Kentucky Sentencing Law: Some Scenarios
Transcription
Kentucky Sentencing Law: Some Scenarios
Sentencing: the Good, the Bad, and the Conflicting Statutes Creatively advocate for your clients, and achieve the negotiated outcome. What Do You Have to Know? Aggregating Sentences Sex Offender laws Concurrent vs. Consecutive Collateral Consequences Client’s record Probation Eligibility Violent Offender laws Persistent Felony Offender Statutes Double Enhancement Parole Eligibility Aggregating Sentences Jane is charged with 3 counts of TBUT U/$500. What is her maximum possible sentence? A. 1 year B. 3 years (1 year max on each x 3 = 3 years) C. 2 years D. 18 months KRS 532.110(1)(b): Multiple misdemeanor convictions cannot be aggregated for more than one (1) year. Mark is charged with 4 class-D felonies and 3 class-C felonies. The offer is 25 years to serve. Good offer? A. Yes, he is facing 70 years, yikes! B. Yes, he is facing 50 years. C. No, he is facing 20 years, max. D. No, 25 is never a good offer. Felonies – Class C and D KRS 532.110(1)(c) in fancy language, limits the aggregation of consecutive felony terms of C or D felonies to a maximum of 20 Years. Fancy Language: “the maximum amount of time one could get if the longest felony charged were enhanced by a PFO 1st under KRS 532.080.” Class D = 1-5 years Class C = 10-20 years Class D + PFO 1 = 10-20 years Class C + PFO 1 = 10-20 years The Break Down Under KRS 532.080(6)(b), a PFO 1st on a Class-D or a Class-C felony raises either one of them to a possible sentence of 10-20 years. So, Class-C and Class-D felonies cannot be aggregated for more than 20 years. What if your client is on felony probation or parole, and is convicted of new C and D felonies? Charges can be run concurrent or consecutive. Peyton v. CW, 253 S.W.3d 504 (Ky. 2008)(overruling Devore v. Comm.). BUT, if they are run consecutively, they cannot exceed 20 years. Blackburn v. Comm., 394 S.W.3d. 395 (Ky. 2011). KRS 532.110(1)(c): As of 1998, set a limit of aggregated consecutive felony terms of years at 70 years. PRACTICE TIP:You are entitled to a jury instruction stating that consecutive sentences cannot exceed 70 years. Allen v. Comm., 276 S.W.3d 768 (Ky. 2008). What if the client agrees to more time? If your client accepts probation to more than the statutory maximum and is later revoked, the Court cannot impose the illegal sentence. McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010). Consecutive v. Concurrent - ALL NEW OFFENSES - Joe is convicted of Rape 1st and murder. What is the longest term of years he can receive? A. 50 years B. 70 years C. 100 years (50 on murder + 50 on rape) D. There is no maximum on murder. No sentence for a term of years, received at the same time as a life sentence, can run consecutively to that life sentence. Bedell v. Com., 870 SW2d 779 (Ky. 1993). The same rule applies for: Life Without Parole for 25 years (LWOP) Life Without Parole NOTE: a life sentence can run consecutive to a term of years if the sentences are imposed on different cases, and the client was on probation or parole for one of the offenses at the time that the second offense was committed. James is convicted of RSP O/$500 and RSP U/$500, what is his maximum possible sentence? A. 5 years. 25% 25% 25% 25% ss t Le 6 ye a rs (5 Up to s.. . ca u be ha n 1 ye a ye rs ar on 5 RS P/ ... ye ar s. RSP/O and 1 year on RSP/U). C. Less than 1 year because 20% parole eligibility. D. Up to DOC. DO C. B. 6 years (5 years on A definite term of imprisonment will run concurrently with an indefinite felony. KRS 532.110(1)(a). Serving out the indefinite term will satisfy both sentences. KRS 532.110(1)(a). This is true when the sentences are imposed by separate courts. Powell v. Payton, 544 S.W.2d 1 (Ky. 1976). Hypothetical: Client is charged with a felony and a misdemeanor. He accepts a diversion on the felony, but enters a guilty plea on the misdemeanor. His 120-days of jail credit is applied to the misdemeanor. 