Commonwealth v. Reneer

concur, except All WINTERSHEIMER, J., does who concur. Director, Stivers, F. Asst.

Susan Ken- Ass’n, Frankfort,

tucky for Bar movant. III, Louisville, Taylor, Daniel T. for re- COMMONWEALTH spondent. Movant, Kentucky, AND ORDER OPINION Edgar RENEER, Respondent. John

STEPHENS, Justice. Chief No. 86-SC-780-CL. disciplinary proceeding, In a Kentucky Board of Governors of Bar Kentucky. Supreme Court respondent Association concluded 6, Aug. 1987. charges on two of unethical and unprofessional bring calculated to conduct 6, Aug. As 1987. Amended into disre bench bar pute. The Board recommends that the re

spondent publicly reprimanded on the I,

charge 17, 1985, May filed Count for

threatening charges

solely possible in a advantage to obtain an

civil matter. The Board further recom respondent suspended

mends that from practice in this Commonwealth period charge

for a months on the six 9, 1985, failing

filed October to seek

prior approval Kentucky Workers’

Compensation for his fee a work Board compensation

ers’ The Board rec action. respondent by given credit

ommends previously he the time has remained suspension.

under decision,

Having reviewed the Board’s adopts findings

the Court and recom- As

mendations the Board Governors. 17, charge, respondent ‍​​‌​​​​​​‌​​‌​​‌‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​‌​‌‌​​​‌​‌​‌‌​​​‍May for his hereby publicly reprimanded con- charge,

duct. As to the October respondent hereby suspended for a

period given credit of six months with previously respondent time the suspension. respon- under

remained pay

dent is directed costs of these

proceedings. respondent is relieved complying provisions

from SCR with

3.390.

shall served concurrently or consecu- tively.

“(a) may by Evidence be offered sentencing Commonwealth relevant to cluding: parole eligibility, prior “1. Minimum defendant, felony convictions of the both misdemeanor; and prior The “2. nature offenses for convicted; which he was commission, The “3. date of date sentencing date of release from supervision prior confinement or all from offenses; The expiration “4. maximum of sen- by tence as determined the division of probation parole for all such current Gen., Armstrong, Atty. David L. Prank- offenses; fort, Runyon, Sonego, Sp. John Paul Ian “5. The defendant’s if on status Gеn., Pikeville, Asst. Attys. for movant. bation, parole, discharge, conditional Niehaus, Jr., Heft, J. Frank David W. release; legal other form of Goyette, Daniel T. Jefferson Dist. Public “(b) may The defendant introduce evi- Defenders, Louisville, for amicus curiae. mitigation. purposes dence For of this section, mitigating Isaacs, evidence means evi- Posnansky, Mark A. Paul P. significant dence that the Advocates, Frankfort, Asst. accused has no Public Samuel history Jr., activity may of criminal Conkright, Advocate, R. Asst. Public Owensboro, qualify leniency. him for This section respondent. for preclude

shall introduction evi- OPINION OF THE negates any COURT CERTIFY- dence which evidence intro- ING THE LAW Commonwealth; duced “(c) Upon proof, conclusion question whether not K.R.S. range the jury court shall instruct on the (The Statute) 532.055 Truth in Sentencing the de- and counsel for violates Section 28 of Kentucky Consti- arguments may present fendant followed relating tution separation of powers by the counsel for the Commonwealth. among separate departments of state jury shall then retire and recommend government. sentence the defendant. K.R.S. 532.055 as follows: “(3) All hearings pursuant held to this “(1) cases, felony In all jury in its section shall be combined with hear- initial verdict will amake determination ing provided KRS 532.080. This guilty, of not guilty, guilty mentally but apply section shall not ill, guilty by or not insanity, virtue hearings provided for in KRS 532.025. no more. “(4) jury In the event that the is un- “(2) Upon return of verdict of agree or any able as to the sentence or guilty mentally ill de- portion reports thereof and so fendant, the court sen- shall conduct a judge, impose shall the sen- tencing hearing such jury, before the range provided within tence else- case tried was before a in the hear- where law.” punish- will determine the ment imposed range Edgar to be within the John Reneer was indicted provided first-degree elsewhere sodomy law. The offense as a shall first-degree recommend whether the sentences offender. The offense alleged committed ed Section 28 of Constitu- been in tion. 1985. K.R.S. 532.055 became effective

