ROBERT K . LAWSON V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED : SEPTEMBEI ,22002
TO B'E PUaLISr~E~b
ROBERT K. LAWSON
V.
APPEAL FROM LAUREL CIRCUIT COURT
HON . RODERICK MESSER, JUDGE
99-CR-0034
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING IN PART. REVERSING AND REMANDING IN PART
I . INTRODUCTION
A Laurel County Circuit Court jury convicted Appellant of First-Degree Fleeing or
Evading Police and Felony Receiving Stolen Property, found Appellant eligible for
enhanced sentencing as a First-Degree Persistent Felony Offender (PFO), and
recommended consecutive terms of twelve (12) years and six (6) months imprisonment
for each offense. At final sentencing, the trial court sentenced Appellant to ten (10)
years for each offense, and ordered the sentences to run consecutively for a total
sentence of twenty (20) years imprisonment . Appellant thus appeals to this Court as a
matter-of-right.' After a review of the record, we affirm Appellant's convictions and
PFO-enhanced ten (10) year sentences, but reverse the judgment to the extent that it
orders those terms of imprisonment to run consecutively and remand the case to the
' Ky. Const . § 110(2)(b) .
trial court for a new sentencing hearing at which a jury will make a recommendation as
to whether Appellant serves his ten (10) year sentences concurrently or consecutively,
in whole or in part.
II . FACTUAL BACKGROUND
On February 14, 1999, Appellant was employed to detail cars at his step-uncle
Jim Sharp's used car dealership . That night, a 1986 Pontiac Firebird was taken from
the lot without Sharp's permission . Laurel County Deputy Sheriff Jerry Hollon was on
routine patrol that evening when he observed a 1986 Pontiac Firebird speeding down
the road . Deputy Hollon engaged his marked vehicle's siren and flashing lights in an
attempt to alert the driver of the Firebird to pull the automobile over . Instead, the driver
fled, speeding up, running traffic lights, and violating lane discipline . Deputy Hollon
pursued the Firebird and other officers soon joined in the pursuit .
During the chase, the Firebird reached speeds of between one-hundred (100)
and one-hundred and twenty-five (125) miles per hour . It traveled on Interstate 75
where it made a U-turn in the grass median and reversed direction .
Hoping to force
the driver of the vehicle to stop, the police set up a rolling roadblock. The driver,
however, attempted to pass the roadblock in the emergency lane, lost control, and
crashed into the guard rail. The car became airborne and landed in the median. The
driver opened the car door and ran into the nearby woods.
Deputy Hollon testified that he saw the driver's profile twice - once during the UTurn and again when the driver exited the Firebird - and broadcasted a description of
the driver over the police radio . Within forty-five (45) minutes, two (2) state police
officers apprehended Appellant, who matched the description given by Deputy Hollon,
at a nearby gas station.
Appellant was indicted for First-Degree Fleeing or Evading Police, Felony
Receiving Stolen Property, and being a First-Degree Persistent Felony Offender . At
trial, the Commonwealth relied upon the testimony of Deputy Hollon and the owner of
the vehicle . Appellant's primary defense to the charge was that Deputy Hollon was
mistaken in his identification .
Appellant testified that, during the time that Deputy
Hollon was chasing the Firebird, he was hitchhiking and was picked up by strangers
who robbed him and left him beside the road when he refused to smoke marijuana with
them . Appellant testified that he was attempting to call his girlfriend for a ride home
when the police apprehended him at the gas station .
The jury found Appellant guilty of the indicted offenses, found Appellant eligible
for enhanced sentencing as a First-Degree PFO, recommended enhanced sentences
of twelve (12) years and six (6) months for each offense, and recommended that the
two (2) sentences run consecutively for a total sentence of twenty-five (25) years . At
final sentencing, the trial court reduced each sentence to ten (10) years and ordered
the two (2) sentences to run consecutively for a total sentence of twenty (20) years .
This appeal follows .
III. ANALYSIS
A. LESSER-INCLUDED OFFENSE INSTRUCTIONS
Appellant alleges that the trial court erred by failing to instruct the jury that it
could return verdicts as to the lesser-included misdemeanor offenses of SecondDegree Fleeing or Evading Police and Unlawful Use of an Automobile. We analyze
both allegations of error in accordance with the well-settled principles that: (1) "it is the
duty of the trial judge to prepare and give instructions on the whole law of the case . . .
