The Advocate
Volume 22, No. 4, 
July 2000

Kentucky Caselaw Review
by Shannon Dupree Smith, Assistant Public Advocate

White v. Commonwealth,
32 S.W.3d 83 (4/28/00 Ky. Ct. App.)

In 1995, White pled guilty to one count of trafficking in a controlled substance and PFO II. The Commonwealth recommended a five-year sentence on the trafficking offense enhanced to thirteen years based on the PFO II status. At the time White committed the 1995 trafficking offense, he was on shock probation for a 1991 trafficking conviction. The trial court ordered the thirteen-year sentence to run consecutive with the sentence for the 1991 felony conviction.

White filed an RCr 11.42 motion based on the failure of his trial counsel to argue for concurrent sentencing. The Commonwealth responded that KRS 533.060(2) precluded imposition of a concurrent sentence for a felony offense committed while the defendant was on probation. The trial court denied said motion, and the Court of Appeals affirmed the denial.

White filed a CR 60.02 motion asking the court to reconsider its decision ordering the thirteen-year sentence to run consecutively with the sentence for the 1991 conviction. The trial court denied the motion.

On appeal, White argued that the trial court should have held a hearing on his CR 60.02 motion. He sought a retrospective application of KRS 532.110 (which allows for concurrent sentences when multiple sentences of imprisonment are imposed), and argued that KRS 532.110(1) controlled KRS 533.060(2) because the former was recently amended. The Court of Appeals citing Commonwealth v. Hunt, 619 S.W.2d 733 (Ky. App.1981), stated that KRS 533.060(2) took precedence over KRS 532.110.

The Court stated that there is a presumption of prospective application and that there was no express language in KRS 532.110 indicating that it should be given retrospective application. The Court also stated that there was long-existing case law establishing the primacy of KRS 533.060 (2) over KRS 532.110. The Court further noted that the particular amendment to KRS 532.110 would not have effected Whiteís situation. The amendment to KRS 532.110 placed a 70-year limitation on the aggregate of consecutive indeterminate sentences.

The Court stated that White was not entitled to a hearing on his CR 60.02 motion unless he affirmatively alleged facts which, if true, justified vacating the judgment and further alleged special circumstances that justified CR 60.02 relief.

The Court found that White did not meet this standard, and thus, the trial court did not abuse its discretion in denying his CR 60.02 motion without a hearing.

Aviles v. Commonwealth
17 S.W.3d 534
(4/14/00, Ky. Ct. App.)

Aviles pled guilty to one count of trafficking in a controlled substance, second-degree, one count of trafficking in a controlled substance, third-degree and one count of theft by unlawful taking over $300. On appeal, Aviles argued that amendments to KRS 533.010 made imposition of alternatives to incarceration mandatory for certain classes of offenders.

Aviles submitted that the amendments to KRS 533.010 entitled her to probation or probation with alternative sentencing. The Court stated that the statute, as amended, still gave discretionary authority to the trial court to determine on a case-by-case basis the appropriateness of probation or probation with alternative sentencing. The statute states that the court shall grant probation or conditional discharge unless the court "is of the opinion that imprisonment is necessary for the protection of the public" based on one of three factors. The three factors include recidivism, the need for correctional treatment, and whether an alternative disposition would unduly depreciate the seriousness of the crime.

The Court cited Turner v. Commonwealth, 914 S.W.2d 343 (Ky.1996) to support the holding that the determination of whether to grant probation is within the discretion of the trial court.

Aviles also argued that if the crime committed was nonviolent, that it could not be the basis for determining that probation would unduly depreciate the seriousness of the offense. The Court stated that the language of the statute did not support Aviles position and that had the legislature intended to change when a court could impose imprisonment to nonviolent offenders, it was required to use clear and plain language that a departure from the prior interpretation was intended.

Finally, Aviles argued that the trial court should have considered home incarceration pursuant to KRS 532.210. This statute provides that any misdemeanant or felon who hasnít been convicted of or pled guilty to a violent felony offense may petition the court for a portion of their sentence in the county jail be served under conditions of home incarceration. Aviles was sentenced to the state penitentiary. Thus, she was not included in the class of prisoners who could petition for home incarceration.

Lozier v. Commonwealth
32 S.W.3d 511 (4/7/0 Ky. Ct. App.)

Lozier pled guilty to third-degree sodomy and was sentenced to a five-year term of imprisonment and a three-year term of conditional discharge. On appeal. Lozier argued that the recently enacted KRS 532.043 (which imposes a three-year period of conditional discharge for sex offenders, subject to revocation and reincarceration upon violation of terms) and KRS 197.045 (4) (which restricts the award of good time for sex offenders) are ex post facto laws and thus, unconstitutional as applied to her.

