*1 Here, is undis- the evidence guilty gree perjury. of jury’s finding Appellant verdict rather exposed that the truth was Perjury; penalty puted set a Second-Degree See falsity retracted. of than the for conviction Second-De- law;25 and gree Perjury by as authorized 523.090. a final of conviction impose judgment affirm the decision of I would jury’s
that reflects the first verdict and circuit court. Appeals of and the sentencing trial court’s decision.
IV. CONCLUSION reasons,
For the above we reverse of and re- Appeals
decision of the Court
mand this matter to the Letcher Circuit judg- it the final
Court for to: vacate (fol- February ment entered LAWSON, Appellant, K. Robert trial) lowing imposing the second five year Perjury; First-Degree sentence for 24, 1994 vacate its order of October Kentucky, COMMONWEALTH
“declaring hung jury and mistrial of the Appellee. case”; accept trial of this [first] No. 2000-SC-0024-TG. jury’s finding Appellant guilty first verdict Second-Degree Perjury; ap- set an Kentucky. Supreme Court Per- propriate penalty Second-Degree Sept. 532.055(5); jury in accordance with KRS judgment enter a final of conviction jury’s and sentence that reflects the first
verdict and the trial court’s decision as to appropriate
an sentence.
LAMBERT, C.J.; COOPER, GRAVES, STUMBO, JJ.,
JOHNSTONE concur.
WINTERSHEIMER, J., dissents
separate opinion. Justice,
WINTERSHEIMER,
dissenting.
I ma- respectfully must dissent from the
jority under opinion signing, because
oath, indigency affidavit of consti- contemplat- proceeding
tutes an official Chapter
ed KRS 31.120(6), clearly states legislature person
intent of the is that on an affida-
who makes false statement subject prosecution
vit is for first-de-
25. See KRS *2 BACKGROUND
II. FACTUAL 14, 1999, February On step-uncle cars at his employed to detail dealership. That Sharp’s used car Jim *3 was taken Pontiac Firebird night, Sharp’s permission. without from the lot Jerry Hol- County Deputy Laurel Sheriff Maurer, Karen Assistant Public Advo- patrol evening on routine lon was cate, Advocacy, Department of Public Firebird when he a 1986 Pontiac observed Frankfort, Appellant. for Counsel Deputy the road. Hollon speeding down Chandler, III, General, Attorney A.B. marked vehicle’s siren and engaged Nelson, Attorney D. Assistant Matthew in lights attempt an to alert flashing General, General, Attorney Office of Crim- pull to the automo- driver of the Firebird Division, Frankfort, inal Appellate Counsel Instead, fled, speed- bile over. driver Appellee. for running lights, violating traffic and ing up, Deputy pursued Hollon discipline. lane KELLER, Justice. joined and other officers soon the Firebird in the pursuit. I. INTRODUCTION chase, County A Laurel Circuit Court con- the Firebird reached During the (100) Fleeing Appellant First-Degree victed and speeds of between one-hundred (125) Felony Receiving or Evading Police and miles twenty-five one-hundred and Property, Appellant eligible Stolen found hour. It traveled on Interstate 75 per sentencing First-Degree for enhanced as a grass in the medi- where made U-turn (PFO), Felony Persistent Offender and Hoping to an and reversed direction. recommended consecutive terms of twelve stop, the force the driver of the vehicle to years and six months imprison- police up rolling set roadblock. however, ment for each offense. At final driver, sentenc- attempted pass to lane, ing, the trial court sentenced con- emergency roadblock in the lost offense, years ten and trol, or- rail. The guard and crashed into the consecutively dered the sentences to and landed car became airborne twenty for a total sentence of car opened median. The driver door imprisonment. Appellant appeals thus nearby woods. and ran into matter-of-right.1 this as a After a testified that he saw the Deputy Hollon record, review of the we affirm during the U- profile driver’s twice—once convictions PFO-enhanced the driver exited the again turn and when sentences, year judgment but reverse the description broadcasted a Firebird —and the extent that it orders those terms of police over the radio. Within the driver consecutively to run and re- imprisonment (45) minutes, police two state forty-five court for a new mand the case to the trial who apprehended Appellant, officers at which a will sentencing hearing by description given Deputy matched the make a recommendation as to Hollon, nearby gas at a station. (10) year serves his ten sen- First-Degree was indicted for consecutively, tences Police, Felony Receiv- Fleeing Evading