[including] instructions applicable to every state of the case deducible or supported to
any extent by the testimony" ; 2 and (2) Although a defendant has "a right to have every
issue of fact raised by the evidence and material to his defense submitted to the jury on
proper instructions, ,3 the trial court should instruct as to lesser-included offenses "`only
if, considering the totality of the evidence, the jury might have a reasonable doubt as to
the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt
that he is guilty of the lesser offense . -4 In the case sub judice, we find that the trial
court properly denied Appellant's requested lesser-included offense instructions .
1 . SECOND-DEGREE FLEEING AND EVADING
The Grand Jury's charge of First-Degree Fleeing or Evading Police read :
That on or about the 14th of February, 1999, in Laurel
County, Kentucky, the above named defendant, acting alone
or in concert with others, committed the offense of Fleeing or
Evading a Police Officer in the First Degree by operating a
motor vehicle on the public highways at high rates of speeds
[sic] exceeding 100 mph and in the course of fleeing created
a substantial risk of harm to another person, and all such
acts committed while fleeing from or evading a police
officer[.]
The indictment thus charged First-Degree Fleeing or Evading Police as defined in KRS
520.095(1)(a)(4) :
A person is guilty of fleeing or evading police in the first
degree :
(a)
When, while operating a motor vehicle with intent to
elude or flee, the person knowingly or wantonly
disobeys a direction to stop his or her motor vehicle,
given by a person recognized to be a police officer,
and at least one (1) of the following conditions exists :
2Taylor v. Commonwealth , Ky., 995 S .W.2d 355, 360 (1999).
'Id .
4Gabow v. Commonwealth , Ky., 34 S .W.3d 63, 72 (2000) (q_
uotin_ Houston v .
g
Comonwealth , 975 S .W.2d 925, 929 (1998)) .
(4)
By fleeing or eluding, the person is the
cause, or creates substantial risk, of
serious physical injury or death to any
person or property[.]5
The trial court's instruction to the jury tracked the language of KRS 520.095(1)(a)(4) :
INSTRUCTION NO. 3
First-Degree Fleeing or Evading Police
You will find the Defendant guilty of First-Degree Fleeing
or Evading Police under this Instruction if, and only if, you
believe from the evidence beyond a reasonable doubt all of
the following :
A.
That in this county on or about February 14, 1999,
and within 12 months before the finding of the
indictment herein, he operated a motor vehicle with
the intent to flee or elude ;
B.
That he knowingly or wantonly disobeyed a direction
to stop his motor vehicle, which direction was given
by a person who he recognized to be a police officer;
AND
C.
That his act of fleeing or eluding caused or created a
substantial risk of serious physical injury or death to
any person or serious injury to property .
Appellant alleges that the trial court erred when it failed to instruct the jury as to
the lesser-included misdemeanor offense of Second-Degree Fleeing or Evading Police
defined at KRS 520.100(1):
5KRS 520.095(1).
6The trial court's jury instruction substantially mirrored the specimen instruction
contained in 1 Cooper, Kentucky Instructions to Juries, § 7.36A (Anderson Publishing
Co ., Cum. Supp. 2002) (hereinafter, "Cooper"), although the "within 12 months before
the finding of the indictment herein" language in Paragraph (A) of the trial court's
instruction differs from the specimen instruction and, more important, appears
unnecessary because First-Degree Fleeing or Evading Police is a felony offense not
subject to a twelve (12) month statute of limitations . KRS 500 .050(1). We also observe
that, because no evidence at trial would support the conclusion that Appellant actually
caused serious physical injury or death to persons or property, Paragraph (C) of the trial
court's instruction should have omitted that theory of aggravation and include only the
"created a substantial risk" theory .
A person is guilty of fleeing or evading police in the
second degree when, while operating a motor vehicle with
intent to elude or flee, the person knowingly or wantonly
disobeys a recognized direction to stop his vehicle, given by
a person recognized to be a peace officer .'