July, brought 1986. Reneer was to trial Nevertheless, policy it has not been the Thus, August, 1986. the offense which nullify this court as a matter allegedly he was accused was committed legislation infringes all course statute, effective before the date upon a some extent function of began his trial after the effective date. 570 judiciary. Farley, Ky., In Ex Parte (1978), 617 said: S.W.2d we commenced, Before the trial trial the jealous disposition “It not is to be provisions court ruled that the of K.R.S. hypertechnical over the boundaries that relating to trial 532.055 a bifurcated separate from that of the our domain felony cases were unconstitutional because legislature. do not inter- Where statutes legislative infringe- attempted the statute the fere or threaten to interfere with upon Supreme ment the of the Court orderly justice, of what administration practice prescribe procedure of and to rules of quibble it to which branch boots over for the Court of Justice. government rightful authority? has We by not found Reneer was tried branch, legislative in the respect the impact guilty. of the of K.R.S. Because are comity name of and common sense pending criminal upon 532.055 hundreds of glad accept applica- the without cavil Commonwealth, throughout the we trials judicial pertaining tion of its statutes granted of the the motion Commonwealth 532.075, matters, accept just as constitutionality certify the as to the argued though it been with even 532.055. of K.R.S. much force that there no constitutional procedur- We hold that K.R.S. 532.055is scope of enlarging for a the basis statute provisions with the al nature. Its deal of matters appellate beyond review the trial and procedure to followed proceeding in the under considera- record sentencing of trials. The criminal tion.” any add or ele- statute does not remove Id. 624-625. crime, necessary ment to convict of Commonwealth, Ky., 634 O’Bryan v. penal- it increase ‍​​‌​​​​​​‌​​‌​​‌‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​‌​‌‌​​​‌​‌​‌‌​​​‍or does not lower (1982), this court considered S.W.2d imposed upon ty that can be conviction. procedures for established statute which statute, Following the of the enactment We change cases. of venue permitted hear some evidence said: sentencing phase of a trial that in the superseded by this this statute is “Until thereto- not have been admissible would paramount rule- Court, under the Court’s fore, go does not to the but this evidence authority, as enacted making it stands neither guilt or innocence. It issue princi- under the General creases or lessens Ex Parte ples comity elucidated convict, proof required amount of Accounts, Ky., 609 Public Auditor of making compe- such (1980). statute’s Under the S.W.2d v. procedural. Murphy tent is likewise terms, hearing unambiguous clear and (1983). Commonwealth, Ky., 652 S.W.2d required.” open court 158. Id. at this Com Supreme Court of Littrell, authority prescribe Ky., 677 monwealth has v. Commonwealth procedure (1984), in the the fact practice we noted rules of not, have, preempt- had could courts of this Commonwealth. this court Constitution, promul- statute procedural 116. Because K.R.S. ed a Section held procedure, and we a rule of legislative attempt gation to invade 532.055 is this court had Su fact making prerogative of the the rule adoption statute preempted the prescribing preme by legislatively Court in itself pertinent rule practice procedure, rules it violates efficacy statute. approval tacit separation powers enunciat- doctrine Perhaps expressed accept judgments our view was best able its withоut Accounts, Ex Parte Auditor Public leaving seeds of jeopardy future (1980), Ky., 609 S.W.2d 682 as follows: judicial integrity of the we shall it, ours.) principle, “The (Emphasis correct as we continue to do so.” view legislative function so cannot be Id. at 688. unreasonably exercised as to interfere Although apparent it is that K.R.S. 532.- functioning courts, with the 055 constitutes an encroachment per unconstitutional intrusion is Assembly upon prerogatives General unreasonable, se unless it be determined is, Judiciary, nevertheless, it by the court that it can and should be encroachment it ac- unreasonable can be spirit in a of comity. tolerated The con- cepted principles comity. under the true, also verse Lunsford specific provisions We look then to the Commonwealth, Ky., 436 S.W.2d 512 532.055 to K.R.S. determine whether (1969), recognized this court that its own poses any act unreasonable interference authorizing imprisonment rule for failure the orderly functioning with of the courts. peace to execute a bond was an unconsti- infringement upon legisla- tutional the require Sections and of in the act prerogative. tive Raney, supra, And in felony the jury’s cases determination of reason, for the same we declined the guilt or innocence be shall bifurcated from trespass invitation to upon the exclusive penalty. the assessment procedure This right qual- of the to Senate determine the has already adopted penalty been in death disqualifications ifications and of its own cases. fact that the must deliber- is, course, inquiry members. Such an innocence, guilt ate once on the issue of or nature, judicial of a but the Constitution guilty, must hear further evidence it from judicial process. excludes again upon and deliberate the assessment “Inevitably, always there of penalty, will doubtless consume addition- a gray be area in which a line between process. al time in the trial Offset legislative prerogatives the Gen- jury, this is the fact that the in the sentenc- eral and the rule-making au- ing phase, will able to hear much be evi- thority the courts is easy dence relevant to which it is not draw. The policy this court is not to permitted now to hear. the propriety legislation contest in of the chief in One deficiencies this area to which we can accede that, procedure is a reaching after through is, a wholesome comity. There guilt, required vеrdict of example, for providing the statute sentence in a vacuum any without knowl- disqualification judges, KRS edge past of the defendant’s 26A.015, as contrasted with 4.300 SCR might perti- record other matters that be 3, C(l), in subject- Canon which the same to consider in the an nent assessment of matter is included as part a of the Code appropriate penalty. balance, On the in- of Judicial There Conduct. is also the convenience of trial a a bifurcated small matter court costs and fees. See KRS price to a pay for better informed sentenc- statutory 24A.270. Even the creation of ing process. a small claims division within struc- provides Section 3 of the statute ture constitutionally-established of the court, penalty-phase hearing felony case 24A.230, district is not be- hearing required combined with the yond pale of an honest difference of persistent felony 532.080 in opinion. K.R.S. cases. But we hold As- the General highest pen- K.R.S. 532.080 for enhanced sembly respect, and much persistent felony prefer cooperation alties offenders and over conflict. It has requires that when a great accommodating charged done defendant is work being persistent offender, felony statutes to the with new and hitherto-untried requirements Judicial determination whether or not he is such Amendment, and the punishment to the extent that we offender and be im- separate weighed against dure when posed be determined the alternative shall hearing complete resulted of a proceeding from the trial. in his last conviction. We reiterate that this court has the perceive any apparent difficul- We do not preempt pro ty procedure. step The first of the mulgation procedure of different rules try guilt or of the trial will innocence necessary. time we determine it We crime he is defendant of the with which right reserve the to consider abuses charged. penalty phase The bifurcated alleged injustices to be caused K.R.S. specific on decide the case, presented by 532.055 when charge pertaining after additional so, but until such time as we do decline we sentencing is heard. unconstitutional, to hold K.R.S. 532.055 charged per- also

