Williаm Edward SANDERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
No. 90-SC-954-MR.
Supreme Court of Kentucky.
Nov. 19, 1992.
Rehearing Denied Feb. 18, 1993.
844 S.W.2d 391
SPAIN, Justice.
A secondary issue in this case is whether some portions of the Commonwealth Attorney‘s file would be exempt in any event, under judicial rules of practice and procedure which pertain to the “work product” doctrine (
The appellant argues our interpretation of the Open Records Act, postponing availability of the Commonwealth Attorney‘s file in his case so long as the possibility of further judicial proceedings in his case remains a significant prospect, is unduly harsh, because it means that the more serious the criminal conviction and sentence the longer the convicted criminal‘s file will remain closed. While we agree that this result will follow, we disagree that it represents a fundamental unfairness, because the judicial rules of practice and procedure that apply to this case, and all such cases, require the Commonwealth to make discovery of all information to which the defendant is legitimately entitled during the prosecution of the action. We have no reason to utilize as a working premise that the Commonwealth Attorney‘s potential abuse of the law of discovery needs to be investigated. There is not a single bit of evidence to suggest that such is the case here. In any case where there is substantial evidence presenting a reason to investigate the file of a Commonwealth Attorney, we must trust that the system will provide adequate relief.
The bottom line is the appellant‘s claim is nothing more than that a convicted criminal should have complete access to the prosecutorial file once his conviction has been affirmed on direct appeal. The Kentucky Open Records Act neither intended nor provided for such a result.
The judgment of the trial court is affirmed.
All concur.
G. Thomas Mercer, Appellate Public Advocate, Louisville, for appellant.
Chris Gorman, Atty. Gen., Laura Early, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.
SPAIN, Justice.
The Appellant, William Edward Sanders, appeals as a matter of right his conviction
One of thе victims, twenty-year-old Mrs. Angela Dant, was attacked in her own home by a black intruder some thirty minutes after she and her two-year-old daughter had returned there. Mrs. Dant, who was six months pregnant, had picked up her daughter at a day care center after leaving her work at a nursing home.
In addition to the charges of rape, sodomy, robbery, and burglary involving Mrs. Dant and her home, the appellant was charged with and convicted of a break-in earlier the same night at the nearby home of Mary J. Terry, and with an assault upon Mrs. Dant‘s husband, Roger Dant, who arrived at his home just as the appellant was fleeing.
The appellant‘s first claim of error results from the trial court‘s denial of appellant‘s motion to suppress both the out-of-court and in-court identifications of the appellant as the perpetrator by Mrs. Dant. Upon being shown fourteen photograрhs two days after the crimes were committed, Mrs. Dant correctly identified the appellant. There were two photos each of the appellant and another man in the lineup. It is argued that the procedure denied the appellant due process by including two of his photos, thus singling out his personal characteristics, separate and apart from the other subjects, and accordingly being unduly suggestive.
Applying the standard of Simmons v. United States, 390 U.S. 377, 385, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1967), due рrocess would only be denied where the lineup “was so impermissibly suggestive as to
In the present case, Mrs. Dant had ample time to obsеrve her assailant; her description of the assailant to police closely matched the characteristics of appellant; she stated upon viewing the photograph of appellant, “That is the man that raped me“; and the identification took place only two days after the crime. The pretrial identification was clearly reliable, and we therefore conclude that the motion to suppress both the in-court and out-of-court identifications was properly denied. As the identifications were properly admitted, we will not address the appellant‘s complaint regarding evidence obtained from a search with a warrant issued as a result of the identification.
Second, the appellant complains that his motion for a directed verdict of acquittal was improperly denied. Applying the test set forth in Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991), there was sufficient evidence to convict appellant, and the trial court properly denied the motion.
The appellant‘s third contention is that his sentencing was improper by reason of the application of the “violent offender statute,”
Where a statutory distinction, such as this one, is challenged under the federal equal protection clause, the court should determine “whether the challenged distinction rationally furthers some legitimate, аrticulated state purpose.” McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973). The appellant insists that there is no legitimate purpose furthered by the distinction between
Due process requires that a statutory classification have a reasonable basis. The appellant argues that it is unreasonable to impose a sentence for a term of years which carries a minimum parole eligibility far in excess of a life sentence. Our court has recognized that it was the intent of the General Assembly that life imprisonment is a “penalty equal to or greater than any sentence to a term of years.” Smith v. Commonwealth, Ky., 806 S.W.2d 647 (1991). In Smith, the Court determined that the trial court improperly modified a jury sentence from two terms of life imprisonment to two consecutive twenty-five-year terms, becаuse a literal application of subsection (3) of the violent offender statute resulted in a greater parole ineligibility for the term of years sentence than would have been the case with the life sentence. In this writer‘s dissent, Id. at 648, it was
In so interpreting
We would further observe that our interpretation and application herein of the violent offender statute keeps it from conflicting with
The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by
KRS 532.080 for the highest class of crime for which any of the sentences is imposed.
