Paul INGRAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
90-SC-336-DG
Supreme Court of Kentucky
Dec. 27, 1990
805 S.W.2d 123
As Modified Jan. 17, 1991.
“(2)(c) The administrative law judge, upon request of the claimant, may order the payment of the attorney‘s fee in a lump sum directly to the attorney of record and deduct the attorney‘s fee from the weekly benefits payable to the claimant in equal installments over the duration of the award or until the attorney‘s fee has been paid.”
While subsection (a) deducts the fee from claimant‘s final award payments, thereby cutting them off completely, subsection (c) permits equal deductions throughout the duration of the award payments. The legislature did not specifically categorize the method in subsection (c) as a commutation, which forms the crux of the problem in this case.
The Special Fund contends that it should not be necessary that the statute use the word “commute” for it to deduct a discount when the Special Fund is required to pay out presently part of a claimant‘s future benefits in order to pay an attorney fee. However, it is the word “commute” as used in
As the Court of Appeals noted, it is within the province of the General Assembly to legislate, and we may not add words or meaning to a statute. By the 1987 legislative session, the 1966 judicial interpretation of “commute” was long-standing. The statute, on its face, is clear, and there exists no provision for an attorney fee lump-sum payment discount under
The decision of the Court of Appeals is affirmed.
All concur.
Stephen P. Durham, Appellate Public Advocate, Louisville, for appellant.
Frederic J. Cowan, Atty. Gen., Ann Louise Cheuvront, Asst. Atty. Gen., Frankfort, for appellee.
COMBS, Justice.
By a multi-count indictment, appellant Ingram was charged with three offenses involving the sale, and possession for intended sale, of marijuana. In a single trial, he was found guilty on all counts. Two of those convictions constitute the subject matter of this review, which presents the question of whether Ingram has been twice put in jeopardy for the same offense, in violation of
The factual premise is simple. Ingram—an adult—sold two1 marijuana cigarettes to a minor. This exchange happened to occur within one thousand yards of a school building. The transaction produced two convictions, one for selling marijuana to a minor,2 another for trafficking within one thousand yards of a school;3 consecutive five-year sentences were imposed. Appellant insists that multiple convictions for a single act are prohibited by the Double Jeopardy Clause.4
The doctrine operates to bar subsequent prosecution for an offense, once the defendant has been acquitted or convicted, and to prohibit multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); Jordan v. Commonwealth, supra. To determine whether two charged offenses are in law the same offense, in the context of multiple punishments, the U.S. Supreme Court established the following test:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).
This test, which has been codified in Kentucky,5 is essentially whether either offense is included in the other.
[A] subsequent prosecution must do more than merely survive the Blockburger test. As we suggested in Vitale, the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.
Id., at 721, 110 S.Ct. at 2093, 109 L.Ed.2d, at 564. Cf. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).
The Court has not, however, supplemented the Blockburger criteria when the issue is multiple punishments imposed in a single trial. See Ohio v. Johnson, supra; Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). It has even said that in such cases, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983).
This Court holds the Kentucky Constitution superordinate to legislative intent. Moreover, we have at times, in a series of multiple punishment cases, inclined to the view that a single impulse or a single act constitutes but one offense.6 This view of
Although the facts were very different, the situational posture in Hamilton v. Commonwealth, Ky., 659 S.W.2d 201 (1983), was closely analogous to that in the present case. Hamilton was convicted of both rape and incest for a single act of sexual intercourse with his ten-year old daughter. Clearly, neither offense was included in the other. The father-daughter relationship necessary to the offense of incest, was extraneous to the charge of rape; the age of the victim, very material to the non-consent element of rape, was immaterial to incest. Departing from strict application of Blockburger, we reversed one of the convictions on double jeopardy grounds.
In Jackson v. Commonwealth, Ky., 670 S.W.2d 828 (1984), we held that a conviction for theft of property precludes a simultaneous conviction for knowingly receiving (the same) stolen property. In reversing, we emphasized that the defendant had been twice convicted for the same act.
In Polk v. Commonwealth, Ky., 679 S.W.2d 231 (1984), we affirmed convictions for burglary in the first degree and assault in the first degree. Apart from separate elements, these offenses involved separate acts:
The question is whether in each offense there are additional acts of criminal misconduct which are unnecessary to the commission of the other offense. [Emphasis added.]