Second-Degree Fleeing or Evading Police differs from the First-Degree felony
offense in that "[t]he presence of one of the aggravating factors set forth in [KRS
520 .095(a)(1)-(4)] enhances the offense from a Class A misdemeanor to a Class D
felony ."' As the only aggravating circumstance relevant to this case is the one set forth
at KRS 520 .095(1)(a)(4) - e.g ., "by fleeing or eluding, the person is the cause, or
creates substantial risk, of serious physical injury or death to any person or property" we determine whether Appellant was entitled to a lesser-included offense instruction of
Second-Degree Fleeing or Evading Police by examining whether a jury could have
possessed reasonable doubts as to Paragraph (C) of the trial court's instruction but
nonetheless believed the facts described in Paragraphs (A) and (B) beyond a
reasonable doubt. Here, the Commonwealth introduced no evidence to permit a jury to
conclude that the driver's actions actually caused serious physical injury or death to any
person or serious injury to property,' and the inquiry thus becomes whether a jury could
7
KRS 520.100(1).
'Cooper, supra note 6 at § 7 .36C, comment .
'Although the instructions given in this case and the specimen instructions in
Justice Cooper's treatise refer to "serious injury to property," a literal reading of the
statute would require a jury finding that the Defendant's act of fleeing or evading
created a substantial risk of "serious physical injury or death" to property . Some
observers have noted that this phrasing is largely incoherent in light of the KRS
500.080(15) definition of "serious physical injury ." See Robert G . Lawson & William H .
Fortune, Kentucky Criminal Law, § 15-2(f) (LEXIS 2000 Supp.). Interpretation of this
curious phrasing is, however, unnecessary to our resolution of this case because we
resolve the relevant issues solely in reference to the substantial risk of serious physical
injury or death to persons.
have had reasonable doubts as to whether the fleeing driver's conduct created a
substantial risk of such results .
Although we recognize that, in the vast majority of cases, the question of
whether an actor's fleeing or evading created a substantial risk of such results is subject
to reasonable disagreement, and, therefore, the misdemeanor offense will typically be a
necessary lesser-included offense of First-Degree Fleeing or Evading Police," we find
the evidence in this case overwhelming and conclude that no jury could reasonably
have believed that Appellant fled or evaded police but did not create a substantial risk
of death or serious physical injury to any person.
The stolen Firebird was driven at
speeds of up to 125 miles per hour - almost twice the legal speed limit even on an
interstate highway. On more than one occasion, the driver sped through an intersection
while disregarding traffic control devices and weaving the Firebird between vehicles
stopped in his path . Finally, the driver attempted to avoid a police roadblock by passing
the roadblock in an emergency lane, and the Firebird became airborne after crashing
into a guard rail. We can envision no reasonable challenge to the conclusion that
Appellant's actions created a substantial risk of serious physical injury or death - to
other motorists and police officers in his path, not to mention himself . Therefore, we
conclude that the trial court properly denied Appellant's request for it to instruct the jury
as to the lesser-included offense of Second-Degree Fleeing or Evading Police .
2. UNAUTHORIZED USE OF AN AUTOMOBILE
The Grand Jury's charge of Felony Receiving Stolen Property read :
[O]n or about the 14th day of February, 1999, in Laurel
County, Kentucky, the above named defendant, acting alone
"Cooper, supra note 6 at § 7.36C, comment .
or in concert with others, committed the offense of Receiving
Stolen Property of the Value of $300 or More by receiving
and possessing a 1986 Pontiac Firebird automobile of the
value of $300 or more which had been stolen from Jim
Sharp[ .J
The indictment thus charged the offense of Receiving Stolen Property as defined in the
version of KRS 514 .110 then in force :
(1)
A person is guilty of receiving stolen property when he
receives, retains, or disposes of movable property of
another knowing that it has been stolen, unless the
property is received, retained, or disposed of with
intent to restore it to the owner.
(3)
Receiving stolen property is a Class A misdemeanor
unless the value of the property is three hundred
dollars ($300) or more . . . in which case it is a Class
D felony ."
The trial court's instruction to the jury tracked the language of the prior version of KRS
514.110:
INSTRUCTION NO. 4
Receiving Stolen Property - Value $300 or More
You will find the Defendant guilty of Receiving Stolen
Property under this Instruction if, and only if, you believe
from the evidence beyond a reasonable doubt all of the
following:
A.
That in this county on or about February 14, 1999,
and before the finding of the Indictment herein, he
had possession of a 1986 Pontiac Firebird automobile
which belonged to Jim Sharp;
B.
That said 1986 Pontiac Firebird automobile had been
stolen from Jim Sharp and the Defendant knew it was
stolen property when he had possession of it;
"KRS 514.110 . The 2000 General Assembly amended KRS 514 .110 to extend
the culpable mental state to include persons "having reason to believe that it has been
stolen," 2000 Ky. Acts . ch . 490, § 2, and to provide separate penalties for receiving
stolen property offenses involving anhydrous ammonia . 2000 Ky. Acts. ch 233, § 9 .