2-years later, his diversion is voided and he is sentenced to 3-years. Does he have jail credit? Answer: He is entitled to 120 days of jail credit. The client is entitled to credit for the time he served on the misdemeanor when the diversion is revoked. Prather v. Comm., 544 S.W.2d 1 (Ky. 1976). Must be Decided at Sentencing Whether sentences will be concurrent or consecutive must be decided at the time of sentencing. Machniak v. Commonwealth, 351 S.W.3d 648 (Ky. 2011). Example: Judge tells your client that her sentences will be concurrent if she is successful on probation, but consecutive if she is revoked. Consecutive v. Concurrent - NEW SENTENCE AND REVOKED SENTENCE - Sue is on felony probation and commits a new felony. At the time of sentencing, she has not been revoked. Concurrent or consecutive? A. Concurrent, because 33% 33% is. .. t’s d eC th ef tt o sl se c Co n ou r by s It i ut ive ly , au se ec t, b re n cu r Co n ta t sh e .. . ut e . she hasn’t been revoked. B. Consecutively, by statute. C. It is left to the Court’s discretion. 33% While on Probation Although KRS 533.040(3) seems to require a sentence of probation be revoked to cause the new charges to run consecutively, KRS 533.060(2) controls over that statute. Therefore, the new sentence CANNOT run concurrent to the old probated sentence. Brewer v. Com., 922 SW2d 380 (Ky.1996) Does time of revocation matter? KRS 533.040(3) states that a revoked probation sentence must run consecutive with a prison sentence. BUT … revocation shall take place prior to parole or expiration of sentence of imprisonment OR within 90-days of grounds for revocation coming to the attention of DOC, whichever occurs first. IF this deadline is missed, then the revoked sentence and the new sentence must be run concurrently. What if the agreement remains silent on the issue of concurrent versus consecutive? KRS 532.110(2) seems to give a judge the ability to run the charges concurrently simply by not specifying how they should run. BUT KRS 533.060(2) controls in the case of felonies committed on felony probation. If the agreement is silent, DOC will fix the issue for you, and run them consecutively. Riley v. Parke, 740 SW2d 934 (Ky. 1987) THANKS, DOC!! Jack is convicted of DUI 2nd while on felony probation. Concurrent or consecutive? Co n 33% t. ou r eC th of n re tio se cu t iv e, b Co n cu r re n tu nd er t he ys ta de f.. . definite sentence v. indefinite sentence rule. B. Consecutive, by statute. C. Discretion of the Court. 33% tu te . 33% Di sc A. Concurrent under the A new misdemeanor sentence may run consecutive to a revoked felony sentence, but it is not mandatory. WHY?? … Conflicting Statutes …. KRS 532.110(1) “When multiple sentences are imposed on a defendant for more than one crime, including a crime for which a previous sentence of probation…has been revoked, the…sentences shall run concurrently or consecutively…except that a definite and an indefinite term shall run concurrently…” Definite = misdemeanor (day for day) Indefinite = felony (PE and good time applied) KRS 533.040(3) “A sentence of probation…shall run concurrently with any federal or state jail, prison, or parole term for another offense to which the defendant is or becomes subject during the period, unless the sentence of probation is revoked.” Since the two statutes obviously conflict, the court may run the new charge consecutive to the old felony, but doesn’t have to. Snow v. Com., 927 SW2d 841 (Ky.App. 1996) Zoe is on misdemeanor probation when she commits and is sentenced on a felony. Concurrent or consecutive? A. They must run m ay ey Th s. kn ow No bo dy en t.. . nc ur r co ru n ru n us t m ey Th Th ey m us t ru n co co ns e nc ur r cu tiv en t. concurrent. B. They must run consecutive. C. They may run concurrent or consecutive. D. Nobody knows. e. 25% 25% 25% 25% Whether the felony is committed first or second, the same conflict in laws exists. Therefore, the answer is the same. The court may run the sentences concurrently or consecutively. Warren v. Com., 981 SW2d 134 (Ky.App. 1998) JoJo is on misdemeanor probation and is convicted of a second misdemeanor. Concurrent or consecutive? A. The sentences must be ... nl e se cu t iv e, u ru n ay Co n tm ou r eC Th ss th em un us tr nc es m en te es Th Th es en te nc e sm us tb e ... r.. run concurrently. B. The sentences must run consecutively. C. The Court may run them concurrent or consecutive. D. Consecutive, unless otherwise stated. ot he ... 