Sentencing Advocacy:The Final Frontier : Sentencing Advocacy:The Final Frontier A Study in Using Conflicting Statutes to Confound the System
What Do You Have to Look For Post-trial? : What Do You Have to Look For Post-trial? Aggregating Sentences Concurrent vs. Consecutive Violent Offender laws Sex Offender laws Persistent Felony Offender Statutes Probation Eligibility Parole Eligibility Client’s record Double Enhancement
Slide 3 : Aggregating
Sentences
Misdemeanors : Misdemeanors There are limits on how much time your client can receive at one time . . . Per KRS 532.110(1)(b), multiple misdemeanor convictions cannot be aggregated for more than 1 year.
Your Advice? : Your Advice? Client is charged with 4 Class D felonies and 3 Class C. Prosecutor says your client is looking at a maximum of 50 years and offers 25 to serve. Client wants to know if it’s a good offer Answer : NOPE!
Felonies – Class C and D : 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.”
The Break Down : 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 D felonies cannot be aggregated for more than 20 years.
The Exception : The Exception This does not apply when new felonies are committed while already on felony probation or parole.
Consecutive sentences in that instance can exceed 20 years for class C and D felonies.
Devore v. Com., 662 SW2d 829 (Ky. 1984)
How about A or B Felonies? : How about A or B Felonies? Client charged with Murder and Rape 1st. Jury recommends 50 years on the murder and 50 on the rape, consecutive, for a total of 100 years. Are we cool with that!? Client charged with Murder and Rape 1st. Jury recommends 50 years on the murder and 50 on the rape, consecutive, for a total of 100 years. Are we cool with that!?
Class A and B Felonies : Class A and B Felonies As of 1998, KRS 532.110(1)(c) set a limit of aggregated consecutive felony terms of years at 70 years.
Your Argument? : Your Argument? Client found guilty of Murder and Rape 1st, jury recommends life on the murder and 50 years on the rape, to run consecutively.
What about Life Sentences? : What about Life Sentences? 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);
But see, Stewart v. Com. 153 SW3d 789 (Ky. 2005)(def. had to serve-out a prior sentence before beginning his life sentence)
Slide 13 : Consecutive
Vs.
Concurrent
Your Argument? : Your Argument? Felony Phil commits a new felony offense while on felony probation for a prior offense.
Prosecutor says this one has to run consecutive to the first one.
But Phil hasn’t been revoked on the first yet.
While on Probation : 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)
Your Advice? : Your Advice? Probated Polly is charged with committing a new felony while on felony probation.
Prosecutor says if Polly wants to plead today he will remain silent and will not oppose them running concurrent.
Polly wants to sign the silent offer ASAP
Slide 17 : KRS 533.060(2) controls in the case of felonies committed on felony probation.
This is true even though KRS 532.110(2) seems to give a judge the ability to run the charges concurrently simply by not specifying how they should run.
Slide 18 : So…in this case, if the judge remains silent in the final judgment, DOC will calculate using consecutive time anyway!
Riley v. Parke, 740 SW2d 934 (Ky. 1987) Thanks DOC!
Slide 19 : Bottom line: Felonies committed while on felony probation have to run consecutively to one another
Whether the probation has been revoked or not,
And regardless of what the judge says!
Note on Probated Sentences : Note on Probated Sentences Sentences are no longer required to run consecutive to ALL other sentences (i.e. multiple felonies) in a new conviction
Any sentence for a new felony is only REQUIRED to run consecutive to the unserved time from the prior probated sentence
Slide 21 : What about a misdemeanor committed while on felony probation?
Answer: The judge can run it consecutively, but doesn’t have to.
Why?
Slide 22 : KRS 532.110(1) says: “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…”
Slide 23 : But KRS 533.040(3) says that: “A sentence of probation…shall run concurrently….unless the sentence of probation is revoked.”
Since the two statutes obviously conflict, the court can run the new misdemeanor consecutive to the old felony, but doesn’t have to.