part. whole or 110(2)(b). Ky. Const. ing Property, Stolen being First- “it is duty judge of the trial Degree Felony Persistent prepare Offender. At and give instructions on the whole trial, the Commonwealth relied upon the ... [including] law case instructions testimony Deputy Hollon and the owner applicable every state of the case dedue- of the vehicle. Appellant’s primary de- supported ible or to any extent fense to the charge was that Deputy Hol- testimony”;2 a defendant lon was mistaken in his identification. Ap- “a right every has to have issue of fact that, pellant testified during the time that raised the evidence and material to his Deputy Firebird, chasing Hollon was defense submitted to the jury proper he hitchhiking picked instructions,”3 and was up by the trial court in- should “ strangers who robbed him and left him struct as to ‘only lesser-included offenses *4 if, beside the road evidence, when he refused to smoke considering totality of the marijuana Appellant with them. testified jury might have a reasonable doubt as that he was attempting girl- to call his guilt greater the defendant’s of the of- friend for a fense, ride home when the police yet beyond believe a reasonable apprehended him gas at the station. doubt that he is guilty of the lesser of- ”4 In judice, fense.’ the case sub we find The found guilty of the that the trial properly court denied Appel- offenses, indicted found eligible requested lant’s lesser-included offense in- for enhanced sentencing First-Degree as a structions. PFO, recommended enhanced sentences of (6) years twelve and six months for offense, 1. recommended SECOND-DEGREE FLEEING
two AND consecutively sentences for a EVADING total twenty-five sentence of years. Jury’s charge of First- Grand At sentencing, final the trial court reduced Degree Fleeing Evading or Police read: each sentence to and or- That on or about the 14th of Febru- dered the two sentences to run consec- 1999, ary, in Laurel County, Kentucky, utively a total sentence of twenty defendant, the above acting named alone years. appeal This follows. others, inor concert with committed the Fleeing offense of or a Police Evading III. ANALYSIS Degree by Officer the First operating a motor public highways vehicle on the A. LESSER-INCLUDED OFFENSE high at rates of speeds exceeding [sic] INSTRUCTIONS mph 100 and in the of fleeing course Appellant alleges that the trial created a substantial risk of harm to court by failing erred to instruct the person, another and all such acts com- it could return verdicts as to the fleeing mitted while evading from or lesser-included misdemeanor offenses of police officer!.] Second-Degree Fleeing Evading or Police and Unlawful Use of an Automobile. charged First-Degree We The indictment thus analyze allegations both of error in Fleeing Evading accor or Police as defined 520.095(1)(a)(4): principles dance with the well-settled that: KRS Commonwealth, Commonwealth, Taylor v. Ky., 4.Gabow 995 S.W.2d 34 S.W.3d 355, 360 (2000) (quoting Houston v. Common- wealth, (1998)). 975 S.W.2d Id. wantonly or knowingly That he B. fleeing or evad- guilty A is person stop his a direction to disobeyed degree: police in the first ing vehicle, which direction motor (a) When, a motor ve- operating while he person who given flee, or hicle with intent to elude officer; police recognized to be wantonly knowingly diso- person or AND or her beys stop a direction to eluding fleeing or That his act of C. vehicle, given by person motor created a substantial caused or officer, recognized police to be a injury or physical risk of serious following at one least or serious any person death conditions exists: injury property.6 the trial court alleges eluding, per- or By fleeing it failed to instruct erred when cause, or creates sub- son is the offense misdemeanor to the lesser-included risk, physical of serious stantial Evading Po- Fleeing or Second-Degree injury person or death to 520.100(1): lice defined KRS property[.]5 fleeing evad- guilty A person *5 jury when, trial court’s instruction to the degree in the second ing police language tracked the of KRS with in- a motor vehicle operating while 520.095(1)(a)(4): flee, person the know- tent to elude or recognized wantonly disobeys a ingly or NO. 3 INSTRUCTION vehicle, given by a stop to direction