25% 25% 25% 25% This involves a conflict between KRS 532.110(1)(b), which says aggregated misdemeanors cannot exceed 1 year, and KRS 533.040(3) which allows consecutive sentences when probation has been revoked. Again, the Court may run them consecutively, but doesn’t have to. Walker v. Com., 10 SW3d 492 (Ky. App. 1999) So what happens in these situations if the court is silent with respect to concurrent or consecutive? They must run concurrently! BUT, WAIT! WHAT ABOUT THAT 1-YEAR RULE FOR MISDEMEANORS?? KRS 532.110(1) states that: When multiple sentences of imprisonment are imposed on a defendant for more than one (1) crime, including a crime for which a previous sentence of probation or conditional discharge has been revoked, the multiple sentences shall run concurrently or consecutively as the court shall determine at the time of sentence, except that: (b) The aggregate of consecutive definite terms shall not exceed one (1) year. CHALLENGE THIS! Arguments: o Misdemeanors convictions should not carry felony time. o Without good time, misdemeanors being punished more harshly than felonies. o Cost to the County. o Same logic as the C and D rule under Peyton & Blackburn. Consecutive v. Concurrent - Sex Crimes, Armor Piercing Ammo, and Escape … oh, My! - Chester is convicted of two (2) counts of Class-D Sex Abuse, 1st. Count 1 relates to A.B. Count 2 relates to C.D. What is his minimum possible sentence? A. 1-year 25% 25% 25% 25% B. 2-years C. 5-years 10 -y ea rs rs ea 5y ea 2y 1y ea r rs D. 10-years Sex Crimes Two or more sex crimes involving two (2) or more victims MUST run consecutively with one another. KRS 532.110(1)(d) Prohibited Ammo Use of armor-piercing or flanged ammunition in the commission of a crime If found guilty of the crime and the offense of using restricted ammunition, the two sentences have to run consecutively. KRS 527.080(3) Client is charged with Assault 3rd and Escape 1st. What is his minimum possible sentence? A. Escape 1st is a C-felony, sb ec ar ye ½ 7 c id e. ... de ill w DO C au se of th e lo ny i Dfe um im M in Es ca pe 1s t on is a aC -f e lo ny ,s . .. so the minimum is 5 years. B. Minimum on a D-felony is 1, and Minimum on a C-felony is 5 = 6 years. C. 7 ½ years because of the Escape. D. DOC will decide. s.. . 25% 25% 25% 25% Escape KRS 532.110(3) requires that sentences imposed for the crime of escape to run consecutive to “any other sentence” the defendant must serve. Therefore if convicted of both offenses, your client could receive: 1-5 years on Assault 3rd (Class D felony) 5-10 years on Escape 1st (Class C felony) Minimum on Assault (1) + Minimum on Escape (5) = 6 years Time of Revocation What if client is on probation for a felony, then is convicted of escape. But they wait more than 90-days from conviction to revoke his old felony sentence? Then it is concurrent, right? NOPE KRS 532.110(3) controls over KRS 533.040(3), so the old felony sentence will still run consecutively to the new escape charge. Wilson v. Com., 78 SW3d 137 (Ky.App. 2001) Awaiting Trial – KRS 533.060(3) When a person commits an offense while awaiting trial for another offense, and is subsequently convicted of both the original offense, and the “awaiting trial” offense, the sentences shall not run concurrently. Your client is not “awaiting trial” if … A. S/he has not yet been “.. . a. .. w is. . of th e ab o ve ar e “a ar e ov e No ne lo ft he ab so l Al Th eu nr e en te r ed ve d a ch ar pl e a, ge b. . d. .. in en be ha s no ty et E. S/ he D. ha s C. S/ he B. indicted. S/he has entered a plea, but has not yet been final sentenced. The unresolved charge is a misdemeanor. All of the above are “awaiting trial.” None of the above are “awaiting trial.” 