-movant.
The decision of the Court of Appeals is affirmed.
STEPHENS, C.J., and COMBS, GANT, LAMBERT, WINTERSHEIMER, and VANCE, JJ., concur.
LEIBSON, J., concurs by separate opinion.
LEIBSON, Justice, concurring.
I concur in result only.
If there was evidence to prove that the City took exclusive possession of the building when the tenant moved out and delivered the keys to the City‘s representatives, and the owner no longer had access to the property, I would reach a contrary result. I believe there can be an issue of fact as to the date of taking, but the owner‘s evidence is not sufficient to make this an issue in this case.
Frederic J. Cowan, Atty. Gen., Frankfort, Lana Grandon, Asst. Atty. Gen., for appellee.
GANT, Justice.
In July, 1987, appellant was indicted on two counts of first-degree sodomy, one count of first-degree sexual abuse, and one count of first-degree rape. The victim herein was an eight-year-old girl with whom appellant and his wife had been retained to babysit. The rape charge was subsequently dismissed, and appellant was found guilty by the jury of the two counts of sodomy and the one count of sexual abuse. The jury recommended a 20-year sentence on each of the sodomy charges, to be served consecutively, and one year on the sexual abuse charge, to be served concurrently, for a total of 40 years. The trial court followed the jury‘s recommendation.
The sole issue on this appeal is the sentencing procedure prescribed by
On appeal, appellant argues that refusal to permit him to introduce this evidence of minimum parole eligibility and to place the sole control of said evidence in the Commonwealth is a denial of due process under the 6th and 14th Amendments of the Constitution of the United States and § 11 of the Kentucky Constitution.
As we have pointed out in previous opinions, Kentucky is one of the few states which provides for jury sentencing. Much of the trouble which arises in the sentencing procedure would be eliminated by judicial sentencing. However, as we pointed out in Commonwealth v. Reneer, Ky., 734 S.W.2d 794, 797 (1987):
One of the chief deficiencies in our present procedure is that, after reaching a verdict of guilt, the jury is required to sentence in a vacuum without any knowledge of the defendant‘s past criminal record or other matters that might be pertinent to consider in the assessment of an appropriate penalty. On balance, the inconvenience of a bifurcated trial is a small price to pay for a better informed sentencing process.
Thus, we have endorsed the concept of an enlightened jury in its consideration and assessment of an appropriate penalty. However, we agree with the appellant that to place this phase of the enlightenment solely in the hands of the prosecutor is a denial of due process to the appellant or any other defendant. If “Truth-in-Sentencing” is the objective sought by
It is our opinion that that portion of
The conviction herein is affirmed; the sentence is vacated, and this case is remanded to the McCracken Circuit Court for resentencing under the procedures outlined herein.
STEPHENS, C.J., and COMBS, VANCE and WINTERSHEIMER, JJ., concur.
LAMBERT, J., concurs in result only.
LEIBSON, J., dissents and files a separate dissenting opinion.
LEIBSON, Justice, dissenting.
Respectfully, I dissent.
This is Chapter IV in a book with an unhappy ending. In it we tear up the fabric of the judicial rulemaking process. Chapter I was Commonwealth v. Reneer, Ky., 734 S.W.2d 794 (1987); Chapter II, Huff v. Commonwealth, Ky., 763 S.W.2d 106 (1989); and Chapter III, Commonwealth v. Hubbard, Ky., 777 S.W.2d 882 (rendered September 7, 1989). This is a series of ill-advised, ad hoc rulemaking decisions that followed after the legislature intruded into the sentencing procedure with a statute misdesignated as “Truth-in-Sentencing,” now codified in
In Chapter I of our judicial consideration of this new “Truth-in-Sentencing” legislation, Reneer, supra, we held that
My Dissent in Reneer comments, referring to the ill-advised decision to permit the Commonwealth to introduce evidence relevant to minimum parole eligibility:
“There is no way to comprehensibly convey to the jury all of the conflicting possibilities that surround parole eligibility.... The prospect of confusion and ‘half-truths’ is inevitable.” 734 S.W.2d at 800.
In Chapter II, Huff v. Commonwealth, supra, we were presented with compelling arguments as to why permitting the Commonwealth to introduce evidence concerning minimum parole eligibility makes an indigestible stew of the sentencing process; why this violates “the due process clause of the Fourteenth Amendment of the United States Constitution and Section 2 of the Kentucky Constitution,” and “equal protection guaranteed by both Constitutions“; why it “is unconstitutionally vague in its application.” My Dissent in Huff comments appropriately. I will not repeat here.