Firsir-Degree Fleeing Evading or Police peace a officer.7 recognized to be person guilty of You will find the Defendant Evading or Po- Second-Degree Fleeing Police First-Degree Fleeing Evading or First-Degree felony from the lice differs if, if, only you under this Instruction of one of presence in that “[t]he offense beyond believe from the evidence a rea- forth in [KRS factors set aggravating following: sonable doubt all of the 520.095(a)(1) (4) enhances the offense ]— county A.That in this on or about a D A misdemeanor to Class from a Class 14, 1999, February within 12 circum- only aggravating felony.”8 As set finding before the to this case is the one months stance relevant herein, 520.095(l)(a)(4) e.g., “by operated indictment he a forth — cause, is the eluding, person fleeing motor vehicle with the intent to or risk, phys- of serious elude; substantial or creates flee or 520.095(1). of limitations. month statute 5. KRS that, 500.050(1). because We also observe jury instruction substan- 6. The trial court’s support the con- at trial would no evidence tially specimen instruction con- mirrored the actually caused serious clusion Cooper, Kentucky to tained in 1 Juries, Instructions persons proper- injury death to or physical or Co., (Anderson Publishing § 7.36A (C) court's instruc- ty, Paragraph of the trial (hereinafter, "Cooper”), al- Cum.Supp.2002) ag- theory of omitted that tion should have though before the the "within 12 months a "created gravation and include language finding herein” of the indictment theory. substantial risk” (A) Paragraph of the trial court's instruction and, specimen instruction differs from the 7. KRS appears unnecessary be- important, more Evading First-Degree Fleeing or Police cause 7.36C, comment. Cooper, supra 6 at subject twelve note felony to a is a offense ical injury any person or death to or prop- sped through an intersection while disre- erty” determine whether traffic garding weaving control devices and —we was entitled a lesser-included offense stopped Firebird between vehicles instruction of Second-Degree Fleeing path. Finally, or his attempted the driver Evading by examining Police police whether avoid a roadblock passing jury lane, could have possessed reasonable roadblock in an emergency and the (C) doubts as Paragraph of the trial crashing Firebird became airborne after court’s instruction but nonetheless into a guard believed rail. We can envision no (A) facts described Paragraphs challenge reasonable to the conclusion (B) Here, beyond a reasonable doubt. actions created substantial Commonwealth physical injury introduced no evidence to risk of serious or death —to permit jury to conclude that the police driver’s other motorists and officers in his Therefore, actually physical path, actions caused in- not to mention serious himself. any person properly or death to we conclude that the trial court or serious injury Appellant’s request denied for it to in- property,9 inquiry and the thus struct becomes as to the lesser-included could have had Second-Degree Fleeing offense of reasonable doubts as to whether the flee- Evading Police. ing driver’s conduct created a substantial risk of such results. 2. UNAUTHORIZED USE OF that, recognize we in the vast AN AUTOMOBILE cases, majority question of whether Jury’s charge Felony The Grand an actor’s fleeing evading created a Receiving Property Stolen read: substantial subject risk such results is day February, or about the 14th [O]n and, disagreement, reasonable there- *6 1999, in County, Kentucky, Laurel fore, the misdemeanor typical- offense will defendant, acting above named alone or ly necessary be a lesser-included offense of others, in concert with committed the Police,10 First-Degree Fleeing Evading or Receiving Property offense of of Stolen we find the in evidence this case over- by receiving Value of or More $300 whelming and conclude that no could possessing 1986 Pontiac Firebird reasonably have believed that automobile of the value more of or $300 fled or evaded police but did not create a Sharp[.] which had been stolen from Jim substantial risk physi- of death or serious charged The indictment thus the offense of injury cal person. The stolen Fire- Receiving Property Stolen as defined bird speeds up was driven at of to 125 the version of then in KRS 514.110 force: per miles hour—almost twice the legal limit speed highway. even on an interstate A person guilty receiving is of stolen occasion, receives, retains, more than On one the driver he property when Law, Fortune, given Kentucky § the instructions in this case H. Criminal 15- specimen 2(f) (LEXIS and the instructions in Justice Coo- Supp.). Interpretation of per’s injury prop- is, however, treatise refer to "serious phrasing this curious