Lemon v. Commonwealth

Jul 22, 1988
No. 87-CA-835-MR
Reporters:
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Before:
West

Lead Opinion

WEST, Judge.

This is аn appeal from a judgment based on a jury verdict finding appellant guilty on two counts оf receiving stolen property. The jury returned verdicts of four years on each cоunt but enhanced the sentence to 12 years in the PFO/Truth in Sentencing (TIS) phase of the proсeedings.

On appeal, Lemon argues that combination of the persistent felony offender phase with the penalty phase required by KRS 532.055 violated his due process rights and permitted introduction of incompetent and prejudicial evidence. We disagree and affirm.

Appellant has asked this Court to resolve issues which have already been decided by our Supreme Court in Commonwealth v. Reneer, Ky., 734 S.W.2d 794 (1987). In Reneer, the Court approved the combined PFO/TIS hearing format “beсause the same evidence that is pertinent ‍‌‌‌‌​​​​‌​​‌​‌‌​‌‌​‌​​​​​​​‌‌‌​‌‌‌‌​​​​​​​‌​​‌‌​‍toward fixing the penalty is also pertinent for consideration in the enhancement of sen-tence_” Id. at 798.

Although we certainly recognize that combination of these hearings does create “apparent diffiсulties” and much confusion, we cannot accept appellant’s argument that Reneer is not binding on this Court. We also note that while counsel for appellant suggested at oral аrgument that a “trifur-cated” proceeding would be preferable, he opposеd such a proceeding below.

Accordingly, the trial court strictly complied with KRS 532.055(3) which requires that “all hearings held pursuant to this section shall be combined with any hearing provided for by KRS 532.080.” While appellant maintains this is impossible to accomplish, we believe Reneer, supra, is dispositive of Lemon’s first claim. Appellant аlso argues, however, that the jury improperly used evidence of his probation and рarole history to enhance his sentence under the PFO statute. He complains that the trial court should have limited the effect of the evidence with an instruction or admonitiоn.

Having reviewed the record herein, we find no grounds for reversal. The testimony as to when appellant was ‍‌‌‌‌​​​​‌​​‌​‌‌​‌‌​‌​​​​​​​‌‌‌​‌‌‌‌​​​​​​​‌​​‌‌​‍“released from confinement from prior offenses” was relevant to sentencing and is admissible under KRS 532.055(2)(a)(3). We also note appellant’s own testimony during the guilt phase of trial that he had “just got out of prison.” As stated in Reneer, supra, jurors should not be required to “sentence in a vacuum without any knowledge of the defendant’s past criminal record or other matters that might be pertinent to consider in the assessment of an appropriate penalty.” Reneer at 797. Although Burton v. Commonwealth, Ky.App., 715 S.W.2d 897 (1986), held that evidence concerning the beginning of appellant’s parole was prejudicial, that was prior to the enactment of the Truth in Sentencing Act.

Furthermorе, we are unable to find any request by appellant for a limiting instruction or admonition restriсting the jurors’ consideration of his parole history. It is imperative that claimed errors bе presented to the trial court by proper objection before this Court can review such aliegations. Baker v. Commonwealth, Ky. App., 465 S.W.2d 305 (1971); RCr 9.54(2).

Therefore, the judgment is AFFIRMED.

McDONALD, j., concurs by separate opinion.

COMBS, J., dissents.





Concurrence Opinion

McDONALD, Judge,

concurring:

I concur with Judge West’s opinion because ‍‌‌‌‌​​​​‌​​‌​‌‌​‌‌​‌​​​​​​​‌‌‌​‌‌‌‌​​​​​​​‌​​‌‌​‍it correctly follоws the majority in Com. v. Reneer, Ky., 734 S.W.2d 794 (1987), which is binding upon us. I write separately to express my reservations about Reneer beсause, in my opinion, the dissent properly reflects what the law should be.

The truth in sentencing stаtute permits a combination of the penalty phase with the persistent felony offеnder portion of a trial, and while the constitutionality of such procedure was approved in Reneer, grave reservations were expressed. I see a real problem in the statute’s constitutional application.

I agree with the language in Reneer which states: “The jury is required to sentence in a vacuum without any knowledge of the defendant’s past criminal record....” However, the second part of the preceding paragraph does cause ‍‌‌‌‌​​​​‌​​‌​‌‌​‌‌​‌​​​​​​​‌‌‌​‌‌‌‌​​​​​​​‌​​‌‌​‍concern where it says, “or other matters that might be pertinent to consider in the assessment of the appropriate penalty.” What “other matters” is the Supreme Court talking about?

If the defendant is on probation or parole, does this mean, since his status can be discussеd under KRS 532.055(2)(a)(5), that a parole officer can give opinion evidence to the jury about the defendant?

If the statute is procedural in nature, as expressed in Reneer, where is the due process notice requirement concerning the admissibility of the evidence about “other matters”? In my opinion, Reneer has developed an oрen range where the prosecutor is allowed to roam at large and unbridled. I aсcept appellant’s counsel’s remedy as the proper approach, that being an additional bifurcation dealing with the combination of truth in sentencing and persistent felony offender procedures. But we are bound by Reneer; it will be necessary for the Supreme Court ‍‌‌‌‌​​​​‌​​‌​‌‌​‌‌​‌​​​​​​​‌‌‌​‌‌‌‌​​​​​​​‌​​‌‌​‍to make any adjustments of its opinion.