20% 20% 20% 20% 20% The client is “awaiting trial,” even if he didn’t know he had been indicted yet. Moore v. Com., 990 SW2d 618 (Ky. 1999). The client is still “awaiting trial” until the sentencing is over. Cosby v. Com., 147 SW3d 56 (Ky. 2004). This includes “awaiting trial” on misdemeanors. Handley v. Com., 653 SW2d 165 (Ky.App. 1983). PROBATION ELIGIBILITY - NEW FELONIES WHILE ON FELONY PROBATION - Can a client who is on probation for a prior felony EVER qualify for probation? YES! There are some exceptions to KRS 533.060(2) that will allow for a person who is on probation to receive probation on a subsequent offense. Candice is on felony probation. She is then convicted of a new felony. Under what circumstance can she receive probation? A. If both offenses involve er a va ila bl ss -D ... cla ne v io n Pr ob at of fe ns e is a re ne If o ot h If b If b ot h of fe ns es of fe ns es a in vo lv er . .. c la ss -.. . the use of a firearm. B. If both offenses are class-D felonies. C. If one offense is a classD felony. D. Probation never available. e. 25% 25% 25% 25% The Class-D Exception KRS 533.030(6) says that the prohibition in KRS 533.060(2) against probating new felonies committed while on felony probation, doesn’t apply to Class D felonies! What this means is that, even though the new felony offense must run consecutively to the old one, it can still be probated if it is a Class-D felony. Adams v. Com., 46 SW3d 572 (Ky.App. 2000). May is convicted of TBUT U/$10K and PFO 1st. The jury recommends 20 years. Her 2 prior felonies are also TBUT U/$10K. Can her new sentence be probated? A. Yes, because all lt he al au se it is it’ sa Ye s ,b ec se ec au No ,b ... e. .. ju ry v PF O er of h se ec au No ,b Ye s ,b ec au se al lo ffe ns es ... offenses are class-B felonies. B. No, because of her PFO 1st conviction. C. No, because it’s a jury verdict. D. Yes, because it is all the same offense. 1. . 25% 25% 25% 25% All Class D Felonies Since they are all Class-D felonies, none of which involved violence or a sex crime, yes he can. KRS 532.080(7) PROBATION ELIGIBILITY - SEX OFFENSES- Can my client convicted of a sex offense ever be probated? YES! There are some exceptions to KRS 533.060(2) that will allow for a individuals convicted of Class-D sex offenses to receive a probated sentence. Ineligible for Probation: Sex Offenses BUT … There are other prohibitions on many of the sexual based offenses: See, KRS 532.045 for sex offenses which cannot be probated and the special criteria for those. See, Trial Law Notebook, p. 89 PROBATION ELIGIBILITY - PROJECTILE WEAPON- Joe pleads guilty to convicted felon in possession of a handgun, probation at the discretion of the court. Prosecutor says he cannot be probated because projectile weapon used. You argue? A. It must be to serve, but PE s.. . un le ve , It m us tb e to It m us tb e It m us tb e to se r se r ve , bu tP ... after 20%. B. It must be to serve, unless the Judge shows mercy. C. It must be to-serve, unless James goes to treatment. D. Possession of a handgun is not use of a projectile weapon. Probation allowed. to -se Po rv ss e, es un s io le .. n of ah an dg un .. 25% 25% 25% 25% Projectile Weapon The prohibition against probation in KRS 533.060(1) requires “use” of a projectile weapon. Mere possession of one is not enough. Haymon v. Com., 657 SW2d 239 (Ky. 1983). PAROLE ELIGIBILITY Mike is considering an offer of 30-years to serve on murder. What is his parole eligibility? A. 85% of 30 years = 25% 25% 25% 25% nd hs a on t m 7 sp e. .. 