unneces- erty,” reading a literal of the statute would sary to our resolution of this case because we require jury finding Defendant's act solely resolve the relevant issues in reference fleeing evading of or created a substantial risk physical inju- to the substantial of serious risk physical injury prop- of "serious or death” to ry persons. or death to erty. Some observers have this noted phrasing largely light incoherent in of the 7.36C, Cooper, supra 6 at comment. note 500.080(15) physi- KRS definition of "serious injury.” cal & See Robert G. Lawson William had the Defendant D.That when of property of movable disposes Pontiac of the possession has been it knowing another Automobile, a val- it had stolen, is re- Firebird property unless the retained, ceived, of with or more. disposed ue of $300.00 it the owner. intent to restore the trial court argues that prejudice when erred to his substantial property is a Class Receiving stolen as to Unautho- failed to instruct of unless the value A misdemeanor as a lesser- of an Automobile rized Use hundred dol- is three property offense of the indicted included offense ($800) case or more ... which lars Property. Felony Receiving Stolen D felony.11 it is a Class of Unautho- defines the offense 514.100 instruction to the The trial court’s Automobile: of an rized Use language prior of the version tracked the unauthorized guilty A person is 514.110: propelled automobile or other use of an 4NO. INSTRUCTION operates, ex- knowingly when he vehicle Property Receiving $300 Stolen —Value over, uses or otherwise ercises control or More of the own- without consent such vehicle guilty You will find Defendant possession thereof.12 having legal er this Receiving Property under Stolen to KRS Commentary The Penal Code if, if, you believe Instruction that the offense of Unau- explains 514.100 beyond the evidence a reasonable from provides Automobile of an thorized Use following: all doubt that does for conduct criminal sanctions county or about A. That this Kentucky Penal level of the not rise to the 14,1999, and before the February Code theft offenses: herein, Indictment finding of the primarily directed This section is possession had of a 1986 Ponti- he riding” generally committed against “joy ac Firebird automobile which be- necessary It is because by youngsters. Sharp; longed to Jim theft amounting it covers conduct B. That said 1986 Pontiac Firebird chapter. of this other sections under *7 had been stolen from automobile deprive the own- There is no intention the Defendant Sharp Jim and appropriate or to property er of his when property knew it was stolen property.13 it; he had of possession possession have That he did not C. observed Appeals of As Firebird auto- Commonwealth,14 of the 1986 Pontiac of the offenses Logan v. the intention of re- mobile with Property Unautho- Receiving Stolen owner; rightful storing it to its can be distin- of an Automobile rized Use to the requirements as by the guished AND Assem- 12. KRS The 2000 General 11.KRS 514.110. the cul- bly KRS 514.110 to extend amended persons "having pable include mental state to (Banks/Bald- Commentary to KRS 514.100 13. stolen,” believe that it has been reason to 1974). win provide Ky. and to Acts. ch. 2000 receiving proper- penalties stolen separate Ky.App., S.W.2d 497 anhydrous involving ammonia. ty offenses Acts, 233, § Ky. ch knowledge defendant’s as well as the de- bile without the owner’s consent. As the fendant’s intentions as to the automobile: Appeals Logan, Court of did in “[w]e do any not think there evi-
“Unauthorized use” involves the use was substantial aof vehicle without the consent support requested dence at trial A instruction, owner. conviction for of sto- receipt and we affirm its denial.”16 hand, len property, on the other re- short, In absolutely we find no evidence quires the prove Commonwealth to upon reasonably which a could base a prop- the defendant both knew that the Appellant belief that intended to return erty was stolen and intended not to re- proper Appellant the vehicle to its owner. store it to its owner.15 argues that such an inference could be words, In other Felony offense of Re- upon based evidence that: the vehicle ceiving Property requires proof Stolen member; family was taken from a three elements that the offense of Un- lot, an car employee of the had authorized Use of an Automobile does not: permission to drive certain vehicles on the (or, the defendant must know under the (a Ap- lot contention that does not assist know) amended, statute as