If the accused is accept provisions being its for the time offender, penalty phase sistent principle comity. under persistent felony phase offender can changеs Because the act relates the same evidence be combined because law, rather than substantive pertinent fixing penalty toward application at of one for an its the trial pertinent is also consideration offense before its enactment is committed sentence, and the enhancement application ex post not an facto law. hearing could bifurcated the combined Commonwealth, Ky., Murphy v. fix a on basic instructed (1983). 69 indictment; (2) charge in the determine a guilty whether the defendant as then Further, ap we do not consider so; (3) offender, and if fix plication to the trial of the de of act penalty persistent felony as the enhanced a give effect to fendant Reneer retroactive offender. 446.080(3). of in K.R.S. violation judge Sеction of the act procedures at trial. The act deals with penal- sentencing within the limitation of by procedure governed at trial is The cannot provided by jury law if the ties at exist the time rules Presently agree upon the sentence. RCr trial, commission the time of the not at provides that: 9.84 right No one has a vested of the offense. returns verdict of “When state, and the procedure, modes of degree it shall fix the of the offense and regu- policy, may upon grounds public penalty, except where the pleasure. late them law, by fixed in which case it shall be mode in which regulations of the Such fixed court.” guilt may placed constituting be facts many In states the sentence in applicable to made can be by judge jury. is fixed rather than cases with- thereaftеr and prosecutions or trials sentencing argued has been It commission date reference to the out sentencing, to more uniform lends itself Utah, 110 charged. Hopt v. of the offense has, past, given con- this court (1884); 202, 574, L.Ed. U.S. 4 S.Ct. adopting a rule. We such sideration Commonwealth, supra. Murphy v. yet, see no as but have not done so is so certified. The law sentencing permitting judge harm forth in K.R.S. limited circumstances set hung 582.055(4). juries result when Many C.J., GANT, STEPHENS, unanimously guilt agreed on but has STEPHENSON, VANCE agree penalty. unanimously on the cannot WINTERSHEIMER, JJ., concur. cases, by the such a sentence then fixed LEIBSON, J., by separate dissents provid- range penalties