C.
That he did not have possession of the 1986 Pontiac
Firebird automobile with the intention of restoring it to
its rightful owner;
AND
D.
That when the Defendant had possession of the 1986
Pontiac Firebird Automobile, it had a value of $300 .00
or more.
Appellant argues that the trial court erred to his substantial prejudice when it
failed to instruct the jury as to Unauthorized Use of an Automobile as a lesser-included
offense of the indicted offense of Felony Receiving Stolen Property . KRS 514.100
defines the offense of Unauthorized Use of an Automobile :
A person is guilty of the unauthorized use of an automobile
or other propelled vehicle when he knowingly operates,
exercises control over, or otherwise uses such vehicle
without consent of the owner having legal possession
thereof ."
The Penal Code Commentary to KRS 514.100 explains that the offense of
Unauthorized Use of an Automobile provides criminal sanctions for conduct that does
not rise to the level of the Kentucky Penal Code theft offenses :
This section is directed primarily against "joy riding"
generally committed by youngsters . It is necessary because
it covers conduct not amounting to theft under other sections
of this chapter. There is no intention to deprive the owner of
his property or to appropriate property . '3
As the Court of Appeals observed in Logan v. Commonwealth , '4 the offenses of
Receiving Stolen Property and Unauthorized Use of an Automobile can be
distinguished by the requirements as to the defendant's knowledge as well as the
defendant's intentions as to the automobile :
12
KRS 514 .100(1) .
"Commentary to KRS 514.100 (Banks/Baldwin 1974) .
14Ky.App ., 785 S .W.2d 497 (1990) .
"Unauthorized use" involves the use of a vehicle without
the consent of the owner. A conviction for receipt of stolen
property, on the other hand, requires the Commonwealth to
prove that the defendant both knew that the property was
stolen and intended not to restore it to its owner."
In other words, the offense of Felony Receiving Stolen Property requires proof of three
(3) elements that the offense of Unauthorized Use of an Automobile does not : (1) the
defendant must know (or, under the statute as amended, have reason to know) that the
automobile is stolen property ; (2) the defendant must not possess the vehicle with the
intention of returning it to its rightful owner; and (3) the vehicle must have a value of
three hundred dollars ($300) or more . We recognize that the "knowing" mental states
for the offenses overlap substantially - a defendant who drives another's vehicle when
he knows it to be stolen property will, almost by definition, "knowingly operate[] . . . such
vehicle without consent of the owner having legal possession thereof." And, as the
value of the vehicle possessed is irrelevant to the offense of Unauthorized Use of an
Automobile, we assess whether Appellant was entitled to the requested lesser-included
offense instruction by examining whether the evidence would have permitted a jury to
form reasonable doubts as to Paragraph (C) of the trial court's instruction - i.e.,
whether the evidence would reasonably have supported a belief that Appellant
possessed the vehicle with the intention of restoring it to its owner - but otherwise
conclude beyond a reasonable doubt that Appellant knowingly operated an automobile
without the owner's consent . As the Court of Appeals did in Loaan , "[w]e do not think
there was any substantial evidence at trial to support the requested instruction, and we
affirm its denial ."' s
In short, we find absolutely no evidence upon which a jury could reasonably base
a belief that Appellant intended to return the vehicle to its proper owner. Appellant
argues that such an inference could be based upon evidence that: (1) the vehicle was
taken from a family member; (2) as an employee of the car lot, Appellant had
permission to drive certain vehicles on the lot (a contention that does not assist
Appellant because, if he had permission - or believed he had permission - to drive
the vehicle, he would have a defense to both the greater and lesser offenses"); and (3)
that the Firebird was eventually returned to its owner. We find Appellant's "spin" of the
evidence highly disingenuous . The trial testimony demonstrated that Appellant did
have permission to drive one (1) vehicle on the lot - a vehicle upon which he was
making installment payments - but that vehicle was not the Firebird . Further, while
Appellant is factually correct in his statement that the Firebird was eventually returned
to its owner, the return took place months after the incidents that gave rise to this
indictment, and law enforcement officers - not Appellant - returned it.
Of course,
Appellant is unable to point to any of his own testimony to support the lesser-included
offense instruction because he disclaimed any role in the pursuit, and, as such, his
"testimony, if believed, would appear to exonerate him of any criminal wrongdoing,
rather than convict him of unauthorized use of a vehicle ."' a
16
Id .