have reason to because, if pellant permission he had —or that the property; automobile is stolen permission believed he had drive the —to possess defendant must not the vehicle vehicle, he would have a defense to both with the intention of returning it to its offenses17); greater and lesser owner; rightful the vehicle must eventually that the Firebird was returned have a value of three hundred dollars Appellant’s “spin” to its owner. We find ($300) or recognize more. We highly disingenuous. of the evidence “knowing” mental states for the offenses testimony Appel- trial demonstrated that overlap substantially defendant who —a permission lant did have to drive one drives another’s vehicle when he knows it upon vehicle on the lot'—a vehicle which he will, to be stolen property almost defini- making payments installment —but tion, “knowingly operate! ... such vehi- ] that vehicle was not the Firebird. Fur- cle without consent of the owner having ther, factually while correct And, legal possession thereof.” as the value his statement that the Firebird was even- possessed vehicle is irrelevant to the owner, tually returned to its the return offense Unauthorized Use of an Auto- place took months after the incidents mobile, we assess whether Appellant was indictment, gave rise to this and law en- requested entitled to the lesser-included forcement officers'—not by examining offense instruction —re- course, Appellant turned it. Of is unable permitted the evidence would have point testimony his own to form Paragraph reasonable as to doubts support the lesser-included offense instruc- (C) i.e., of the trial court’s instruction — *8 tion he role in the because disclaimed the reasonably evidence would and, such, if pursuit, “testimony, as his supported Appellant have a belief that pos- believed, him to exonerate appear would sessed the vehicle with the intention of any criminal rather con- wrongdoing, than restoring it to its owner—but otherwise a vehi- beyond a vict him of unauthorized use of conclude reasonable doubt that Appellant knowingly operated an automo- cle.” Id. at Id. 15. 498. 17. Id. Id.
16. evidence. in- the “intent be believe Commonwealth’s may have held that We find no error. is We person from a actions because ferred presumed logical proba- to intend the and conduct, his and consequences of
ble
B. SENTENCING PHASE
may
mind
inferred
person’s state of
be
At
the combined PFO/Truth-in-
following
and
the
preceding
from actions
Probation
Parole
Sentencing phase,
and
case,
charged
Appel-
offense.”19 In this
the
on
Tye
Josh
testified
behalf
Officer
argument
the lesser-included of-
lant’s
for
regarding
enhance
PFO
Commonwealth
myopically ignores any of
fense instruction
ment,
and
penalty ranges,
the relevant
after
turned on
Deputy
the events
Hollon
of
parole eligibility
the
Appellant’s
for
Even if
assume
lights
his
siren.
we
objection, Officer
Appellant’s
fenses. Over
may
origi-
that
arguendo
Appellant
have
testified, erroneously,
maxi
that the
Tye
merely
the
with
nally
“borrowed”
Firebird
jury
imprisonment the
mum sentence of
step-
returning
the intention of
to his
crimes,
jury
if the
Appellant’s
fix for
could
know-
anyone
uncle’s used car lot without
imprisonment
the maximum term of
chose
which, itself,
(2)
theory
on noth-
ing
rests
and ordered the two
for each offense
—a
speculation
forty
than
and the
was
ing
pure
consecutively,
more
to run
sentences
fact,
years.
that the
owner
In
the maximum term
Appellant’s
fact
car’s
Appellant
receive
imprisonment that
could
step-uncle Appellant
unquestionably
—
felony
his Class D
offenses enhanced
when
his
changed
began
his intentions
he
twen
by
First-Degree
PFO status was
attempt to avoid detection.20 After hear-
(20) years.21 During
ty
The Common
ing
Appellant
evidence
undertook
Phase
PFO/Truth-in-Sentencing
wealth’s
flight
literally,
Firebird
reckless
—
attorney
closing argument,
prosecuting
point
police
became airborne at one —from
range
functional
explained
penalty
that the
authorities,
vehicle
actually abandoned the
of both
light
PFO-enhancement
median,
foot,
rea-
escaped
no
decision
the two
jury’s
as whether
jury
sonable
could conclude that
or con
sentences were to
to its
intended
return
Firebird
secutively,
forty
was from
owner
time
rightful
during
entirety of
that,
jury
while he
years and advised
thus
operated
he
the vehicle.
think
the maxi
did not
deserved
seeks an instruction on a
offense
lesser
penalty,
mum
he would recommend
supported by
no
presented
evidence
twenty
fix a
penalty
total
either
himself or
the Common-
years.