judge within the LAMBERT, in which opinion unrea- attached appear does ed not be J., proce- joins. orderly sonable interference with LEIBSON, Justice, dissenting. Bar tucky Association. We bypаssed safeguards that would have been I Respectfully, dissent. by study procedures vided these new grant comity Our Court has elected to professionals, and embraced their stead changes new law that effects substantial very precipitous change forces judicial procedure. changes These Article designed new Judicial poorly conceived and constitutionally defuse. flawed. visionary It takes no to foretell that the Majority Opinion agrees The to these sentencing procedure (1) produce new changes under the principle comity. are, cases, many sentences that unduly means, “Comity” definition, judicial abusive, (2) fatally harsh and overload an adoption obligation, “not as a matter of but already prison system, overcrowded out respect.” of deference and Black’s problem disparate exacerbate the sen- Dictionary, p. Comity,” Law “Judicial tencing. impending calamity (5th 1979). this, ed. When we do it not (it sentencing less) is not the General but our Court that just likely, spawned this it is inevitable. It system. will take Court, years Our Assembly, not the General of effort to must correct the mischief we responsibility bear the day, its future conse- have done this if indeed correction will quences. possible. Majority ever opines right we “reserve the to correct states, Opinion The Majority agree, and I injustices,” future” “abuses or but cor- legislative that “KRS 532.055 a attempt rection will come too little and too late for making invade the rule prerogative of those who in the suffer meantime. Court,” Supreme and that “it violates separаtion powers doctrine enunciat- Opinion Dissenting I will confront ed in the Kentucky Constitution.” § injustices, some these abuses Constitutionally this utterly statute is with- flaws, legal certainly some effect, out lawful give but we it life jump all. There be others do through comity. “comity” This is “A Comi- out at the reader of this statute obvious- ty of know, Errors.” Our Court should ly as the ones I address. I will address not, even if the Assembly General did problems, in these not the order their assigned the name to the bill propo- its ‍​​‌​​​​​​‌​​‌​​‌‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​‌​‌‌​​​‌​‌​‌‌​​​‍importance, in they but the same order as nents, “Truth-in-Sentencing,” is euphem- statutory language. come in forward practice ism. In we adopting system are of “Half-Truths-in-Sentencing.” I.

The new Judicial Article enacted in 1975 Supreme Court, entrusted the not the Gen- “THE JURY SHALL RECOMMEND eral Assembly, power pre- with exclusive to WHETHER THE SENTENCES practice scribe “rules of and fоr BE SHALL SERVED CONCURRENT- the Court of Justice” such General LY OR KRS CONSECUTIVELY.” Assembly up set sweeping changes 532.055(2). KRS 532.055. See Ky. enacted Const. This statement conflicts 532.- with KRS With the power goes 116. to act full § Presently 110 and RCr 11.04. the law responsibility for the action taken. It is places Court, responsibility deciding for our whether not the Assembly, General consecutively sentences should be served has made KRS 532.055 the law of this concurrently judge. with the doing Commonwealth. so we dis- regarded judge problem con- to decide carefully thought-out policies sentencing practices or concurrent is an im- usually secutive our Court fol- portant pre- lows adopting any change tool available the court to major disparate sentencing. Procedure, including Rules of vent It fore- Criminal will be study by closed, a select significantly impaired, by benсh at least committee bar, public hearing statutory change. Ken- for before the reason comity in- granting Commentary to the statute in this tence.” See to KRS 532.060. escapes Although me. stance the Parole promul- Board has gated regulation an administrative which If provision practice the effect of this a schedule parole eligibility, establishes for proves obviously out to the effect schedule, however, this the board add- “[t]o tended, producing sentencing, consecutive qualification ed the that it could ‘review the anticipate can rapid we acceleration parole case of inmate for consideration overcrowding already occurred eligibility if it appears his date prisons. anticipate our We can еxtended advisable to do so.’ Parole warehousing of nonviolent criminals. This Thus, Reg. DC-Rg-6(8). Board at least geometric problem will increase viewpoint, from theoretical [have] gression 1 of the “Truth- because new § Kentucky an indeterminate sentence with law, In-Sentencing” now as KRS codified maximum term that fixed [is] 439.3401, prescribes mini- a future Commentary and no minimum term.” parole eligibility fifty of “at mum least [Emphasis KRS 532.060. omitted]. (50%) percent imposed” of the sentence A B way comprehensibly certain Class and Class felonies. There con- vey conflicting possi- all of the long The time overdue our General parole eligibility. that surround It bilities dump unwieldy Assembly beggars imagination to visualize the parole system of a unworkable favor examination and cross-examination of the penalties (1) prоvides system “experts” testify provide who limits reasonable maximum prospect information. The of confusion instance, (2) parole, in the first abolishes “half-truths” inevitable. (3) requires those does whom probate imposed.1 not serve the sentence III. anything It is more parole than pub- else destroyed credibility that has THE BE PER- COMMONWEALTHWILL sentencing. lic But confidence MITTED TO INTRODUCE EVI- approach adopted by the Band-Aid the Gen- DENCE “PRIOR CON- REGARDING only eral make continue to DEFENDANT, VICTIONS OF BOTH course, impossible matters Of it is worse. AND FELONY MISDEMEANOR.” to discuss the details of a sentenc- 532.055(2)(a)(l). ing system confines this Dis- within the fel- Considering as well as misdemeanors changes say sent. It suffices to profound change, a dramatic onies wrought “Truth-In-Sentencing” by the from step. differ felonies Misdemeanors undoubtedly make matters worse. only often in the punishment, misdemeanors Many nаture of the crime.

