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TRUTH - IN - SENTENCING, KRS 532.055 THE ADVOCATE Volume 30, No. 1 January 2008 Nature of Prior Convictions - The jury may be informed of the “nature” of the defendant’s prior convictions, but that term is generic, rather than specific, and is meant to include the “kind, sort, type, order, or general character of the offense.” Detailed testimony by the victim of the defendant’s prior assault on her exceeded the scope of the statute. Robinson v. Commonwealth, 926 S.W.2d 853, 855 (Ky.1996). Likewise, warrants and citations including factual information concerning the defendant’s prior convictions also exceeded the scope of the statute. Hudson v. Commonwealth, 979 S.W.2d 106 (Ky.1998). Unlike KRE 609, which limits the age of prior convictions used for impeachment to ten years, there is no age limit on prior convictions for the purposes of truth-in-sentencing. McKinnon v. Commonwealth, 892 S.W.2d 615 (Ky.App.1995). Proof of Prior Convictions - Proof of the defendant’s prior convictions in the form of a certified computer printout from the Kentucky State Police was admissible and certified copies of the judgments of conviction themselves were not necessary, despite the best evidence rule, in a case in which there was no dispute whatsoever as to the defendant’s prior convictions. Hall v. Commonwealth, 817 S.W.2d 228 (Ky.1991), overruled on other grounds. It is error to allow the introduction of prior convictions which are still pending on direct appeal or have been granted discretionary review, but not if they are being attacked collaterally. This is true for truth-in-sentencing as well as for PFO purposes. Melson v. Commonwealth, 772 S.W.2d 631 (Ky.1989), Thompson v. Commonwealth, 862 S.W.2d 871 (1993), overruled in part by St. Clair, below, Kohler v. Commonwealth, 944 S.W.2d 146 (Ky.App.1997), Tabor v. Commonwealth, 948 S.W.2d 569 (Ky.App.1997). The word “conviction” is ambiguous, however, and can refer either to an initial conviction after a guilty verdict or guilty plea, or it can refer to the more refined legal conception of a final judgment after all appeals have been exhausted. In some statutes, the word conviction refers to the former event. For example, a person is a “convicted felon” for purposes of the handgun statute (KRS 527.040) the moment the verdict or plea occurs. See Thomas v. Commonwealth, 95 S.W.3d 828, 829 (Ky.2003). Also, based on a meticulous reading of the phrase “prior record of conviction” in KRS 532.025(2)(a)(1), the Kentucky Supreme Court has ruled that prior convictions, for purposes of the aggravator which must be found before imposition of the death penalty is possible, are also merely “a plea of guilty accepted by the trial court or a jury’s or judge’s verdict of guilty.” St. Clair v. Commonwealth, 140 S.W.3d 510, 570 (Ky.2004), overruling in part Thompson. Melson, supra, was presumably not affected by the decision in St. Clair. (But see Hayes v. Commonwealth, 175 S.W.3d 574 (Ky.2005), in which the Kentucky Supreme Court seems to have applied St. Clair in a non-capital, truth-in-sentencing case.) Out-of-state Convictions - On the other hand, a computer printout from another state showing the defendant’s record of convictions and also a number of dismissed charges was ruled inadmissible. The dismissed charges were not proper evidence, and the record did not meet the requirements of KRS 422.040. That statute requires records of out-of-state convictions to be certified by the clerk with the seal of the court and also certified by the “judge, chief justice, or presiding magistrate.” Robinson v. Commonwealth, 926 S.W.2d 853 (Ky.1996), Merriweather v. Commonwealth, 99 S.W.3d 448 (Ky.2003). Juvenile Convictions -A defendant’s juvenile adjudications may be introduced during the penalty phase if the crime was one which would have been a felony if committed by an adult. KRS 532.055(2)(a)(6). The portion of that same statute which allows the use of juvenile adjudications for the purposes of impeachment during the guilt/innocence phase, however, has been ruled unconstitutional. Manns v. Commonwealth, 80 sw3d 439 (Ky.2002). Challenging Prior Convictions - When the prosecution offers evidence of prior convictions based on guilty pleas, the burden shifts to the defendant to show that the pleas were not valid. The Commonwealth is not required to prove both that the prior conviction occurred and that it 60 NOTES