Logan,
As
case in
wealth.
was the
jury could
believed
have
either
Com-
Appellant’s penalty
fixed
evi-
monwealth’s evidence or
years and six
months for
twelve
dence,
conviction,
supported
but none of that evidence
the sen-
and indicated that
of an
total of
consecutively
an instruction on Unauthorized Use
should run
tences
—a
de-
twenty-five
years. Appellant
Automobile. The trial court
filed
properly
for a
trial which he advised
Appellant’s requested
nied
lesser-included motion
new
fell
instruction,
jury’s
that the
and the
chose to the trial court
sentence
offense
532.080(6)(b);
Commonwealth,
532.110(1)(c);
Stopher
S.W.3d
21.KRS
*9
(2001).
Commonwealth, Ky.,
802
Young v.
968 S.W.2d
675
223.6,
4(a)
20. Model Penal Code
comment
1985).
(Official Draft and Revised Comments
permissible range,
that,
outside the
and
intent. Appellant
the
reasons
on
based
error,22
Commonwealth
the
the
conceded
but
information given
erroneous
to the
to “remedy
prob-
asked the trial court
the
jury during
PFO/Truth-in-Senteneing
the
lem reducing the defendant’s sentence
phase, the
jury
considering
believed was
felony
each
years,
enhanced D
to ten
range
between
penalties
“goalposts” of
and then running those sentences consecu-
(10)
ten
minimum
years
possible sen-
—the
tively.” The trial court did as the Com-
(40) years
tence—and forty
maximum
—the
monwealth
suggested,23
the trial
penalty,
to the
according
incorrect infor-
court’s final
sentenced
judgment
Appellant
given
jury. Appellant
mation
to the
ob-
to the minimum-PFO-enhanced sentence
jury
serves that the
refrained from select-
(10)
offense,
years
of ten
for
but
ing the
punishment,
maximum
and instead
(2)
the
ordered
two
sentences to
con-
(25)
midpoint
twenty-five
selected the
—
secutively, for a total sentence of twenty
years.
maintains
that the trial
(20) years.
court’s modification of the
im-
sentence is
proper
ignored
the trial
because it
the jury’s
contests
court’s re-
deci-
sentence,
sentencing
violating
rights
impose
sion not to
the maximum
due
twenty
the
process
argues
encourages
us to reduce his
year
contrary
jury’s
years
sentence is
to the
sentence to twelve
and six
parties
appeal
currently
consecutively.”
to this
the
address
and others
Id.
evidentiary
the
error
occurred
suggest
when
Accordingly,
we
a more infor-
permitted
the trial
the
court
Commonwealth
mative
verdict
and correct
form in this case
factually
to introduce
incorrect
information
would read:
regarding
penalty range through
the available
We,
jury,
the
recommend that the sentences
testimony
of a Probation and Parole Offi-
fixed for the Defendant under Counts 1 and
cer, we
observe that
trial court's PFO/
(at
concurrently
served
above shall be
Truth-in-Sentencing
Phase instruction on
time)
(one
consecutively
begin
same
sentencing instruction
concurrent/consecutive
other),
completion
after the
of the
in whole
similarly
correctly
and verdict form
did not
part,
or in
as follows:
responsibility.
inform
juiy
of its
Instruc-
tion
6No.
read:
of_years,
For a total sentence
your
You will
further recommend
ver-
exceed, however,
twenty
a total sentence of
punishments
you
dict whether the
which
(20) years.
have
Defendant
fixed for the
should be
case,
Upon resentencing in this
the last
(at
time)
concurrently
served
the same
("not
”),
phrase
may
...
to exceed
be omitted
(one
consecutively
begin
after the com-
Appellant's
because consecutive sentences for
other).
pletion of the
(10) year
two
sentences cannot exceed
portion
relevant
verdict form read:
twenty
year
maximum.