II. only prohibita mala malum Occasionally pled se. misdemeanors are THE COMMONWEALTHIS PERMITTED rather than to as a matter of convenience TO OF INTRODUCE EVIDENCE guilt. safeguards an admission of Often “MINIMUM PAROLE ELIGIBILI- felony applicable to a conviction are 532.055(2)(a)(l). KRS TY.” short, admitting evidence utilized. tell the What will Commonwealth parole eligibility, has type, as with parole eligibility? minimum about potential producing “half-truths.” great point present sentencing system, our on over The new has no time limitation is statute where a convicted offender turned Corrections, offense, felony or misde- pow- prior use of a Department discre- meanor. It offers trial court no period er to of incarceration determine regarding admissibility. Thus convic- passes Board. tion completely to the Parole more, old, twenty yeаrs or This offend- tions are KRS 439.340. means “an trial normally would be conceivably er from cus- barred could be released present as decisions tody immediately imposition sen- irrelevant under after would, course, provide good prison, while in to some behavior 1. There still need to be guards. attack provision imposed for incentive not to for time sentence off the regarding prior appropriate felony use of consequence: siderable only this limited impeachment, convictions for apparent- to directly evidence that contradicts the ly admissible. evidence offered the Commonwealth re garding offenses, previous or does “ne piling up This prior convictions serves gate” “mitigate”? to mean Is the defend purpose exceрt provide to evidence that ant entitled to introduce evidence avail will be utilized to enhance regarding background, i.e., able his so problems sentence. It will exacerbate the cial, psychological, employment, family, regarding warehousing extended of crimi- other motivating factors his behavior to in nals referred Section I above. indirectly “negate” serve to or offset Although this parallels use re- some prior evidence of offenses? It a rule of spects present prior use of convictions in a longstanding that a criminal subject statute persistent hearing, offender KRS to more interpretation than one must be 532.080, none of the interpreted in favor defendant. This safeguards that exist felo- lenity.” the “rule of v. Roney Common statute, iiy inor the deсisions Court wealth, Ky., (1985). Under relating instance, thereto. For what about this rule the defendant rightfully should right prior challenge convictions entitled to introduce evidence of a “na Gadd, set out in Ky., Commonwealth v. tending negate ture” the effect of the (1984)? 665 S.W.2d 915 What about the prior evidence of convictions that has been fact that this does require statute introduced him. finding concerning of fact the existence of convictions, This is prior sentencing hearing to determine whereas the PFO statute range provided by within the does? What about extraordinary time expended right mag that must statute. It is rule of constitutional pre- discovery regarding trial nitude prior convictions, hearing, that in such a once the door open misdemeanors, evidence, i.e., felonies is to extrinsic be safe- evidеnce guarded by aggravation inquiry regarding mitigation their validi- other than ty? proof relating to the crime for which he convicted, stands defendant

IV. right go beyond simply evidence that contradicts the Commonwealth’s evidence. THE COMMONWEALTHWILL BE PER- Specht Patterson, See U.S. MITTED TO OFFER RE- EVIDENCE 1209, 18 (1967). S.Ct. L.Ed.2d 326 Unlike GARDING THE OF PRI- “NATURE proceeding, PFO wherein no OR OFFENSES.” 532.- regarding introduced the “nature” of the 055(2)(a)(2). offense, expanded in the circumstances prior “nature of offenses” is a much presented any now effort to limit the de broader term than appli- limitations presentation negating fendant’s evi use prior cable felonies in PFO dence, indirect, direct has serious Due proceedings. present, At evidence is limit- implications. Process Specht, supra. See designating ed involved, the offense none of the details of the nature of thе V. prior offense are admitted. Evidence the “nature” of a offense calls for THE COMMONWEALTHWILL BE PER- reconsideration the evidence from the MITTED TO INTRODUCE EVI- previous expect nothing We less case. can DENCE THE REGARDING “MAXI- complete than of subsection review because MUM EXPIRATION OF SENTENCE (2)(b) permits which the defendant intro- AS DETERMINED BY THE DIVI- negates any duce “evidence which evidence SION OF PROBATION AND PA- Thus, introduced Commonwealth.” ROLE FOR ... CURRENT AND PRI- indulged length both sides be at on the OR OFFENSES.” KRS 532.- prior “nature” of a offense. 055(2)(a)(4). requirement proviso, This in subsection As in this evidence used the word “cur- (2)(b) generates subsidiary a seemingly applies issue of con rent” to the of- pose the defendant stands con an fense excessive in order to proviso, Under this and the one compensate victed. protect against for or (evidence in Section II of discussed above pardoning paroling action au- using parole eligibility), pre minimum thority.” a comity, long we have abandoned text recognizing preju