"Id.
18
Id .
We have held that "intent may be inferred from actions because a person is
presumed to intend the logical and probable consequences of his conduct, and a
person's state of mind may be inferred from actions preceding and following the
charged offense ."" In this case, Appellant's argument for the lesser-included offense
instruction myopically ignores any of the events after Deputy Hollon turned on his lights
and siren . Even if we assume arguendo that Appellant may have originally merely
"borrowed" the Firebird with the intention of returning it to his step-uncle's used car lot
without anyone knowing - a theory which, itself, rests on nothing more than pure
speculation and the fact that the car's owner was Appellant's step-uncle - Appellant
unquestionably changed his intentions when he began his attempt to avoid detection .2°
After hearing the evidence that Appellant undertook a reckless flight - literally, as the
Firebird became airborne at one point - from police authorities, actually abandoned
the vehicle in a median, and escaped on foot, no reasonable jury could conclude that
Appellant intended to return the Firebird to its rightful owner during the entirety of time
he operated the vehicle. Appellant thus seeks an instruction on a lesser offense that is
supported by no evidence presented either by himself or by the Commonwealth .
As
was the case in Logan , the jury could have believed either the Commonwealth's
evidence or Appellant's evidence, but none of that evidence supported an instruction on
Unauthorized Use of an Automobile . The trial court properly denied Appellant's
requested lesser-included offense instruction, and the jury chose to believe the
Commonwealth's evidence . We find no error.
'9Stopher v. Commonwealth , Ky ., 57 S.W.3d 787, 802 (2001) .
2°Model Penal Code §223 .6, comment 4(a) (Official Draft and Revised
Comments 1985) .
-12-
B. SENTENCING PHASE
At the combined PFO/Truth-in-Sentencing phase, Probation and Parole Officer
Josh Tye testified on behalf of the Commonwealth regarding PFO enhancement, the
relevant penalty ranges, and Appellant's parole eligibility for the offenses . Over
Appellant's objection, Officer Tye testified, erroneously, that the maximum sentence of
imprisonment the jury could fix for Appellant's crimes, if the jury chose the maximum
term of imprisonment for each offense and ordered the two (2) sentences to run
consecutively, was forty (40) years . In fact, the maximum term of imprisonment that
Appellant could receive for his Class D felony offenses enhanced by his First-Degree
PFO status was twenty (20) years.2' During The Commonwealth's PFO/Truth-inSentencing Phase closing argument, the prosecuting attorney explained that the
functional penalty range in light of both PFO-enhancement and the jury's decision as to
whether the two (2) sentences were to run concurrently or consecutively, was from ten
(10) to forty (40) years and advised the jury that, while he did not think Appellant
deserved the maximum penalty, he would recommend that the jury fix a total penalty of
twenty (20) years .
The jury fixed Appellant's penalty at twelve (12) years and six (6) months for
each conviction, and indicated that the sentences should run consecutively - a total of
twenty-five (25) years . Appellant filed a motion for a new trial in which he advised the
trial court that the jury's sentence fell outside the permissible range, and the
21 KRS 532 .110(1)(c) ; KRS 532 .080(6)(b) ; Young v. Commonwealth , Ky., 968
S .W.2d 670, 675 (1998) .
-13-
Commonwealth conceded the error," but asked the trial court to "remedy the problem
"Although the parties to this appeal address only the evidentiary error that
occurred when the trial court permitted the Commonwealth to introduce factually
incorrect information regarding the available penalty range through the testimony of a
Probation and Parole Officer, we observe that the trial court's PFO/Truth-in-Sentencing
Phase instruction on concurrent/consecutive sentencing instruction and verdict form
similarly did not correctly inform the jury of its responsibility . Instruction No . 6 read :
You will further recommend in your verdict whether the
punishments which you have fixed for the Defendant should
be served concurrently (at the same time) or consecutively
(one to begin after the completion of the other).