As
to: CONCURRENT—CONSECUTIVE
RECOMMENDATION:
that,
23. We observe
in order to reach a lawful
We,
jury,
punish-
that the
recommend
sentence,
imposed
court could
the trial
have
ments fixed for the Defendant above be
the twelve
and six months that
served as follows:
Appellant's
recommended
each of
(CIRCLE ONE)
crimes,
(5) years
five
but ordered
of the sen-
CONSECUTIVELY
CONCURRENTLY
tence
for one
convictions to run
the other sentence.
with
In-
FOREPERSON
stead,
exercised
the trial court
its discretion
previously
As we have
indicated
Common-
532.070(1) modify
jury's
under
(1999),
Pelfrey, wealth v.
S.W.2d 460
judge
sentence in a situation where the trial
proper
instruction and verdict form should
imprison-
opinion
"is of the
a sentence of
required
advise the
"that
it is not
necessary
ment
that the
is
but
maximum term
recommend
be
that all sentences
run all con-
unduly
consecutively,
fixed
currently
may
harsh[.]”
but
or all
that it
recommend that
sentences be run con-
some
*10
proving preju-
of
satisfy
burden
Fo-
Although
language
certain
months.
of
pre-
to
error because
appears
comparable
v.
to a
ley
Commonwealth24
dice as
Appellant’s
such a modification of
de-
authority
scribe
court’s ultimate
to
trial
sentences, we hold that such
consecutive
felony sentences
multiple
cide
in this case
inappropriate
would be
relief
consecutively,28
concurrently or
run
its
court has
because the trial
exercised
Commonwealth,29 a
of
majority
v.
Stoker
532.070(1) modify
to
discretion under KRS
rejected the contention errors
this Court
charge,25
jury’s
as to each
sentences
jury instruc-
in concurrent/consecutive
ordering
and
convictions
trial
because the
will be harmless
tions
mini-
concurrently, we would
a
impose
run
decision.30 This
makes
ultimate
court
(10) years
which
mum sentence of ten
recognized
jury’s
that a
recom-
has
aware,
rejected.
also
but
We
or
as to concurrent
consecu-
mendation
between an instruc-
perceive
difference
sentencing
meaningless
far from
tive
jury of
tional error that fails to inform the
forma,
jury’s
that the
recom-
pro
or
and
power
the full
of its
to recommend
extent
has
regard
“signifi-
this
mendation
concurrently
partially
that sentences run
cance, meaning,
importance.”31 We
and
consecutively
the eviden-
partially
and
that
in this
believe
declare
error
tiary error in this case that
the effect
has
effectively
harmless would
delete
case
jury’s
distorting
conception
532.055(2)’s requirement
that “[t]he
Nonetheless,
sentencing range.
available
recommend whether the sen-
jury shall
we believe that
to a
is entitled
or
concurrently
shall be served
tences
different form of relief.
consecutively”32
ignore the
and would
jury’s important
sentencing
role in the
that trial
recognize
we
minimum
PFO-en-
process. Because
authority
a final
courts have the
make
of Appellant’s
sentence for each
hanced
decision whether
defendant’s sentences
(10) years,
is ten
it is an incon-
offenses
concurrently
consecutively,26
are to run
could
fact that the trial court
trovertible
juries’
determinations as to
twenty
sentenced
have
recommendations,27
are merely
issue
we
regardless of the sentences
decline the
Commonwealth’s invitation
fixed
and the
each conviction
find that the error in this
is harm
case
as to whether
jury’s
recommendation
less.
this
held that a
While
Court has
concurrently
run
defendant in an
11.42
could
sentences should
RCr
context
those
("Should
supra
Pelfrey,
22.
24.
Commonwealth v.
note
942 S.W.2d
28.
hand
consecutive
down
sentences
statutes,
range
are out of
the trial
(1992).
Ky., 828
29.
S.W.2d 619
power
duty
all
court has the
to declare
concurrently.” (emphasis
sentences to run
added)).
Pel
Id. at 627. See also Commonwealth v.
frey, supra
(distinguishing
note 22 at 462
Stok
er,
appeal,
post-
direct
from an RCr
11.42
23, supra.
25. See note
action).
conviction
532.110(1)
(“[Mjultiple
26. KRS
sentences
consecutively
as the
shall
Commonwealth, supra
v.
27 at
31. Dotson
note
at
sen-
court shall determine
the time
Commonwealth,
supra
also
931. See
Stoker
added)).
(emphasis
tence. ...”
note
532.055(2);
27. KRS
Dotson v. Common-
added).