The Court set forth the test for determining whether a law is an ex post facto law: (1) it must apply to events occurring before its enactment, and (2) it must disadvantage the offender.

Concerning KRS 532.043, the Court found it met the first prong of the test. KRS 532.043 became effective July 15, 1998 and Lozierís offense occurred prior to that date.

The Court also found that the second prong of the test was met, that is, that the application of KRS 532.043 (5) disadvantaged Lozier. When Lozier committed her offense, she was exposed to the possibility of a maximum five-year sentence. Under KRS 532.043, Lozier was subject to the possibility of serving three additional years beyond the maximum five-year sentence to which she was subject when she committed the crime. The Court held that the application of KRS 532.043 to Lozierís sentence was unconstitutional as an ex post facto law.

KRS 197.045 (4) defers the effective date of any good time credit earned until successful completion of the sex offender treatment program. Concerning KRS 197.045 (4), the Court also found that the court had retrospectively applied the statute. However, the Court stated that KRS 197.045 (4) did not impose any additional punishment upon Lozier. The Court reasoned that since Lozier was convicted and sentenced after the effective date of the statute, it did not deprive her of any previosuly earned credits. The Court noted that the statute did not deprive her of the opportunity to earn good time, rather, it merely deferred the effective date of any good time that she could earn till the successful completion of the sex offender treatment program.

The Court held that the application of KRS 197.045(4) to Lozierís sentence was constitutional and not an ex post facto law.

Hyatt v. Commonwealth
17 S.W.3d 121
(4/7/00, Ky. Ct. App.)

Hyatt was charged with one count of first-degree sexual abuse. Hyatt entered into a pretrial diversion agreement, and pursuant to said agreement, the indictment was later dismissed with prejudice. Hyatt moved to segregate his criminal records under the indictment pursuant to KRS 17.142. The trial court denied the motion.

KRS 17.142 (1) directs the court to issue an order to segregate the criminal records if the person who is the subject of those records meets one of the following requirements: (a) is found innocent of the charges, (b) the charges are dismissed, or (c) the charges are withdrawn. The Court held that the language of KRS 17.142 is mandatory in that if application has been made, and (a) (b) or (c) applies to the arrestee, then the court shall issue an order to segregate the criminal records.

The Commonweath argued that KRS 17.142 was not intended to apply to charges which were dismissed as a result of participation in a pretrial diversion agreement, but rather only to cases where indictments were dismissed due to innocence or lack of evidence.

The Court stated that it was clear the legislature intended for a successful pretrial diversion to wipe the slate clean as to those charges, and that in the absence of an express legislative directive to the contrary, a successful pretrial diversion participant is entitled to qualify under KRS 17.142.

Manning v. Commonwealth.
23 S.W.3d 610
(4/20/00, Ky.)

Manning was convicted of first-degree manslaughter for the death of his step-father. Manning stood to inherit his step-fatherís farm upon his death. However, his step-father offered to sell the farm to someone else. The next day, the step-father was found dead. Manning confessed to his common law wife, Lunell, that he murdered his step-father. He told her in detail exactly how he killed him. In turn, Lunell told a detective everything Manning had told her.

At trial, Lunell testified that she could not recall what Manning had told her regarding the death of the victim. She stated that she only vaguely remembered speaking with the detective. After the Commonwealth laid a foundation pursuant to KRE 613, the video of her statement to the detective was admitted at trial as a prior inconsistent statement.

The Court stated that the constitutional right of confrontation does not prohibit the introduction of all hearsay evidence and that no person should have the power to obstruct the truth-finding process of a trial and defeat a prosecution by saying they cannot recall certain events. The Court held that the trial court was correct in admitting the video of Lunellís prior inconsistent statement and that the Confrontation Clause was satisfied by the opportunity for cross-examination of Lunell at trial.

Manning also argued on appeal that the trial court erred by denying admission of a police report which indicated that a white female had approached the officer with details regarding the victimís death as potentially related to another murder committed by someone else. This report was not admissible under KRE 803(6) , the business records exception to the hearsay rule. The Court stated that in order for a police report to be admissible under KRE 803(6), all parts of the report must be admissible under some hearsay exception. If a particular entry in the record would be inadmissible for another reason, it does not become admissible just because it is included in a business record. The Court held that anything in the police report regarding what a white female may have told the officer would be inadmissible, because the statements would not qualify for admission under any other hearsay exception.