The relevant portion of the verdict form read:
As to : CONCURRENT - CONSECUTIVE RECOMMENDATION:
We, the jury, recommend that the punishments fixed for the
Defendant above be served as follows :
(CIRCLE ONE)
CONCURRENTLY
CONSECUTIVELY
FOREPERSON
As we have indicated previously in Commonwealth v . Pelfrev, Ky., 998 S.W .2d 460
(1999), a proper instruction and verdict form should advise the jury "that it is not
required to recommend that all sentences be run all concurrently or all consecutively,
but that it may recommend that some sentences be run concurrently and others
consecutively." Id . at 462 . Accordingly, we suggest a more informative and correct
verdict form in this case would read :
We, the jury, recommend that the sentences fixed for the
Defendant under Counts 1 and 2 above shall be served
concurrently (at the same time) or consecutively (one to
begin after the completion of the other), in whole or in part,
as follows :
For a total sentence of
years, not to exceed,
however, a total sentence of twenty (20) years .
- 1 4-
(continued. . .)
by reducing the defendant's sentence on each enhanced D felony to ten years, and
then running those sentences consecutively." The trial court did as the Commonwealth
suggested," and the trial court's final judgment sentenced Appellant to the minimumPFO-enhanced sentence of ten (10) years for each offense, but ordered the two (2)
sentences to run consecutively, for a total sentence of twenty (20) years .
Appellant contests the trial court's resentencing as violating his rights of due
process and argues that the twenty (20) year sentence is contrary to the jury's intent.
Appellant reasons that, based on the erroneous information given to the jury during the
PFO/Truth-in-Sentencing phase, the jury believed it was considering a range of
penalties between "goalposts" of ten (10) years - the minimum possible sentence and forty (40) years - the maximum penalty, according to the incorrect information
given to the jury. Appellant observes that the jury refrained from selecting the
maximum punishment, and instead selected the midpoint - twenty-five (25) years .
Appellant maintains that the trial court's modification of the sentence is improper
because it ignored the jury's decision not to impose the maximum sentence, and
Appellant encourages us to reduce his sentence to twelve (12) years and six (6)
22(. . . continued)
Upon resentencing in this case, the last phrase ("not to exceed . . . "), may be omitted
because consecutive sentences for Appellant's two (2) ten (10) year sentences cannot
exceed the twenty (20) year maximum .
23We observe that, in order to reach a lawful
sentence, the trial court could have
imposed the twelve (12) years and six (6) months that the jury recommended for each
of Appellant's crimes, but ordered five (5) years of the sentence for one (1) of the
convictions to run concurrently with the other sentence . Instead, the trial court
exercised its discretion under KRS 532 .070(1) to modify the jury's sentence in a
situation where the trial judge "is of the opinion that a sentence of imprisonment is
necessary but that the maximum term fixed by the jury is unduly harsh[ .]" KRS
532 .070(1) .
- 1 5-
months . Although certain language in Foley v . Commonwealth 24 appears to prescribe
such a modification of Appellant's consecutive sentences, we hold that such relief
would be inappropriate in this case because the trial court has exercised its discretion
under KRS 532.070(1) to modify the jury's sentences as to each charge
2'
and by
ordering Appellant's convictions to run concurrently, we would impose a minimum
sentence of ten (10) years of which the jury was aware, but rejected . We also perceive
a difference between an instructional error that fails to inform the jury of the full extent
of its power to recommend that sentences run partially concurrently and partially
consecutively and the evidentiary error in this case that has the effect of distorting the
jury's conception of the available sentencing range. Nonetheless, we believe that
Appellant is entitled to a different form of relief.
Although we recognize that trial courts have the authority to make a final
decision whether a defendant's sentences are to run concurrently or consecutively, 26
and that juries' determinations as to that issue are merely recommendations, we
decline the Commonwealth's invitation to find that the error in this case is harmless .
While this Court has held that a defendant in an RCr 11 .42 context could not satisfy his
burden of proving prejudice as to a comparable error because of the trial court's
ultimate authority to decide whether multiple felony sentences run concurrently or
2'Ky
., 942 S.W.2d 876, 886 (1997) ("Should a jury hand down consecutive
sentences that are out of the range of the statutes, the trial court has the power and
duty to declare all sentences to run concurrently ." (emphasis added) .
21See note 23, supra.
KRS 532 .110(1) ("[M)ultiple sentences shall run concurrently or consecutively
as the court shall determine at the time of sentence . . . ." (emphasis added)) .
26
2'KRS 532 .055(2) ; Dotson v. Commonwealth , Ky., 740 S.W.2d 930 (1987) .