20 up It’ s of 30 85 % da y to DO C. ye ar s. 20 ye a rs = 25 .5 ye ar s. 25.5 years. B. 20 years. C. It’s up to DOC. D. 7 months and 20 days per year = 18.9 years. Parole eligibility for any violent offender with a sentence where 85% exceeds 20 years, is 20 years. This is any sentence over 23 ½ years. This is because the parole eligibility for life is 20 years, and violent offenders cannot have a parole eligibility for a term of years greater than if they had gotten life instead. Hughes v. Com., 87 SW3d 850 (Ky. 2002) Parole Eligibility Basics Capital (i.e. all murder), Class A, or B involving death or serious injury – 85% Manslaughter 2nd or Reckless Homicide where the victim is a peace officer and Theft by Unlawful Taking where the taking is of $10M+ - 50% Class B not involving death or serious injury and violent and nonviolent Class C’s & D’s – 20% Multiple nonviolent Class D’s with total aggregated sentence of less than 5 years – 15% or 2 months, whichever is longer. PERSISTENT FELONY OFFENDER P.F.O. – KRS 532.080 WHAT YOU NEED TO KNOW: 1. Has your client been convicted of a prior felony? 2. How old is your client? 3. When was the prior sentence completed? 4. What is the nature of the prior offense? 5. What is the nature of the current offense? Convicted of a Prior Felony? Why is this important? If your client has been convicted of a prior felony, whether instate or out-of-state, then the prior felony may trigger the Persistent Felony Offender Statute. KRS 532.080. The PFO statute is overly complicated, extremely punitive, and probably one of the most harsh persistent felony offender statutes in the nation. Age of Client? Two separate time periods to Investigate Age when past crimes were committed Age at time of current conviction WHY? For PFO to Apply: 1. Client MUST have been over 18 when prior offense was committed. 2. Client MUST be over the age of 21 when current crime was committed. Any prior felonies? If so, when? To trigger PFO, your client must have “completed service of the sentence imposed on the previous felony conviction within five (5) years prior to the date of commission of the felony for which he now stands convicted.” QUESTION 1: Date 1: Date of COMPLETION of the most recent prior felony Date 2: Date of the OFFENSE in the new case. IF OUTSIDE 5-YEARS = NO P.F.O.!! IF INSIDE 5-YEARS – QUESTION 2: Any other prior felonies? Examples of within 5-years: 1. Currently on probation; 2. Currently on parole; 3. Currently serving a sentence (incident occurred while incarcerated; incident occurred after escaping from a facility, etc); 4. Within 5-years of being “off paper.” Prior Felonies – How Many? Why does this matter? 1 prior felony in which service was completed within 5-years, and no other felonies = PFO 2nd Degree 1 prior felony in which service was completed within 5-years, and at least one other prior felony = PFO 1st Degree When 1 + 1 = 1 Concurrent or uninterrupted consecutive sentences will count as ONE PRIOR FELONY for the purposes of PFO. KRS 532.080(4). Note: All felonies must be final sentenced before serving any time on any of the felonies. Rob is convicted of TBUT O/$10K (C-felony) and PFO 1st. His priors are both non-violent Class-D felonies. The jury recommends a sentence of 10 years. How long until he is eligible for parole? A. 10 years – 10-flat go od .. . ye ar s. P. E. lc u la = te 8½ 2y = ca ill w P. E. 20 % 85 % DO C 10 ye ar s – 10 -fl at ap pl ea ie s. applies. B. 20% P.E. = 2 years. C. 85% P.E. = 8 ½ years. D. DOC will calculate good time, so it is unclear. rs . 25% 25% 25% 25% PFO 1st v. PFO 2nd PFO 2: Class D + PFO 2 = 5-10 years, 20% PE Class C + PFO 2 = 10-20 years, 20% PE Class B + PFO 2 = 20-50, life, (20% or 85% PE) Class A + PFO 2 = 20-50, life (85% PE) PFO 1: Class D + PFO 1 = 10-20 years, 20% PE Class C + PFO 1 = 10-20 years, 10-flat PE Class B + PFO 1 = 20-50, life, 10-flat PE or 85% Class A + PFO 1 = 20-50, life, 10-flat PE and 85% Nature of the Prior Offense Out-of-State Felonies - Length of Sentence? Never assume that an out-of-state felony conviction will count (or will not count) as a felony in Kentucky for PFO purposes. TEST: Was the sentence imposed more than 1 year? If so, then the conviction will