JULIUS COLE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
OCTOBER 14, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2004-CA-002228-MR
JULIUS COLE
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 02-CR-00334
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE:
Julius Cole appeals from an order of the
McCracken Circuit Court, entered September 29, 2004, revoking
his conditional discharge from prison and ordering him to serve
the remaining three years of his sentence.
Cole contends that
the statute creating the three-year extension of his sentence is
an unconstitutional usurpation by the General Assembly of a
judicial function and that the extension amounts to a cruel and
unusual punishment.
Because Cole’s attack upon the statute was
not preserved and because his four-year total sentence for
first-degree sexual abuse is not grossly disproportionate, we
affirm.
In April 2003, a McCracken County jury found Cole
guilty of first-degree sexual abuse, a Class-D felony in Chapter
510 of the Penal Code, 1 and fixed his sentence at one year in
prison.
Cole was accused of having forcibly fondled the breasts
of a girl less than twelve years of age.
His felony implicated
KRS 532.043, which provides in pertinent part that
(1) In addition to the penalties authorized
by law, any person convicted of . . . a
felony offense under KRS Chapter 510 . . .
shall be subject to a period of conditional
discharge following release from . . .
[i]ncarceration upon expiration of sentence;
(2) The period of conditional discharge
shall be three (3) years;
(3) During the period of conditional
discharge, the defendant shall (a) Be
subject to all orders specified by the
Department of Corrections; (b) Comply with
all education, treatment, testing, or
combination thereof required by the
Department of Corrections.
. . .
(5) If a person violates a provision
specified in subsection (3) of this section,
the violation shall be reported in writing
to the Commonwealth’s attorney in the county
of conviction. The Commonwealth’s attorney
may petition the court to revoke the
defendant’s conditional discharge and
1
KRS 510.110.
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reincarcerate the defendant as set forth in
KRS 532.060.
KRS 532.060(3) provides that
[f]or any felony specified in KRS Chapter
510 . . . the sentence shall include an
additional three (3) year period of
conditional discharge which shall be added
to the maximum sentence rendered for the
offense. During this period of conditional
discharge, if a defendant violates the
provisions of conditional discharge, the
defendant may be reincarcerated for: (a) The
remaining period of his initial sentence, if
any is remaining; and (b) The entire period
of conditional discharge, or if the initial
sentence has been served, for the remaining
period of conditional discharge.
Accordingly, by judgment entered June 2, 2003, the
McCracken Circuit Court sentenced Cole to one year in prison
plus three years of conditional discharge, in effect a four-year
sentence.
Cole served out the first year and was conditionally
discharged from prison in February 2004.
Among the conditions
of his discharge were requirements that he complete a two-year
sex-offender treatment course, that he refrain from drinking
alcohol, and that he not be convicted of any additional crimes.
In June 2004, he was brought before the Court on
allegations that he had refused to attend sex-offender treatment
classes.
When he explained that he did not refuse to take the
classes but only sought to postpone commencing them until his
car was operable, which it then was, the court gave him the
benefit of the doubt and did not revoke his discharge.
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Only four months later, however, in September 2004,
Cole was again brought before the court on allegations this time
that he had pled guilty to a charge of driving under the
influence.
During the hearing he admitted the offense and
admitted further that on several weekends during his release he
had possessed and consumed alcohol.
For these breaches of the
conditions of Cole’s release, the court revoked his discharge
and ordered him reincarcerated for the remainder of the threeyear discharge period.
appealed.
It is from that order that Cole has
He contends that the mandatory three-year extension
of certain sex-offense sentences under KRS 532.043 amounts to
legislative usurpation of judicial sentencing discretion in
violation of the separation-of-powers doctrine, that it violates
the penal code’s policy of individualized sentencing, and that
it diminishes a defendant’s right to be sentenced by a jury.
None of these issues was raised before the trial court
and so was not preserved for appellate review.
In particular,
to the extent that Cole complains that KRS 532.043 is
unconstitutional he failed to give notice of his claim to the
Attorney General as required by KRS 418.075 and CR 24.03.
For
this reason alone his claim that KRS 532.043 is invalid must
fail. 2
2
Brashars v. Commonwealth, 25 S.W.3d 58 (Ky. 2000).
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His claim also lacks merit.
Defining crimes and their
punishments is purely a legislative function. 3
Neither the
federal nor the state constitution forbids mandatory sentences, 4
or requires individualized 5 or jury sentencing. 6
KRS 532.043
does not usurp a judicial function, therefore, and is not
unconstitutional for any of the reasons Cole suggests.
To the
extent that Cole relies on statutory policies favoring
individualized or jury sentencing, his argument overlooks the
fact that the General Assembly is free to give effect to and to
alter those policies as it sees fit. 7
KRS 532.043 is within that
authority.
Cole also insists that the three-year extension of his
jury sentence mandated by KRS 532.043 violates the protections
against cruel and unusual punishments provided by the Eighth
Amendment to the United States Constitution and Section 17 of
the Kentucky Constitution.
Cole argues that he has, in effect,
3
Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d
836 (1991); Hoskins v. Maricle, 150 S.W.3d 1 (Ky. 2004).
4
Harmelin v. Michigan, supra; Bartrug v. Commonwealth, 582
S.W.2d 61 (Ky.App. 1979).
5
Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114
L.Ed.2d 524 (1991).
6
Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d
340 (1984); Perry v. Commonwealth, 407 S.W.2d 714 (Ky. 1966).
7
Commonwealth, ex rel. Cowan v. Wilkinson, 828 S.W.2d 610 (Ky.
1992) Workman v. Commonwealth, 429 S.W.2d 374 (Ky. 1968).
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been given a three-year sentence for the misdemeanor of first
offense DUI.
In fact, of course, Cole’s entire sentence, including
the three years’ conditional discharge which has become three
years’ imprisonment, is punishment not for DUI but for firstdegree sexual abuse, for his forcible sexual assault upon a
child under twelve.
The United States Supreme Court has
recently held that a sentence for a term of years does not
violate the Eighth Amendment unless it is grossly
disproportionate to the gravity of the offense. 8
The Court noted
that “courts should be reluctant to review legislatively
mandated terms of imprisonment, and that successful challenges
to the proportionality of particular sentences should be
exceedingly rare.” 9
Similarly, a sentence to a term of years
does not violate Section 17 of Kentucky’s Constitution unless it
is so disproportionate to the crime as to shock the conscience. 10
Cole’s four-year sentence does not meet those
standards.
Even with the additional three years mandated by KRS
532.043, Cole’s sentence is less than the maximum for a class-D
felony; he was assured of conditional discharge after having
8
Ewing v. California, 532 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d
108 (2003).
9
10
Id. at 22, 1186.
Workman v. Commonwealth, supra.
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served one year; and he may still benefit from parole.
This
sentence, which rationally reflects the General Assembly’s
concern about sex-offender recidivism by requiring the
additional three years of supervision and treatment, is not
grossly disproportionate to a felony sex crime against a child.
In sum, Cole has failed to establish that either KRS
532.043 or the particular sentence that statute has given rise
to in this case is unconstitutional or otherwise invalid.
Accordingly, we affirm the September 29, 2004, order of the
McCracken Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Assistant Pubic Advocate
Department of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Ian G. Sonego
Assistant Attorney General
Frankfort, Kentucky
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