Concerning his PFO I conviction, Manning argued that both of the prior felony convictions had to be within five years of the commission of the instant offense. The Court cited Howard v. Commonwealth, Ky. App., 608 S.W.2d 62 (1980), stating that the persistent felony statute only requires that completion of service of sentence or discharge from probation or parole on any, not each, of the prior convictions have to have occurred with five years of the commission of the instant offense.

Lastly, Manning argued that the trial court erred in instructing the jury on first-degree manslaughter. He contended that the Commonwealth failed to prove by any non-speculative evidence that he was suffering from extreme emotional disturbance at the time of the victimís death. The Court held that a trial court is required to instruct on every theory of the case reasonably deducible from the evidence. Based on the evidence presented at trial, the Court found that the jury had a solid basis for the finding that Manning was acting under extreme emotional disturbance when he killed the victim.

Dunagan v. Commonwealth,
34 S.W.3d 816
(4/20/00, Ky.)

Dunagan was ordered to pay $65 per week child support. In 1994, he was indicted for flagrant nonsupport. In 1996, the court found Dunagan in contempt for his failure to pay child support and sentenced him to 90 days in jail, said sentence being conditionally discharged as long as Dunagan paid the child support and $25 per week toward the arrearage. Dunagan again failed to make the payments, and the court ordered him to serve 30 days of the 90-day jail sentence, probating the remaining 60 days on the condition that he comply with the order.

The court dismissed the 1994 indictment for flagrant nonsupport on the ground of double jeopardy. The issue on appeal was whether the principles of double jeopardy prevented prosecuting a defendant for flagrant nonsupport after a civil court had sentenced him to jail for contempt for failing to pay child support.

The Court stated that a person may be sentenced to jail for civil contempt but the party in contempt "carries the keys to jail in his pocket" because he is entitled to immediate release upon obedience to the order of the Court. The purpose of civil contempt is to compel obedience to and respect for an order of the court. However, if the purpose of the court is to punish, such sanction is criminal contempt.

The Court held that Dunagan did not in effect "hold the keys to the jail cell in his hand" because he was conditionally discharged as a criminal defendant. Dunagan was required to serve 30 days of the sentence. The circuit judge did not order Dunagan to be released if he began making weekly payments. The Court noted that even if Dunagan had began making payments on a weekly basis after his imprisonment, he could not have left jail until his 30-day sentence was completed.

The sentence Dunagan received had the effect of compelling obedience to the order of the court but it was actually intended to punish him for failing to abide by the order of the court.

The Court reversed, and ordered that the circuit court order dismissing the indictment be reinstated.

Commonwealth of Kentucky v. Montaque,
23 S.W.3d 629
(4/20/00, Ky.)

Montaque was convicted of trafficking in a controlled substance first-degree and possession of drug paraphernalia. Additionally, she was found guilty of being in possession of a firearm at the time of the commission of the offenses which subjected her to an enhanced penalty under KRS 218A.992.

Montaque admitted having the drugs and further admitted she had intended to sell it. She denied, however, that the unloaded, semi-automatic handgun found in a trunk of a car owned by her boyfriendís mother and parked in the parking lot played any part in her drug dealing. Montaque said that she was storing the gun for a friend. She also stated that she had recently bought a new car and wasnít even using the car in question any longer.

KRS 218A.992 provides for an enhanced penalty when a defendant is found to be in possession of a firearm at the time of the commission of the offense. On appeal, Montaque argued that KRS 218A.992 contemplates the existence of some nexus between the firearm and the underlying offense, and that she should have received a directed verdict on the issue of whether she was eligible for sentence enhancement under KRS 218A.992. The Commonwealth claimed that KRS 218A.992 did not require proof of a nexus but only proof of firearm possession contemporaneous with the underlying offense.

The Court held that KRS 218A.992 does not require actual possession of a firearm, but that it does require a nexus between the crime committed and the possession of the firearm. Mere contemporaneous possession of a firearm is not sufficient to satisfy the nexus requirement. The Court stated that when it cannot be established that the defendant was in actual possession of a firearm or that a firearm was within his or her immediate control upon arrest, the Commonwealth must prove more than mere possession. It must prove some connection between the firearm possession and the crime. The Court noted that this holding limits the reach of Houston v. Commonwealth, 975 S.W.2d 925 (Ky. 1998), but does not overrule it.

In a dissenting opinion, Justice Graves opined that the statute does not require proof of a nexus between the firearm possession and the drug offenses. All that is required is possession, which includes constructive possession. Justices Lambert and Wintersheimer joined the dissenting opinion.

Shannon Dupree Smith
Appellate Branch
100 Fair Oaks Lane, Ste. 302
Frankfort, Kentucky 40601
Tel: (502) 564-8006;
Fax: (502) 564-7890

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