line of it is cases VI. error inform the jury dicial about the parole. possibility Payne See v. Com “ALL HELD HEARINGS PURSUANT TO monwealth, Ky., (1981); 623 S.W.2d 867 THIS SECTION SHALL BE COM- Commonwealth, Ky., Broyles v. BINED WITH ANY HEARING PRO- ‍​​‌​​​​​​‌​​‌​​‌‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​‌​‌‌​​​‌​‌​‌‌​​​‍(1954); Boyle v. Common (THE BY VIDED FOR KRS 532.080” wealth, (1985); Ky.App., 694 S.W.2d 711 PERSISTENT FELONY OFFENDER cases cited therein: HEARING.) 532.055(3). subject parole' is not to “... presents variety prob- This scenario a given any consideration them [the complexity: lems insolvable innocence, determining guilt, jury] (a) above, setAs out on evi- limitations 712. punishment.” Boyle, supra at prove previous dence admissible to convic- Or, as in Payne: stated tions under the PFO statute are direct “The consideration of future conse- regarding conflict with these quences parole place such as ... havе previous permissible felonies jury’s finding may in the of fact and under the new statute: to distort For that reason serve it. we (1) The conviction “nature” prosecutor, now hold that neither de- proceeding. is not in a PFO admissible counsel, may fense nor the court make any consequences comment about the (2) per- regarding parole is not Evidence particular during a a verdict at time proceeding. in a PFO missible criminal trial.” 623 S.W.2d at 870. (3) finding requires The PFO statute for this rule a new We substituted proof sufficient fact possi- consideration of the conviction(s). previous to establish the is, bility parole, uncertain as it will be (4) contemplates The that a PFO statute imposing Although central sentence. underly- for the sentence must first be set parole necessarily the time of release on ing received offense evidence is time unknown and unknowable at the regarding prior offenses. sentencing, introduce evidence that (5) an accused When finds strongly suggests otherwise. agree PFO on the as a but is unable single hastily aWith conceived stroke of may not im- proper punishment, previous juris- pen we will discard our punishment. pose the Commonwealth prudence speculation invite about the (1983). Crooks, Ky., 655 S.W.2d possibility parole factor in as a central practical impossible matter it As a deciding jury’s yardstick to use in applicable decisions follow the statutes and punishment. legal reason- appropriate provisions of PFO previous ing underlying our decisions hold- single proceeding, irrelevant, the new statutes ing inflammatory, such evidence erroneous, thеy in direct conflict. because prejudicially is overturned explanation, largely without suitable b) proposes that majority decision place comment. In its we substi- without hear- “the the combined bifurcated approach on half-truths tute based fix be instructed to could speculation. indictment; (2) charge in the on the basic 1137, p. As stated in 16 1141: A.L.R.3d the defendant then whether determine offender, guilty as sentence, “As to prejudice [from so; (3) penalty as a fix the enhanced ‘possibility pa- information about practical operates persistent felony offender.” The by urging to im- jury the role’] tus, education, inherently occupation, effect this is The personal abusive. hab- hears, time, jury at the its, same evidence that matters that the court other permissible setting is now a sеntence for 532.050(2). included.” KRS directs be underlying improp- the offense but present Either the statute is intended as (a) deciding er person whether a existing procedures, a for our substitute PFO, (b) so, guilty as a the is, jury deprived the will it isn’t. If it be penalty enhanced as a PFO. presently much of the information that is practical way There is no the jury that and, Report, a Presentence included compartmentalize can so this information of that information could not be deed much prejudice as to avoid in all three decisions: presented in a form admissible under the offense, penalty the underlying the the concept rules of evidence. The that the PFO, guilt a determination as the something beyond setting jury will now do penalty. The enhanced same evidence will crime, punishment a to fit the which is again be used over over with result method for sen- jury inherent the new penalty underlying that for the offense tencing by 532.055, established KRS is sim- greater, guilt be the determination of ply If the unworkable. defendant cannot prejudiced, as a PFO offender will be and present may qualify other evidence that penalty the enhanced as a will be PFO leniency range him to coextensive with the multiple further The increased. enhance- by provided of information a Presentence suggested hearing ment effect sois Report, rights seriously prej- his have been fraught prejudice with that it should be hand, udiced. On the other if the defend- fundamentally considered offensive permitted present ant other evidence concept of justice. leniency, him may qualify present system contemplates Our that a ceedings lengthy will become so and com- jury punishment shall decide the for the plex destroy system. prob- as to offense for which the defendant has been presented imaginary, lems here are not on the convicted basis the evidence that they statutory are inherent relates to the nature of this offense. Even way scheme that we have embraced Gilbert and Sullivan’s Mikado had suffi- comity. justice cient inherent sense of to demand summary, under the new scheme the punishment that “the fit the crime.” No jury will use the same evidence to enhance person, record, past however bad his punishment three times. punishment greater should receive a than 1) extrinsic of- evidence of other punishment that fits crime. Our setting jury fenses will be used present system contemplates only af- sentence, original than, as jury punishment ter a rather has set that fits case, crime, jury presently limiting shall the hear evidence of the evidence previous offenses. The orders a Pre- to the crime for which relates Report providing sentence jury information sim- has convicted. ilar to that which will now be heard 2) deciding whether a defendant only pun- fixed the after being offend- ishment, sentence, imposing offenses, er, evidence of “other felonies then Report only uses that Presentence misdemeanors,” which would not be deciding imposed whether the sentence guilt PFO, determining relevant to as probated should be im- presented to utilize in decid- 532.050; posed mitigated. should be KRS question. 532.040; KRS 532.070. 3) of other This evidence offenses not report “The prepared shall be chаrge in the PFO involved also presented probation officer and fixing utilized enhanced analysis shall include an of the defend- persistent felony offender. history delinquency ant’s or criminali- Recently, physical condition, family