532.055(2) (emphasis
32. KRS
wealth,
Ky.,
would have if recommended had deliber- First-Degree lant’s Fleeing or Evading Appellant’s ated punishment in reference Receiving Police and Property Stolen con- to the proper maximum penalty “goal- victions as well as the PFO-enhanced ten (20) post” twenty years. may While we — (10) year prison imposed sentences reasonably assume that the jury would conviction, but we reverse the judg- not have chosen the minimum penalty of ment to the extent that it orders that the years ten by recommending the min- two sentences run consecutively for a imum sentence on each offense to be total twenty years, sentence of (because and we served concurrently jury did remand the case to the trial court for a full have knowledge of the minimum pen- new sentencing hearing at which alty), jury we have no basis to assume that will make a jury recommendation as to necessarily would have chosen serves penalty maximum those sentences concur- twenty rently if possession consecutively, it was in part. of full whole or in complete information penalty about
range. jury The easily again could have LAMBERT, C.J.; JOHNSTONE and selected the midpoint of the range —fif- STUMBO, JJ., concur. (15) years. teen Although recognize we may COOPER, J., trial court again elect to in part concurs
sentence Appellant to a total sentence of dissents in part by separate opinion twenty years, we believe due process WINTERSHEIMER, which GRAVES and entitles to a jury recommenda- JJ., join.
tion as to whether the sentences for his COOPER, Justice, concurring part
convictions run concurrently or consecu-
dissenting
in part.
tively, and we also
jury’s
know that the
recommendation will be
considered
I concur in that portion
majority
the trial court
it
before
makes a final
opinion
Appellant’s
that affirms
convictions
decision. We thus
judgment
reverse the
and reverses his sentences because of the
to the extent
Appellant’s
orders
introduction of inaccurate parole eligibility
(10) year
terms to run consecutively,
However,
evidence.
I dissent from the
and we remand the case to the trial court
dicta in
opinion
that purports to amend
for it to conduct a new sentencing phase
by judicial fiat
provisions
two
of the Ken-
in accordance with Boone v. Common-
Code,
532.055(2)
tucky Penal
viz: KRS
wealth34 at which
jury
will recom-
and KRS
mend
whether the ten
year sen-
532.055(2)
tences for
two
convictions
provides,
inter alia:
fact,
In
the trial court could have
agree
sen-
unable to
as to the
sentence or
tenced
twenty
year
portion
to a
reports
term of
thereof and
judge,
so
to the
imprisonment
judge
impose
even
if the
was unable
shall
the sentence within
law.").
agree upon
range provided
elsewhere
sentences for the offenses after it
Appellant's
determined
PFO status KRS
532.055(4) ("In
the event that
rently or consecutively “in whole or in
part,” it would have been a simple matter
to have said so.
Finally, this whole issue is an exercise in
immateriality, for authorizing
piecemeal its recommendation will have no practical effect on this or other crimi McCLURE, Appellant, Ronald nal case. The maximum aggregate en hanced sentences for the offenses of which AUGUSTUS,
Appellant was Frank convicted Sheriff twenty years, of McCrack 582.110(1)(e), County, KRS 532.080(6)(b), Kentucky; en Board; Merit (ten the minimum is ten years Roberts, Chairman; and ten Donnie Gerald concurrently). Thus, served imposition Stewart, Member; Alston, Ronald consecutive sentences can occur Member; under Christopher Shea Nic 532.110(1), written, if kell, Member, Appellees. fixes the sentence for each conviction at No. 2001-SC-0028-DG. years. But if the desired sentence is more than ten but less than twenty years, Supreme of Kentucky. that sentence can imposed be within the Sept. framework existing statutory by simply of, scheme imposing a sentence As Modified Oct. e.g., years fifteen for each offense and ordering the sentences to be served con
currently. Nothing further is accom
plished by, e.g., ordering five of a ten
year sentence imposed for one offense to
run concurrently and the remaining five
years to run consecutively with the ten
year imposed sentence for the other of words, In
fense. other sentences for mul
tiple offenses can imposed be such a
way as to reach the desired aggregate
sentence judicial without resort to amend
ment of statutory Perhaps, scheme.