Snow v. Com., 927 SW2d 841 (Ky.App. 1996)
Slide 24 : What about a felony committed on misdemeanor probation?
Answer: It’s the exact same conflict between the exact same two statutes. And the exact same answer.
Warren v. Com., 981 SW2d 134 (Ky.App. 1998)
Slide 25 : What about a misdemeanor committed on misdemeanor probation?
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 can run them consecutively but doesn’t have to. Walker v. Com., 10 SW3d 492 (Ky.App. 1999)
Slide 26 : So what happens in these situations if the court is silent with respect to concurrent or consecutive?
They must run concurrently!
Slide 27 : Special Situations in Which
Sentences Must Run Consecutively
Sex Crimes : Sex Crimes Two or more sex crimes involving two or more victims
KRS 532.110(1)(d)
Prohibited Ammo : 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)
Escape : Escape Your client is on probation for two separate prior felony convictions. He is now being revoked on felony probation for an escape conviction.
KRS 532.110(3) requires that sentences imposed for the crime of escape to run consecutive to “any other sentence” the defendant must serve.
Time of Revocation : Time of Revocation But, they waited more than 90 days to revoke this probation and KRS 533.040(3) says that, in that case, it has to run concurrent.
Kiser v. Com. 829 S.W. 2d 432
Nonetheless . . . : Nonetheless . . . KRS 532.110(3) controls over KRS 533.040(3), so the sentences on the two prior felonies will have to run consecutively.
Wilson v. Com., 78 SW3d 137 (Ky.App. 2001)
Awaiting Trial : Awaiting Trial Your client committed a new offense after being indicted but before even being arraigned! (But he had already been arrested and made bond in district court.)
Prosecutor says he was “awaiting trial” under 533.060(3) even if he was not in circuit court yet, and the sentences have to run consecutively.
Slide 34 : The client is “awaiting trial” even if he didn’t know he had been indicted yet.
Moore v. Com., 990 SW2d 618 (Ky. 1999)
Awaiting Trial : Awaiting Trial Your client commits a new offense after he has already pleaded guilty but before he makes it to sentencing.
Prosecutor says client is still “awaiting trial” even if there isn’t going to be a trial.
Between Plea and Sentencing : Between Plea and Sentencing 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, too. Handley v. Com., 653 SW2d 165 (Ky.App. 1983)
Slide 37 : Probation Eligibility
Your Argument? : Your Argument? Oliver Offender commits a new felony offense while on felony probation.
The prosecutor says, according to KRS 533.060(2), your client cannot be probated on the new felony charges.
Do You agree??
New Felony while on Felony Probation : New Felony while on Felony Probation Whoa, not so fast! It depends entirely on what the new charges are.
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!
Slide 40 : 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)
Slide 41 : Notice that KRS 533.030(6) also allows probation for charges mentioned in 532.045, which is a list of sex offenses which cannot be probated. (See the handout.)
Note, however, that 533.030(6) does not mention allowing probation for charges listed in KRS 439.265 (certain sex offenses) or KRS 439.3401 (violent offenses).
Your Argument? : Your Argument? Client pleads guilty to being a convicted felon in possession of a handgun. Minimum sentence recommended.
Prosecutor argues your client is not eligible for probation because the crime involved a projectile weapon.
Projectile Weapon : 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)
Your Advice? : Your Advice? Suspicious Steve is convicted of receiving stolen property over $300 and also of PFO 1st for two previous convictions for the same offense. Jury recommends 20 years.
Steve wants to know if he can get that 20-year sentence probated.
All Class D Felonies : 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)
Slide 46 : Parole Eligibility
Slide 47 : Manslaughter Mike is thinking about taking an offer of 30 years for 1st degree murder.
Wants to know his parole eligibility if he does.
The judge seems to think it is twenty-five and a half years
What do you think?
Slide 48 : For any violent offender sentence over 23 years and 6 months, the parole eligibility is 20 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)
Violent Offenders KRS 439.3401 : Violent Offenders KRS 439.3401 Judgement requirements
Parole is not the same for all listed
Lots of collateral consequences
Clashes with other statutes
Slide 50 : Your client who got twenty years for the receiving stolen property and PFO 1st wants to know if he’ll have to do “10 years to the board.”