ty, Musselman v. Common- mental wealth, Ky., (1986), background, situation and sta- 705 S.W.2d 476 ma- economic 804 courage Kentucky the 2 of our

jority of our Court had Constitution. As re- § grounds por- invalidate on constitutional cently as Kentucky Marketing Milk v. statute, tion the KRS 525.- of harassment Co., Ky., (1985), 691 Kroger S.W.2d 893 our 070(l)(b). that, We stated the written “[a]s the power Court reaffirmed of “Section 2 unconstitutionally vague statute and of our Constitution” in these words: overbroad,” argument reject and the “[w]e enough “Section 2 is broad to embrace facially that a criminal statute unconstitu- concepts the traditional of due both ‘authoritatively construed’ tional can of equal protection cess law and of the the to render it courts constitutional ...” Id. at 899. law.” 705 at 477-78. We cited S.W.2d Kolender 1855, Lawson, 352, Kentucky U.S. 103 75 In that v. 461 S.Ct. case held “the (1983), holding law, L.Ed.2d 903 “loiter- Marketing face, Milk on its and in its ing unconstitutionally vague statute was by the enforcement Commission ... vio- meaning on the the its face within of Due Kentucky 2 of of Section Consti- lative of the Process Clause Fourteenth Amend Id. I tution.” continue subscribe ment.” 705 at 478. See also God of the Kentucky rationale decision 420, 446 100 frey Georgia, U.S. S.Ct. case, urge appli- I its Marketing Milk (1980), 1759, holding that a L.Ed.2d present cation circumstances. allowing penalty upon statute death Finally, appellee, makes a Reneer proof “outrageously murder was that, argument in any sound effect vile, wantonly inhuman,” horrible and event, application оf the new sentenc- vagueness. void prohibi- to him would violate However, not, not, I do rest need against post ex facto laws found tions case statute as uncon- I, Article Section 9 of the United States stitutionally impermissibly vague on of the Ken- Constitution and Section Rights federal cases. The Bill these tucky Constitution. 2, constitution, guarantees our § Kentucky procedur- of the citizens State alleged committed Reneer’s offense was stating: process, al due new the effective stat- date arbitrary power over the “Absolute and important ute. The statute calls for new lives, liberty property of freemen bearing question evidence on republic, in a not even in exists nowhere sentencing, relating offenses both to largest majority.” misdemeanors) (felonies sub- (1) calling for, nay demanding: A statute intro- will be ject parole, all which possibility speculating evidence on solely pur- prosecutor duced (2) parole; regarding stale and evidence sentence, obtaining a severe pose of more (and irrelevant) prior archaic therefore con- utilized could not have been which evidence for “felonies and misdemeanors” victions against him before. thereof; single and the “nature” in deter- is critical question sentencing hearing to consider combined post facto is an ex mining whether there the PFO both the initial sentence and “ag- statute violation whether the flagrant phase, is an violation obvious gravate any committed” crime heretofore Rights, Bill of 2. It an exercise of our § therefor greater punishment “prоvide arbitrary power and a denial due its com- prescribed the time of than was process have been struck and it should 574, 589, Utah, Hopt v. 110 U.S. such, into law mission.” down as much less enacted (1884). There can grant comity when the General 28 L.Ed. 262 S.Ct. powerless to man- admittedly question be no judicial procedures. date such intro- have been past offenses that would new law against Reneer under the duced legitimized We have the exercise arbi- adversely the assess- affected would liberty trary over lives and Reneer would freemen, by ment which is expressly forbidden offense, underlying received rules. The law is that “if ef- change applied.2 merely procedural” had it fected is been