count as a felony for PFO purposes. Ware v. Comm., 47 SW 3d 333 (2001) Nature of the Prior Offense Is it a Sex Related Offense? WATCH OUT FOR ENHANCED PENALTIES!!! Lee is convicted of Sex Abuse, 1st degree, victim under 12. He was previously convicted of Sex Abuse 1st, victim under 12. What penalty is he facing? A. Class C felony = 5-10 . .. lif e, o rL ife r= ye 20 -5 0 io le is He ar s, nt of fe nd e 1 av fe l C ss Cl a Cl a ss C fe lo ny on y = w it h 510 ye a pr io r.. rs .. . years; 20% P.E. B. Class C felony with 1 prior = PFO 2nd, so 1020 years, with 10-flat. C. He is a violent offender = 5-10 years at 85% PE. D. 20-50 years, life, or Life Without Parole for 25. . .. 25% 25% 25% 25% KRS 532.080(6)(a) If the offense for which he presently stands convicted is a sex crime committed against a minor, AND the client was previously convicted of one (1) or more sex crimes committed against a minor, the possible penalties are: 1. 20-50 years 2. Life 3. Life without Parole for 25 years Nature of the Prior Offense DANGER: Double Enhancement Separate priors that have merged for the purpose of PFO Felon in Possession of a Handgun Drug Offenses Failure to Register as a Sex Offender Dale was convicted in 1 prior felony case, but convicted on 3 counts. He is now charged with Convicted Felon in Possession of a Handgun. Is he PFO eligible? A. No, he only has one ,o ne Ye s ,P FO w co ill st ... un t ap fo r pl y ,n th e o o tw av e Ye s ou No ,y No ,h eo nl y m us th ha s on e pr io p. .. r. . . prior felony. This is a double enhancement. B. No, you must have two prior felonies for PFO. C. Yes, PFO will apply, no matter how many counts. D. Yes, one count for the status, and one to support the PFO 2nd. m .. . 25% 25% 25% 25% RULE: the same prior felony conviction cannot be used to create the status (i.e. convicted felon) and the basis for the enhancement (PFO). THE FOLLOWING IS PERMITTED: 1. If a there are multiple current charges, the same prior felony can be used to create the status, and then PFO enhance accompanying non-status charge. See, O’Neil v. Comm., 114 SW.3d 860 (Ky. App. 2003) (citing, Dale v. Comm., 715 S.W.2d 227 (Ky. 1986)). 2. If there are multiple counts in the prior felony case, then one count can be used to create the status, while the other felony counts are used for PFO purposes. Enhancing Accompanying Felonies Prior Case: 08-CR-123 Count 1: Robbery 2nd Degree Current Case: 14-CR-456 Count 1: CFPHG supported by 08-CR-123 Count 2: Burglary 2nd Count 3: PFO 2nd supported by 08-CR-123 PFO 2nd can enhance Ct 2, but NOT Ct 1 in 14-CR-456 Failure to Register as a Sex Offender Failure to Register as a Sex Offender Example: Same prior conviction cannot be used to create the status (i.e. requirement to register) and the basis for PFO. See, France v. Comm., 320 S.W. 3d 60 (Ky. 2010). Watch out for double enhancement on any offense that is based on a status. Limits to PFO on Enhanced Offenses KRS 532.080(10): the Persistent Felony Offender statute “shall not apply to a person convicted of a felony offense if the penalty for that offense was increased from a misdemeanor to a felony, or from a lower felony classification to a higher felony classification, because the conviction constitute a second or subsequent violation of that offense.” BUT … THERE ARE EXCEPTIONS … PERMITTED USE OF PFO FOR SUBSEQUENT OFFENSE CONVICTIONS KRS 532.080(10)(b) allows for use of PFO for the following offenses: 189A.010 - DUI 189A.090 – DUI/SOL 506.140 – Criminal Gang Recruitment 508.032 – Assault 4 (DV) 508.140 – Stalking, 1st Degree 510.015 – 3rd misdemeanor sex offense under chapter 510 OR any other felony offense if the penalty was not enhanced to a higher level because the CW elected to prosecute the person as a first-time offender of that offense PFO NOT ALLOWED Trafficking – second or subsequent offense VIOLENT OFFENDERS Brad is convicted of Sexual Abuse, 1st Degree, victim under 12. As such, he is a violent offender. What is his parole eligibility? A. 85% - because he is a eb in rm DO C w ill de te tc an ou r eC Th as e. .. s2 .. se si th i se ec au -b 20 % ti sa a is he se ec au -b 85 % ta Cl vio ... violent offender. B. 20% - because this is a Class-C felony. C. The Court can set it as 20% or 85%. D. DOC will determine based on behavior. a. .. 