With nothing but Class D felonies, his parole eligibility is 20%. He’ll be eligible in 4 years, minus credit for time already served.
Surely I Can Forget Sentencing Law During Trial? : Surely I Can Forget Sentencing Law During 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
This includes testimony about your client’s prior convictions, probation status, the nature of prior offenses, the impact of the crime on the victim, etc.
KRS 532.055
What about Juvenile Offenses? : What about Juvenile Offenses? The jury has just come back with a guilty verdict.
The Prosecutor begins to talk about Theft offenses your client had when she was a juvenile
Can she do that?
Slide 53 : Yes, if the conviction is for a crime which would have been a felony if committed by an adult
KRS 532.055 (2)(a)7
What about the “Victims”? : What about the “Victims”? 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
Are there are any arguments we can make?
YES! See KRS 421.500 which defines victim as one of a possibility of four options, not all 4
What about us? What Can We Say? : 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
Call witnesses
Have exhibits
Plan an opening and closing in advance
Fight the parole eligibility chart being admitted as evidence
Slide 56 : 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.”
Final Sentencing – Last Shot to Save : Final Sentencing – Last Shot to Save The jury recommends a 5 year sentence on Cold Carrie for a Burglary 3rd when it was shown she was homeless and freezing
Anything we can do with her sentence in front of the judge?
Absolutely, KRS 532.070, the Court can modify the sentence handed down by the jury
What Does the Judge Have to Consider? : What Does the Judge Have to Consider? Probation
Probation with an Alternative Sentence
Conditional Discharge
KRS 533.010 (2)
Presentence Investigation – The PSI : Presentence Investigation – The PSI Work early and often to influence this document
Be creative
You can write the crime story
Advocate to get in early – you have the right to a “Fair opportunity and reasonable period of time to controvert” the factual contents
KRS 532.050
Presentence Investigation – The PSI : Presentence Investigation – The PSI What if there are changes to be made after the PSI is finished?
Write out the changes to be made in order form and have the judge sign them.
Make sure a copy goes in the file and with Probation and Parole and ask for a copy of the new report.
Slide 61 : You Gotta Fight For your Client’s Right To Freedom
Persistent Felony Offender 532.080 : Persistent Felony Offender 532.080 Many Possible Consequences
Often Misunderstood
Very Technical
Age of Client : Age of Client Two separate time periods to Investigate
Age when past crimes were committed
Age at time of current conviction
Prior Felonies : Prior Felonies How many?
When was the sentence complete?
What are the convictions?
What was the sentence?
Prior Felonies – How Many? : Prior Felonies – How Many? Decides level of PFO
Is now different for some sex offenses
Watch carefully how more than 1 sentence served
Decides the effect of challenges
Or the prejudice of not challenging
Prior Felonies – When was the Sentence Completed? : Prior Felonies – When was the Sentence Completed? Did our client serve out?
Was our client on probation?
When did our client complete probation?
Is our client in jail right now?
Was our client actively on the run after escape?
Prior Felonies – What are the Convictions? : Prior Felonies – What are the Convictions? Are any of them felony sex crimes?
Are any of them drug related?
Prior Felonies – What was the Sentence? : Prior Felonies – What was the Sentence? Important for Out-of-state convictions
Was the conviction a felony or a misdemeanor?
Was the sentence imposed more than 1 year?
Ware v. Com. 47 SW 3d 333
Current Charge : Current Charge Is it a felony?
Is it Drug related?
What class is it?
Watch Out for Double Enhancement : Watch Out for Double Enhancement Happens most often with PFO
Felon in Possession of a Firearm
2nd or Subsequent Trafficking/Possession
Failure to Register as a Sex Offender
Ignore the caselaw
Sentencing is Hard . . . : Sentencing is Hard . . . But
we
work
harder!