Boone v. CommonwealthBoone v. Commonwealth
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Lead Opinion
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 KRS 532.-055, which procedure was followed by the circuit court. Prior to the penalty phase, and after a finding of guilt as above set out, the Commonwealth notified the court and appellant that it would not offer evidence of minimum parole eligibility as provided 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, YANCE and WINTERSHEIMER, JJ., concur. LAMBERT, J., concurs in result only. LEIBSON, J., dissents and files a separate dissenting opinion.
Dissenting Opinion
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
“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 KRS 534.-055(2)(a) the General Assembly states that the “Commonwealth,” and only the Commonwealth, may introduce evidence “relevant to sentencing” on the subjects itemized therein, including “[mjinimum parole eligibility.” A separate subparagraph, (2)(b) of
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