In Chapter III, Commonwealth v. Hubbard, supra, we were confronted with the fact that a portion of
“Once again, this is ad hoc procedural rule-making on a subject where the rules should not be changed without first following the elaborate safeguards in the rule-making process.
Now we come to Chapter IV, the present opinion. Our Court is presented with a different argument explaining why the present statute directly implicates the due process clause in both our Federal and State Constitutions. The new argument is so compelling none can refute it. It is that the changes in
KRS 532.055(2)(a) are entirely one-sided. Only the Commonwealth, and not the defendant, may offer evidence about the matters enumerated therein. Instead of responding by rejecting a rule which is patently unacceptable, we elect to write a new rule in this Opinion, a rule never before considered by our Court. We order that both sides may now introduce evidence regarding minimum parole eligibility. Perhaps this rule suffices to meet the due process shortcomings in a statute that permits only the Commonwealth to introduce such evidence. But it does not meet the due process complaints registered in Huff. They remain unanswered. Worse yet, the new rule is a fatal injury to the rulemaking processes developed by our Court to insure appropriate and orderly changes in the Rules of Criminal Procedure, processes essential to insure both quality and legitimacy. Returning to my Dissent in Hubbard:“Before undertaking such a change we should follow our carefully conceived, established policy for rule change. This includes a study and recommendation by the Supreme Court Committee on Criminal Rules, followed by a public hearing at the Kentucky Bar Association Annual Convention, before changing the rules.” Draft Op., p. 9.
This new “Band-Aid” approach creates problems worse than leaving the wound untreated. We should view it as completely unacceptable. This is a giant step beyond Reneer and Huff where we adopt the General Assembly‘s sentencing procedure in place of our own “under the principles of comity” (Reneer, supra at 797), because the present rule change does not adopt the statute. On the contrary, the rule change mandated in this Opinion adds to and conflicts with the statute. In
Thus, our new rule, judicially adopted in this case, rests neither on accommodating the legislative enactment, i.e., “principles of comity,” nor on the rulemaking process formerly required and applicable before making a significant change in criminal procedure. Nor is there case authority, or any authority, for introducing this new procedure ad hoc. In sum, we are rending the fabric of our judicial process in an unprecedented manner to save a bad rule by extending it. The damage to our rulemaking process from this precedent may be irreparable.
The Majority Opinion blames “the trouble which arises in this sentencing procedure” on jury sentencing, and opines it “would be eliminated by judicial sentencing.” This remark is dicta, both ill-advised and unnecessary to the Opinion. In fact, there is no more justification for a judge to consider the vagaries and uncertainties of parole eligibility in fixing an appropriate sentence than there is reason for a jury to do so. Either way, judge or jury sentencing, the “matter of the future disposition of a convicted defendant is wholly and utterly foreign to his guilt and is not a proper consideration ... in determining the length of his sentence.” See Farris v. State, 535 S.W.2d 608, 614 (Tenn.1976), as quoted in my Dissent in Huff v. Commonwealth, supra at 112. The sentencing authority, judge or jury, in setting an appropriate sentence, cannot and should not try to second guess the prison and parole system. The future disposition of the prisoner after sentencing is a matter that addresses itself to the prison authorities and the executive branch of the government subject to the
“In our present sentencing system, at the point where a convicted offender is turned over to the Department of Corrections, the power to determine the period of incarceration passes completely to the Parole Board.” Reneer, supra at 800.
Whether and when a convicted felon will be released short of the expiration date of his sentence is not a judicial function, nor is it an appropriate consideration in exercising the judicial function. Indeed, from the standpoint of the judicial process, it is an extraneous speculation.
As I state in my Dissent in Reneer, the time is long overdue for our General Assembly to deal with the problems created by “our present unwieldy and unworkable parole system ... that has destroyed credibility and public confidence in criminal sentencing.” Id. at 800. The problems generating from early release of convicted felons were not caused by our judicial sentencing process and will not be materially improved by our new ad hoc rulemaking approach. Our present approach, seeking to integrate considerations of parole, an executive function, in the exercise of the judicial function, makes matters worse.
In the present case the trial judge excluded the evidence offered by the defendant on parole eligibility because the statute does not permit it. He was correct and should be affirmed. He should not be required to anticipate that we will amend the statute in direct conflict with the express intent of the General Assembly.
We should declare