In further support of our interpretation herein, we invite examinаtion of
When a person is convicted of a capital offense he shall have his punishment fixed at death, or at a term of imprisonment for life without benefit of probation or parole until he has served a minimum of twenty-five (25) years of his sentence, or to a sentence of life, or to a term of not less than twenty (20) years.
This section mаkes it apparent that even one found guilty of a capital offense but spared the death penalty could be considered for parole after serving only twenty-five (25) years if sentenced to the second most severe authorized punishment. This being true, how can anyone argue logically that the General Assembly intended under subsection (3) of the violent offender statute to authorize parole ineligibility for unlimited numbers оf years so long as the number is only 50% of a sentence of years? This case is a perfect illustration of how absurd such an interpretation of the statute really is. If we were to hold that the appellant could not be considered for parole until he had served eighty-five (85) years, or 50% of his sentence of imprisonment for one hundred and seventy (170) years, we would be requiring service of sixty (60) years more than one would be required to serve on a sentence to life without parole for twenty-five (25) years upon conviction of a capital offense.
We said in Hampton v. Commonwealth, Ky., 666 S.W.2d 737 (1984), that no aggregate sentence to a term of years could exceed a life sentence. Our interpretation today of
The appellant raises three additional issues which we determine are without merit. First, he claims that his 1986 guilty pleas should not have been admitted since the plea form was unusually worded. It is nevertheless clear from the record that the pleas were “intelligent and voluntary” as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Further the appellant contends that the trial judge should have recused himself from this case since he presided over such guilty plea proceedings. Yet no motion to disqualify was filed and there was no showing that a failure to recuse was palpable error.
Finally, the appellant claims that the trial court erred in admitting evidence of his juvenile convictions during the PFO
The judgment and sentence of the Daviess Circuit Court are hereby affirmed.
STEPHENS, C.J., and COMBS, LAMBERT and REYNOLDS, JJ., concur.
LEIBSON and WINTERSHEIMER, JJ., concur in part and dissent in part by sepаrate opinions.
LEIBSON, Justice, concurring in part/dissenting in part.
I concur in the major portion of the Majority Opinion, which rationally construes the otherwise incoherent parole eligibility terms specified in subsections (2) and (3) of
Nevertheless, respectfully, I must dissent in part from the Majority Opinion because it affirms the decision of the trial court to admit, during the penalty phase of the trial, evidence of convictions of the appellant for offenses committed while he was a juvenile. When, as here, the defendant is tried as a persistent felony offender (PFO), a critical portion of the penalty phase is the conviction and enhancement of the penalty for the underlying offense under the PFO statute,
“As used in this provision, a previous felony conviction is a conviction of a felony in this state or conviction of a crime in any other jurisdiction provided:
....
(b) That the offender was over the age of eighteen (18) years at the time the offense was committed[.]”
Of course, in
The briefs do nоt suggest that here the jury was advised to consider the juvenile convictions only in fixing the penalty for the underlying offense, and to disregard these convictions in fixing the enhanced penalty as a PFO offender. However, it is hardly likely that such an admonition would accomplish its purpose in any event.
It has always been the law that if statutes are in conflict, the specific should overrule the general. Here the PFO statute is specific аnd the TIS statute is general. It has always been the law that if there
The sentencing portion of the case should be reversed on this ground.
WINTERSHEIMER, Justice, concurring in part and dissenting in part.
I concur with that part of the majority opinion which affirms the conviction and sentence. However, I must respectfully dissent from that part of the opinion which interprets
Huff, supra, held that
Chapter 439 relates to probation and parole.
When an equal protection issue is raised, the reviewing court must consider whether the subject statute has a rational basis which furthers some legitimate articulated State purpose. McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973).
It is easy to argue that there is need for clarification of this Court‘s decision in Berry v. Commonwealth, Ky., 782 S.W.2d 625 (1990) and Offutt v. Commonwealth, Ky., 799 S.W.2d 815 (1990). However, I believe the solution offered by the majority is not correct. There may be some disorder in the sentencing system, but it does not amount to ambiguity so as to deceive the violator or amount to a constitutional deprivation of either equal protection or due process. It could be argued that those who violate the law must run some risks in regard to what they believe to be the opportunities for parole eligibility. Certainly the current system requires some explanation to juries but it cannot be so burdensome when compared to the remedy announced by the majority in this case.
Parole is an executive function, not a judicial one. Parole is administered by the parole board which is an autonomous body pursuant to
It has always been the responsibility of this Court to harmonize statutes which appear to be in conflict. Such reconciliation should follow the intеnt of the legislature. In this case, the clear intent of the General Assembly was to punish violators of violent crimes with longer sentences by restricting
It has been said that it is advisable for the jury to have as much information before it as possible when making sentencing decisions. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and Huff.
Certainly, any jury would expect a life sentence to mean life. The parole system now means that there is eligibility for release within twelve years, regardless of the nature of the crime. The classification of offenses is solely in the hands of the legislature just as is the imposition of penalties. Although it is totally unintentional, I believe that the majority has invaded the proper province of the General Assembly in resolving the situation.