25% 25% 25% 25% KRS 439.3401 There are offenses that are considered to be “violent offenses” in all classifications of felonies. Not ALL violent offenders are subject to 85% P.E. BUT no violent offender can serve out before completion of 85% of their sentence. *** Your client cannot be “off paper” before 85% service, but can make parole. JAIL CREDIT AND V.O.’S 1. “A violent offender shall not be awarded any credit on his sentence authorized by KRS 197.045(1)(b)1.” KRS 439.3401(4) - KRS 197.045(1)(b)1 = Good behavior (10 days/month) 1. “In no event shall a violent offender be given credit on his or her sentence if the credit reduces the term of imprisonment to less than eighty-five (85%) of the sentence.” KRS 439.3401(4). - Example: meritorious or educational credit Exception to the V.O. Statute The Violent Offender Statutes DOES NOT apply to individuals who have been determined by the Court to be victims of Domestic Violence or abuse pursuant to KRS 533.060. - The exception does not apply to Rape in the 1st Degree and Sodomy in the 1st Degree. KRS 533.060 will protect not only the victim of Domestic Violence but also FAMILY MEMBERS of the victim of Domestic Violence. LITIGATING THE SENTENCING PHASE OF TRIAL After the Guilt/Innocence phase of a trial, there is a sentencing phase of the trial. The Commonwealth can enter evidence of several aspects of your client’s past including prior convictions, probation status, nature of the offenses, impact of the crime on the victim, etc. KRS 532.055 PRIOR CONVICTIONS - ADMISSIBLE The general nature of the priors can be described, but not the details of the prior conviction. Cooper’s instructions or the KRS statute, preferably read by the Judge. Webb. Some forms of proof are both too detailed and insufficient: indictments, citations, warrants, courtnet Watch out for evidence of charges for which the defendant was NOT convicted (charges which were amended or dismissed) Evidence may contain objectionable hearsay JUVENILE OFFENSES - ADMISSIBLE Truth in Sentencing allows for the admission of evidence related to juvenile offenses, if the conviction is for a crime which would have been a felony if committed by an adult. KRS 532.055 (2)(a)7 VICTIM TESTIMONY The prosecutor in the sentencing phase wants to have the mother, sister, friend, and pastor of the dead person testify in a Reckless Homicide case Can they ALL Testify? Unfortunately, the answer is yes KRS 421.500 What about us? What Can We Say? Remember that we have the right to put on evidence in mitigation KRS 532.055(2)(b). Investigate your client’s background. Interview family members and friends. Have an evaluation conducted (if appropriate). Gather records: school, military, employment, medical, etc. Call witnesses in support of your client. Gather exhibits – photographs, documents, etc. Admit exhibits that tell your client’s story. Plan an opening and closing in advance Do not use a generic opening and closing – prepare for a conviction. Use any parole eligibility chart to your advantage. Fight having a DOC parole eligibility chart being admitted as evidence. Remember, when you’re in a trial, and there is a possibility of your client being found guilty of multiple felonies… KRS 532.055(2) says: “The jury shall recommend whether the sentences shall be served concurrently or consecutively.” COLLATERAL CONSEQUENCES Collateral Consequences The World After Padilla v. Kentucky Padilla effectively holds that it is ineffective assistance of counsel not to advise accurately about the deportation consequences of a felony guilty plea The holding in Padilla has been applied to other areas of misadvice regarding collateral consequences. Categories