Terry NICHOLS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
No. 90-SC-838-DG.
Supreme Court of Kentucky.
Sept. 24, 1992.
839 S.W.2d 263
“‘Natural condition of the land’ is used to indicate that the condition of the land has not been changed by any act of a human being....”
We have adopted a per se rule in circumstances where such a rule is inappropriate.
COMBS, J., joins this dissent.
Michael M. Losavio, Napier & Napier P.S.C., Paul J. Neel, Jr., Appellate Public Advocates, Louisville, for appellant.
Chris Gorman, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Crim. Appellate Div., Frankfort, for appellee.
This appeal is from a judgment and sentence of the circuit court which sentenced Nichols to a total of ten years as a result of his guilty plea to eleven counts of burglary. The principal issue is whether it was reversible error for the trial judge to refuse to recuse himself from the sentencing hearing. Other issues raised are whether there was a procedural defect in the judgment of sentence; whether it was reversible error for the trial judge not to impose concurrent sentences; whether evidence derived from the failed plea bargain should have been excluded and whether the sentence was an abuse of discretion by the trial judge.
Nichols, while in jail in Ohio, volunteered information regarding a series of unsolved burglaries in Boyd and Greenup Counties, Kentucky. Nichols reached a plea agreement with the prosecution in all cases and the prosecutor recommended a sentence of five years on each of the eleven counts to run concurrently. Nichols appeared in Greenup Circuit Court on January 25, 1989, and pled guilty to eleven counts of burglary in the second degree in violation of
However, before rendering sentence, the judge inquired of the prosecutor if the victims of the burglaries had been consulted in regard to the recommendation, and the prosecutor responded that he did not know. Upon learning that at least one of the victims had not been informed of the proceedings, the trial judge withdrew sentence and set the matter for trial. He advised the prosecution to contact the victims. Three of the eleven victims did not agree with the prosecutor‘s recommendation. The Greenup County Jailer was one of the victims dissatisfied. These three cases were then sent to a jury only for the purpose of recommending sentence and not for any fact finding of guilt. The jury recommended five year concurrent sentences on the three offenses and indicated that the sentences were to run concurrently with the other eight charges. At final sentencing on May 24, 1989, the trial judge ordered that the three counts run concurrently with each other but further ordered that those terms be served consecutively to the others for a total of ten years in prison. Nichols appealed the ten year sentence, but the Court of Appeals affirmed. This appeal followed.
Nichols argues that the trial judge should have recused himself because the sentence was motivated by the desire to please the local jailer. He maintains that there was clear bias on the part of the sentencing judge. He claimed that when the judge learned that one of the victims was the jailer, he allowed this person to object to the sentence. When the trial judge did render sentence, the final sentence was double the initial prosecution‘s recommendation and contrary to the recommendation of the jury.
Nichols asserts that
The record indicates that the trial judge directed the prosecution to contact all the victims of the burglaries and not just the jailer. Our examination of the record agrees with the view of the Court of Appeals. The expression of the concern by the trial judge that the victims of the crimes be informed of the prosecution recommendation does not provide a basis for reversible error based on bias, prejudice or personal knowledge as contemplated by an automatic or statutory recusal in
Clearly the record does indicate that the trial judge was concerned about the views of the victims, including the County Jailer. The trial judge said, “Well, I certainly don‘t want Mr. Salmons to be mad at the judge. If he, the jailer, thinks he ought to have more ... I‘m not going to give him more. I‘m not going to give him a fair trial.”
The mere fact that the jury recommended this sentence on three offenses which it heard and expressed a desire that all the sentences should be run concurrently is not controlling. A jury recommendation regarding whether sentences shall be served concurrently or consecutively pursuant to
The contention that the proceedings on January 25, 1989 amounted to a formal sentencing is without merit. There was no final order entered as a result of that hearing. The judgment on a plea and sentencing by a jury and final sentencing order was signed June 15, 1989 and entered June 20, 1989. It was from this document that the notice of appeal was filed on June 21.
His third argument is that the trial judge was required to impose the concurrent sentence recommended by the jury. Nichols claims that he relied to his detriment on assurances of the trial judge that it would impose whatever the jury recommended. A careful examination of the record does not indicate that any such promise was ever made by the trial judge. Under any circumstances, the trial judge was not required to follow the jury‘s recommendation regarding sentences. Cf. Dotson, supra.
The authorities presented by Nichols are unconvincing. Johnson v. Commonwealth, Ky., 609 S.W.2d 360 (1980), and Commonwealth v. Reyes, Ky., 764 S.W.2d 62 (1969) are factually distinguishable. A review of the record does not indicate that the trial judge misled the defendant in any way, and that the trial judge was not a party to the plea agreement because the prosecution arranged the bargain in this case.