and does not “any right” affect post substantial the ex Florida, U.S. —, In v. 482 107 Miller implicated. is facto clause v. Kring 2446, (1987), 351 S.Ct. 96 L.Ed.2d Flоrida’s Missouri, 221, 232, 443, 107 U.S. 2 S.Ct. newly statutory sentencing guide enacted ‍​​‌​​​​​​‌​​‌​​‌‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​‌​‌‌​​​‌​‌​‌‌​​​‍452, (1883). my 506 judgment L.Ed. unconstitutionally lines applied were held justly say present no one can law to an offense committed before the stat merely procedural and without substan- date, ute’s effective ex violation tive effect. post facto I clause of Article of the Federal Ramos, People 136, v. 37 Cal.3d Supreme Constitution. The United States 800, Cal.Rptr. (1984), 689 P.2d 430 at issue guidelines Court held that the revised law requiring was a law court in trial was “more onerous” than the law in effect capital struct in a murder case the petitioner’s the time of crimes. Mil sentencing options, that one of a sen ler v. Florida cites earlier an United States tence possibility parole, of life without Supreme Court decision in v. Weaver Gra subject to the Governor’s of commu ham, 24, 101 960, 450 U.S. S.Ct. 67 L.Ed.2d against In resolving tation. the issue con (1981) the effect “[a] stitutionality, solely based on state consti retrospective ‘changes if legal it conse guarantees, tutional the court states that quences completed of acts before its effec ” “is example a classic of a mis Miller, at —, tive date.’ 482 U.S. ” leading ‘half-truth.’ 689 P.2d at 440. S.Ct. at 96 L.Ed.2d at 360. That context, realistically “Viewed and in specifically the if intended result and when instruction with seri- sentencing procedure, the new and the new ously misleading information.” Id. it, evidence that will be utilized under presently The statute under considera- applied in trial of crimes committed before tion, 532.055, presents problems far date of our effective new law. problem more serious than the in the Ra- The majority opinion cites Murphy piling up mos case. It involves Commonwealth, Ky., 652 piling on of evidence “half-truths.” It authority application of the ex invites the use of evidence that will neces- post However, facto principle. the Mur- sarily misleading confusing. It phy inapposite. case is The Murphy case vites the use archaic convictions both did not introducing involve additional evi- felonies and misdemeanors which are dence adverse to the accused. The sole longer they relevant ever It were. intro- issue was whether the defendant enti- combining duces one sen- tled an instruction to the effect that he tencing hearing initial both could not be convicted on the testimony underlying offense and conviction and accomplice supported by unless other offender, persistent felony sentence as a tending substantial evidence to connect him system necessarily involve the im- to the commission of the offense. The prejudicial overlapping multiple record reflected substantial circumstantial of the use same evidence for what should evidence, conflicting, albeit that corrobo- separate purposes. The new statute accomplice’stestimony rated the which im- surely qualifies one that as a cure worse plicated Murphy. Unlike circum- than the disease. stances, the Murphy case did not turn on LAMBERT, J., evidence, joins in the utilization of this dissent. additional but on strength necessary abolishing convict. change re-

quirement accomplice so-called instruc- procedural,

tion was merely held and not

subject to protection against post ex facto post prohibitions guilty thereby phase 2. Reneer was found ex facto his eliminat- necessity for trial els case. offender, we applicability so need not discuss

Case Details

Case Name: Commonwealth v. Reneer

Court Name: Kentucky Supreme Court

Date Published: Aug 6, 1987

Citation: 734 S.W.2d 794

Docket Number: 86-SC-780-CL

Court Abbreviation: Ky.