of Collateral Consequences Sex Offender Registration/Treatment Deportation Loss of License Court Ordered Treatment Firearm Possession Ban Loss of Public Benefits Loss of Child Custody Bar to Employment/Armed Services How Do We Cope? Don’t Panic Holistic Representation Say “I don’t know” Talk to other Experts/attorneys, etc. Ask other DPA attorneys for help – especially if they have attended additional training. Use your COLLATERAL CONSEQUENCES MANUAL. FINAL SENTENCING The jury recommends a 5 year sentence on Cold Carrie for a Burglary 3rd when it was shown she was homeless and freezing. Is there anything we can do? . 33% ju r.. he ca n ca ej ud ge Th Ye s ,t he co ur t ve ju ry he No ,t as n rd ic t m m od i us t. . . must be to serve. B. Yes, the court can modify the sanction handed down by the jury. C. The judge can ask the jury to impose probation. 33% fy ... 33% kt A. No, the jury verdict KRS 532.070 states that the Court can modify the sentence handed down by the jury. NOTE: this statute only applies to jury verdicts, not a guilty plea. What Does the Judge Have to Consider? KRS 533.010(2) REQUIRES THE JUDGE TO CONSIDER: 1. Probation 2. Probation with an Alternative Sentence 3. Conditional Discharge Restitution The restitution amount must be decided at the time of final sentencing. Rollins v. Comm., 294 S.W.3d 463 (Ky. App. 2009). If your judge tries to enter a “general restitution order” – object! PRESENTENCE INVESTIGATION REPORT (PSI) Take an Active Role in Drafting the PSI Review the PSI prior to sentencing. RCr 11.02(two business days before sentencing) Look out for a “nature of the offense” section that involves facts of charges that were amended or dismissed. If you disagree with the facts – ask P&P to change them. If P&P will not change them, ask the judge to change them and request an Order directing P&P to make the changes, and provide a copy of the modified PSI to DOC. Why? This is what DOC will use for parole. It is also what SOTP will use for Sex Offender Treatment and what admissions your client must make. POSTINCARCERATION SUPERVISION 5 years for KRS 510 felonies, commercial sexual human trafficking, incest, unlawful transaction w/ a minor 1st, use and promotion of a minor in a sexual performance 1 year for capital offenses, Class A felonies, prisoners with maximum or close security classification and anyone ineligible for parole KRS 532.043; 532.060; 532.400 Conditions of Postincarceration Supervision The Judge cannot impose conditions of postincarceration supervision at the time of sentencing. Chames v. Comm., 405 S.W.3d 519 (Ky. App. 2012). The Department of Corrections is responsible for setting the terms of postincarceration supervision. Calculating Sentences DOC “math” – when there are less than 365 days in a year What’s a “state year”? 7/21? Where did that come from? What’s a “state year”? It depends. 3 Kinds of Statutory Credit: Statutory Good Time, 10 days/month Meritorious Good Time, 7 days/month Educational Good Time, 90 days awarded upon completion of GED or graduation/receipt of diploma Credit comes off the end of the year Take the example of statutory good time - 10 days per month After the first three months, the last month falls off: 123 4 5 6 7 8 9 10 11 12 After the next three months, another month falls off: 123 456 7 8 9 10 11 12 After four months of meritorious good time credit at 7 days/month, another month falls off. 1 2 3 4 5 6 7 8 9 10 11 12 Educational Credit With educational/drug treatment credit another 90 days can come off: 1 2 3 4 5 6 7 8 9 10 11 12 V.O.’s and S.O.’s Violent offenders do not get good time KRS 439.3401(4). Note: The educational good time exception is gone. Sexual offenders do not get good time credit until after completion of the Sexual Offender Treatment Program This is SUPER complicated Read the statute … every time. Refer to the Trail Law Notebook. Ask for help. Euva Blandford: euva.blandford@ky.gov Melanie Foote Hollingsworth: melanie.foote@ky.gov