A fair and careful reading of the comments by the trial judge in this case does not indicate that he committed himself to be bound in any way by the recommenda
Nichols next maintains that evidence should have been suppressed because the movant did not receive the sentence he bargained for. A careful review of the entire record shows that Nichols assumed the risk of his own multi-sentence imprisonment. The prosecution never wavered in its recommendation to the trial judge which was all that Nichols could possibly negotiate. The prosecution could not bind the trial judge in any way. There is no merit to this argument.
The final issue raised by Nichols is that the sentence was an improper unconstitutional abuse of discretion by the trial judge. This argument also has no merit. The trial judge has discretion to determine whether multiple sentences are to run concurrently or consecutively.
The Commonwealth throughout its appellate brief argues that counsel for Nichols has failed to observe CR 76.12(4)(c)(iv) in regard to the required statement about preservation of error. We must admonish appellate counsel to comply with all the rules of this Court regarding the presentation of appellate briefs and in particular with the requirements of the rule to state whether the question has been properly preserved for appellate review. However it should be noted that in regard to the argument regarding recusal, it is not required to preserve the error as noted in Commonwealth v. Carter, Ky., 701 S.W.2d 409 (1985). Also see Small v. Commonwealth, Ky.App., 617 S.W.2d 61 (1981) in this regard.
It is the holding of this Court that the circuit judge was not required to sua sponte recuse himself pursuant to
The decision of the Court of Appeals is affirmed.
LAMBERT, REYNOLDS, SPAIN and WINTERSHEIMER, JJ., concur.
COMBS, J., dissents by separate opinion in which STEPHENS, C.J., and LEIBSON, J., join.
COMBS, Justice, dissenting.
Respectfully, I dissent.
I.
The trial judge ought to have surrendered the case pursuant to the timely motion of recusation.1 The Commonwealth recommended a 5-year effective sentence; the trial judge was initially disposed to accept the recommendation; but, to accommodate Jailer Salmons, the court resolved to impose a harsher penalty; the jury fixed the sentence for the Salmons burglary at 5 years; bound by the verdict as to the term, the court nevertheless sentenced Nichols to 10 years by ordering consecutive service. That is what appears from this proceeding, making it one not distinguished for an appearance of integrity.
The Code of Judicial Conduct provides that “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned,” including but not limited to instances where he has a personal bias or prejudice concerning a party, or a known interest which could be substantially affected by the outcome.
The majority would have it that the judge‘s concern for Mr. Salmons was no more than that due any burglary victim pursuant to
Moreover, no genuine victim-impact information is to be found in this record.
First, deaf to cries of nitpicking, I observe that the present record is devoid of written victim-impact statements. One may also, as I have, search in vain for even an oral statement by any victim. Where does the statute provide for, and why should we (or a trial court) countenance, the prosecutor‘s hearsay reports of victims’ statements?
Second, what the prosecutor did report was that the three victims’ objections “boil down to they do not believe in concurrent sentencing for someone who has committed so many offenses.” Where in this is any “recommendation for an appropriate sentence“? Where is any information as to impact of a crime upon a victim? I venture that the statute intends that a victim may recommend a “sentence” (that is, a term of years—
“[V]ictim” means an individual who suffers direct or threatened physical, financial, or emotional harm as the result of the commission of a crime....
(Emphasis added.) Cf.
II.
The trial court erred in refusing to suppress evidence of Nichols’ incriminating statements and other evidence obtained as a result of those statements.
Indeed, true to its word, the Commonwealth recommended throughout that Nichols be sentenced to all-concurrent terms. But the Commonwealth‘s bad faith occurred long before the court proceedings. When the plea agreement was forged, Nichols was incarcerated in Ohio, not going anywhere soon. He was represented by an Ohio attorney (whose conversance with Kentucky law we may not presume). Apparently Nichols was informed by the Commonwealth‘s Attorney that the court would not be bound by a plea agreement. Likely he was not informed that the victims of his crimes could make victim-impact statements which might affect the court‘s receptivity to the bargain. Certainly he was not informed that the Commonwealth had breached its statutory duty to consult with the victims about disposing of the case by a negotiated plea.
Had the Commonwealth obeyed the law, it would have been in a position to know that its recommendation might not carry its usual weight in this case, and would have been constrained by good faith to apprise Nichols of the victims’ attitudes and rights. The Commonwealth may not now claim “good faith in ignorance” when the ignorance would have been dispelled by compliance with the law. I cannot agree that Nichols “assumed the risk” (ante at 266) that the law enforcement authorities would violate the law and negotiate a plea arrangement without consulting with the victims. To the contrary, Nichols was entitled to assume that such consultation had taken place and, from the Commonwealth‘s silence, that the victims had voiced no objections to the agreement. As it happened, Nichols got much less than he had bargained for, much less than he had a right to expect.
STEPHENS, C.J., and LEIBSON, J., join in this dissent.