THE ADVOCATE Volume 30, No.1 January 2008 was constitutionally proper. The defendant’s prior convictions were properly admitted when he failed to meet the burden of demonstrating the invalidity of the pleas. See Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992), Dunn v. Commonwealth, 703 S.W.2d 874 (Ky.1986). This includes even misdemeanor convictions introduced for the purposes of truth-in-sentencing. McGinnis v. Commonwealth, 875 S.W.2d 518 (Ky.1994), overruled on other grounds. The proper time to raise the question of the constitutional validity of a prior conviction is in a pretrial motion, and the trial court did not err in refusing to allow the defendant to put on evidence raising the issue when the defendant waited until the sentencing/PFO phase to do it. Commonwealth v. Gadd, 665 S.W.2d 915 (Ky.1984). Parole Eligibility – Although the truth-in-sentencing statute explicitly authorizes the prosecution to establish “minimum parole eligibility,” a defendant may also introduce such evidence. Boone v. Commonwealth, 780 S.W.2d 615, 617 (Ky.1989), Offut v. Commonwealth, 799 S.W.2d 815, 818 (Ky.1990). Victims – Victim impact evidence is largely irrelevant to the issue of guilt or innocence and should be reserved for the penalty phase of the trial. Bennett v. Commonwealth, 978 S.W.2d 322 (Ky.1998). KRS 532.055 defines “victims,” pursuant to KRS 421.500(1). That statute defines a victim in one of four ways, but only allows for the testimony of one witness. Terry v. Commonwealth, 153 S.W.3d 794 (Ky.2005). Only one victim impact statement should be considered by the trial court. Mitigation – Proper mitigation evidence does not include the sentences received by co-defendants for the same crime, Commonwealth v. Bass, 777 S.W.2d 233, 236 (Ky.1989), or plea offers made by the prosecution, Neal v. Commonwealth, 95 S.W.3d 843, 847 (Ky.2003). Preservation of Sentencing Error - Error which occurs at sentencing can be addressed by a motion to alter, amend or vacate a judgment under CR 59.05, which is applicable to criminal cases and must be filed within 10 days after entry of the final judgment. See, e.g., Crane v. Commonwealth, 833 S.W.2d 813, 819 (Ky.1992), in which the Supreme Court suggested that a motion to recuse the trial judge based on comments made prior to sentencing should have been raised in a CR 59.05 motion. Bail Pending Appeal - RCr 12.78 permits the trial court to grant bail pending appeal in any case except one in which the defendant has been sentenced to either life or death. Defense counsel needs to request this at sentencing. An appellate court will not deal with the issue of bail unless “application to the trial court is not practicable,” or unless the trial court denied the request. In most situations, if the request has simply never been made at the trial court level, the court of appeals will send the defendant’s attorney back to the trial court. KRS 532.070 allows a judge to convert an indeterminate sentence of one year on a Class D felony to a determinate sentence of 12 months in the local jail, if the prison sentence would be unduly harsh. This statute only applies to jury verdicts and is not applicable to guilty pleas. Bailey v. Commonwealth, 70 S.W.2d 414 (Ky.2002). Practice Tip: Parole Eligibility. The Commonwealth might not present all the evidence relevant to parole eligibility to the jury. If it does not, and it applies in your case, make sure the jury also knows about such things as (1) lack of good time credit, (2) lack of parole eligibility until completing the sex offender treatment program, and (3) the additional 5-year period of conditional discharge. PERSISTENT FELONY OFFENDER, KRS 532.080 For the relationship between truth-in-sentencing and PFO proceedings, see “Bifurcation.” Burden of Proof - A defendant may be convicted by reasonable inferences which are a logical consequence of the evidence presented. The Commonwealth retains the burden of proving every element beyond a reasonable doubt, but jurors can make inferences based on the evidence. Martin 61 NOTES
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The Advocate Journal of Criminal Ju
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