- 1 6-
consecutively," in Stoker v. Commonwealth ," a majority of this Court rejected the
contention errors in concurrent/consecutive jury instructions will be harmless because
the trial court makes the ultimate decision ." This Court has recognized that a jury's
recommendation as to concurrent or consecutive sentencing is far from meaningless or
pro forma, and that the jury's recommendation in this regard has "significance,
meaning, and importance . "3' We believe that to declare the error in this case harmless
would effectively delete KRS 532 .055(2)'s requirement that "[t]he jury shall recommend
whether the sentences shall be served concurrently or consecutively "32 and would
ignore the jury's important role in the sentencing process.
Because the minimum PFO-
enhanced sentence for each of Appellant's offenses is ten (10) years, it is an
incontrovertible fact that the trial court could have sentenced Appellant to twenty (20)
years regardless of the sentences for each conviction fixed by the jury and the jury's
recommendation as to whether those sentences should run concurrently or
consecutively . 33 However, it is also a fact that, because of the improper information
given to the jury regarding the maximum sentence it could fix, no one will ever know
"Commonwealth v Pelphrey , supra note 22 .
29Ky ., 828 S.W.2d 619 (1992) .
So ld. at 627. See also Commonwealth v.
Pelphrgy , supra note 22 at 462
(distinguishing Stoker, a direct appeal, from an RCr 11 .42 post-conviction action) .
"Dotson v. Commonwealth , supra note 27 at 931 . See also Stoker v.
Commonwealth , supra note 22 at 627 .
KRS 532.055(2) (emphasis added) .
33 In
fact, the trial court could have sentenced Appellant to a twenty (20) year term
of imprisonment even if the jury was unable to agree upon sentences for the offenses
after it determined Appellant's PFO status KRS 532.055(4) ("In the event that the jury is
unable to agree as to the sentence or any portion thereof and so reports to the judge,
the judge shall impose the sentence within the range provided elsewhere by law .").
32
- 1 7-
what sentence the jury would have recommended if had deliberated Appellant's
punishment in reference to the proper maximum penalty "goalpost" - twenty (20)
years. While we may reasonably assume that the jury would not have chosen the
minimum penalty of ten (10) years by recommending the minimum sentence on each
offense to be served concurrently (because the jury did have full knowledge of the
minimum penalty), we have no basis to assume that the jury would necessarily have
chosen the maximum penalty of twenty (20) years if it was in possession of full and
complete information about the penalty range . The jury could easily have again
selected the midpoint of the range -fifteen (15) years . Although we recognize that
the trial court may again elect to sentence Appellant to a total sentence of twenty (20)
years, we believe due process entitles Appellant to a jury recommendation as to
whether the sentences for his convictions run concurrently or consecutively, and we
also know that the jury's recommendation will be considered by the trial court before it
makes a final decision . We thus reverse the judgment to the extent that it orders
Appellant's ten (10) year terms to run consecutively, and we remand the case to the
trial court for it to conduct a new sentencing phase in accordance with Boone v.
Commonwealth at which the jury will recommend only whether the ten (10) year
sentences for Appellant's two (2) convictions should be run consecutively or
concurrently, in whole or in part.
IV. CONCLUSION
For the above reasons, we affirm Appellant's First-Degree Fleeing or Evading
Police and Receiving Stolen Property convictions as well as the PFO-enhanced ten (10)
14Ky .,
821 S.W.2d 813 (1992).
- 1 8-
year prison sentences imposed for each conviction, but we reverse the judgment to the
extent that it orders that the two (2) sentences run consecutively for a total sentence of
twenty (20) years, and we remand the case to the trial court for a new sentencing
hearing at which a jury will make a recommendation as to whether Appellant serves
those sentences concurrently or consecutively, in whole or in part.
Lambert, C.J . ; Johnstone and Stumbo, JJ ., concur . Cooper, J ., concurs in part
and dissents in part by separate opinion in which Graves and Wintersheimer, JJ., join .
COUNSEL FOR APPELLANT :
Karen Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
A. B . Chandler, III
Attorney General
Matthew D . Nelson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
RENDERED : SEPTEMBER 26, 2002
TO BE PUBLISHED
~IipCPritE Tourt of lKienturkV
2000-SC-0024-TG
ROBERT K . LAWSON
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HON . RODERICK MESSER, JUDGE
99-CR-0034
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE COOPER
CONCURRING IN PART AND DISSENTING IN PART
I concur in that portion of the majority opinion that affirms Appellant's convictions
and reverses his sentences because of the introduction of inaccurate parole eligibility
evidence. However, I dissent from the dicta in the opinion that purports to amend by
judicial fiat two provisions of the Kentucky Penal Code, viz: KRS 532.055(2) and KRS
532 .110(1) .