Id., at 233. The burglar‘s stabbing the home dweller was an additional act constituting the separate offense of assault. Polk effectively substituted the requirement of additional acts for the additional facts of Blockburger, although the different standard did not alter the result.
In Wilson v. Commonwealth, Ky., 695 S.W.2d 854 (1985), we affirmed multiple convictions for conspiracy to commit robbery in the first degree and accomplice to assault in the second degree. It was again clear that the offenses involved multiple acts. We quoted the “additional acts of
By a unanimous decision in Jordan v. Commonwealth, Ky., 703 S.W.2d 870 (1986), we affirmed separate convictions for burglary and robbery, and held that a guilty plea to the included offense of theft does not attach jeopardy to a prosecution for robbery, although the theft conviction must fall. Apparently aligning our course with that of the U.S. Supreme Court, and relying on Blockburger, Missouri v. Hunter, supra, and Ohio v. Johnson, supra, we “noted” the identity of the Kentucky and United States double jeopardy protections, and stressed the distinction between single- and multiple-prosecution cases. On the other hand, it may be noted that the outcome, if not the rationale, was as consistent with the additional acts approach as with the additional facts standard. Interestingly, we quoted the following language from Blockburger:
The distinction stated by Mr. Wharton is that “when the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all united in swelling a common stream of action, separate indictments lie.” Wharton‘s Criminal Law, 11th ed. § 34. Or, as stated in note 3 to that section, “The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately ... if the latter, there can be but one penalty.”
Id., 703 S.W.2d at 873; Blockburger, supra, 284 U.S. at 302, 52 S.Ct. at 181.
Next came Wager v. Commonwealth, Ky., 751 S.W.2d 28 (1988). Quoting the venerable Blockburger rule and
Then, in Jones v. Commonwealth, Ky., 756 S.W.2d 462 (1988), we again abandoned strict adherence to the traditional “different facts” test. We held that conviction for robbery prohibits conviction for possession of the stolen property, even though each offense contains elements not common, and even though the charges are tried together. While we concluded that possession of stolen property is, like theft, an extra-statutory included offense of robbery, our reasoning was imbued with the idea that a single act constitutes a single offense. From Wharton via Blockburger and Jordan: “[W]hen the impulse is single, but one indictment lies....” Id., at 463. From Milward, Kentucky Criminal Practice, § 5.07 (1984):
Section 13 of the Kentucky Constitution, which prohibits an accused from being placed in double jeopardy for the same offense, prohibits the Commonwealth from carving out of one act or transaction two or more offenses.
Id., at 463. Our interpretation of
The Commonwealth is permitted to carve out of a single criminal episode the most serious offense, but not to punish a single episode as multiple offenses.
Id., at 463.
Our recent decision in Smith v. Lowe, Ky., 792 S.W.2d 371 (1990) is only tangentially relevant here, but we note it for completeness’ sake. There we held that the collateral estoppel element of the double jeopardy principle, as codified by
Like Hamilton, supra, the instant case presents a single impulse and a single act, having no compound consequences. By virtue of additional, circumstantial facts, the behavior was offensive to two criminal statutes. Considering these circumstances, and
The conviction and sentence under
STEPHENS, C.J., and GANT, LAMBERT, LEIBSON and VANCE, JJ., concur.
WINTERSHEIMER, J., dissents by separate opinion.
WINTERSHEIMER, Justice, dissenting.
I respectfully dissent from the majority opinion because Ingram has not been put in jeopardy twice for the same offense.
Ingram was convicted of trafficking in marijuana on premises located within 1,000 yards of a school building and for knowingly and unlawfully selling marijuana to a person under 18 years of age. He was sentenced to consecutive terms of imprisonment for selling marijuana to a minor near the school and he also received a sentence of twelve months in jail for possession of less than 8 ounces of marijuana for sale.
The majority attempts to bring this question under the purview of
Traditionally, the test for determining whether one act can be two charges is found in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). This test was developed in the context of multiple punishments imposed in a single prosecution. It has been used for almost 60 years in considering federal as well as state criminal matters. Many crimes have a universal and generic background which is common to all states. The mere fact that the statutory language prohibiting certain conduct designated as criminal may vary from state to state does not change the underlying criminal offense. The rationale of Blockburger, supra, and the cases following it are persuasive to any logical person who considers the impact of the crime on the victim as well as the accused.
Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, provides in part:
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.
Interestingly enough, the majority asserts that the U.S. Supreme Court has not supplemented the Blockburger standard when the issue is multiple punishment imposed in a single trial. The majority further asserts that the double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.
Kentucky has long followed the same reasoning as set forth in Blockburger and subsequent federal cases. See Wilson v. Commonwealth, Ky., 695 S.W.2d 854 (1985); Polk v. Commonwealth, Ky., 679 S.W.2d 231 (1984). Wilson, supra, states that the test focuses on the proof necessary to prove the statutory elements of each offense and that we must determine the minimum facts necessary to establish a completed offense under each statute and determine if an additional fact must be proved for each completed offense.
The conviction on each statutory offense requires proof of two additional elements.
I must respectfully disagree with the analysis of Jordan v. Commonwealth, Ky., 703 S.W.2d 870 (1986) made by the majority. Jordan, supra, said that the guilty plea of theft does not attach jeopardy to further prosecution for robbery because theft would be a lesser-included offense of robbery and it would impermissibly enhance the sentence and should be set aside. The same is true in Jones v. Commonwealth, Ky., 756 S.W.2d 462 (1988) and Jackson v. Commonwealth, Ky., 670 S.W.2d 828 (1984) because one of the charges was considered to be a lesser-included offense of the other.
That is not the case here. One offense is not the lesser-included offense of the other. This case is similar to Polk, supra, and Wilson, supra. The lengthy and learned survey of Kentucky cases made by the majority calls attention to the fact that a majority of the court has been selective in applying a merger or course of action impulse theory. It would appear that the court has employed a case-by-case approach in the cases surveyed by the majority.
The revered Wharton treatise on criminal law indicates that the fifth amendment to the federal constitution has many state constitutional provisions which are comparable and clearly states that the notion of former jeopardy has its basis on the philosophy that “no person shall be subject for the same offense to be twice put in jeopardy.” § 54 Wharton‘s Criminal Law (14th ed. Vol. 1, p. 274). Wharton further expresses the view that the federal provision is applicable and binding on the states through the Fourteenth Amendment. The underlying idea of the protection from double jeopardy is a restraint on courts and prosecutors. “The legislature remains free to define crimes and fix punishments;
but once the legislature has acted, courts may not impose more than one punishment for the same offense, and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” § 54, p. 276 of Wharton‘s.
The facts of this case, barely noted by the majority opinion, clearly demonstrate why the legislature adopted two different statutes to punish two separate acts of criminal behavior. Ingram admitted to keeping marijuana for his own use but denied ever selling anything to the minor. The minor testified that he went to Ingram‘s home and bought two marijuana joints from him. The minor stated that he was asked for and paid $4.00 for the marijuana and that he smoked the joints which were rolled in the same white paper as were the 69 marijuana cigarettes later found by the police in Ingram‘s home. The minor testified that he knew the joints were marijuana and that he got high. The police also found cigarette papers, scales and scissors which were used in the production of marijuana cigarettes and a police radio scanner in their search of Ingram‘s home. The 69 marijuana cigarettes were found in a china cabinet where, according to police, the minor said Ingram got the marijuana he sold to the minor.
The fact that Ingram was 52 years old and sold marijuana to a 16 year old juvenile was enough to satisfy
I must respectfully disagree with the view of the majority that
Kentucky has long held that there can be different parts in a continuing criminal transaction which are separate offenses and may be separately prosecuted. The rule that a single criminal action cannot be split into separate offenses is not necessarily applicable if different parts of a continuous criminal transaction or series of acts are separate offenses and can be separately proved. Newton v. Commonwealth, 198 Ky. 707, 249 S.W. 1017 (1923).
I would affirm the conviction in all respects.
KENTUCKY CENTER FOR THE ARTS CORPORATION, Movant, v. Hendrik J. BERNS, Respondent. and Hendrik J. BERNS, Movant, v. KENTUCKY CENTER FOR THE ARTS CORPORATION, Respondent.
Nos. 89-SC-898-DG, 90-SC-057-DG.
Supreme Court of Kentucky.
Dec. 27, 1990.
As Modified Jan. 17, 1991.