KRS 532 .055(2) provides, inter alia :
The jury shall recommend whether the sentences shall be served
concurrently or consecutively.
Similarly, KRS 532 .110(1) provides, inter alia :
[M]ultiple sentences shall run concurrently or consecutively as the court
shall determine at the time of sentencing except . . . .
The majority opinion would amend (if it were in a holding instead of dicta) each
of these statutes by adding after the phrase, "concurrently or consecutively," a new
phrase, "in whole or in part," slip op . at 2, 14 n .22, and by suggesting that it was error
not to inform the jury "of the full extent of its power to recommend that sentences run
partially concurrently and partially consecutively ." Id. at 16. It should be noted at the
outset that this proposition was not raised by either party and is irrelevant to a decision
on the merits of any issue that was raised and decided in this case. And, as will be
discussed, infra , it is also an unnecessary exercise in immateriality .
The majority's dicta asserts that a jury should be instructed that it has the
authority to piecemeal its "concurrent or consecutive" recommendation, an
authorization not contained in KRS 532 .055(2), the only source of a jury's authority to
make any recommendation at all with respect to concurrent or consecutive sentences .
Suffice it to say that a jury instruction in a criminal case must be stated within the
framework of the authorizing statute . McGuire v. Commonwealth , Ky ., 885 S .W.2d 931,
936 (1994) . The proposed instruction not only is unauthorized by the plain language of
KRS 532.055(2), it is also contrary to the specimen instruction and verdict form recently
approved by a majority of this Court (including the author of today's majority opinion) in
Commonwealth v. Pelfrev , Ky., 998 S .W.2d 460, 462 (1999) .
Although not specifically articulated therein, the majority opinion also implies that
KRS 532.110(1) authorizes a sentencing judge to piecemeal the imposition of
concurrent or consecutive sentences (for otherwise what would be the point in
authorizing a jury to recommend such a procedure?) . Perhaps the phrase, "as the
court shall determine," in KRS 532 .110(1) could be construed to confer that authority -but it would be a stretch . It would suffice to say that the statute has never been so
construed and that the issue is not presented by the facts of this case.
Nevertheless, subject to the constitutional proscriptions against excessive fines
and cruel and unusual punishments, U .S . Const. amend . VIII, Ky. Const. § 17, it is
elementary that the sentence to be imposed for a criminal offense is purely a matter of
legislative prerogative . Brown v . Commonwealth , Ky ., 818 S .W.2d 600 (1991) (citing
Rummel v. Estelle, 445 U.S . 263, 275-76, 284, 100 S .Ct. 1133, 1140, 1144, 63 L.Ed .2d
382 (1980) and Workman v. Commonwealth , Ky., 429 S .W.2d 374, 377 (1968)) . See
also Hampton v . Commonwealth , Ky ., 666 S .W.2d 737, 741 (1984) ("[t]he sentence
must conform to the limitations of the statute . . ."). Any common law prerogative
previously afforded the judiciary with respect to sentencing is abrogated once the
legislature speaks to the issue . Bentley v. Commonwealth , Ky., 269 S .W.2d 253, 255
(1954) . We have repeatedly recognized that this legislative prerogative extends to
determinations of whether sentences should run concurrently or consecutively . Esc . ,
Moore v. Commonwealth , Ky., 990 S .W.2d 618, 620 (1999) (KRS 533 .060(3) precludes
ordering a sentence for an offense committed while awaiting trial to run concurrently
with the offense for which the defendant was awaiting trial) ; Gaither v . Commonwealth ,
Ky., 963 S.W.2d 621, 622 (1997) (KRS 532 .110(4) precludes ordering a sentence for a
conviction of escape to run concurrently with any other sentence); Devore v .
Commonwealth , Ky., 662 S.W.2d 829, 831 (1984) (KRS 533 .060(2) precludes ordering
a sentence for a conviction of an offense committed while on parole to run concurrently
with any other sentence) ; Hardy v. Commonwealth , Ky., 590 S .W.2d 879 (1979) (KRS
532 .110(1)(b) precludes ordering two or more definite sentences to run consecutively) .
If the legislature had intended that sentences should run concurrently or consecutively
"in whole or in part," it would have been a simple matter to have said so.
Finally, this whole issue is an exercise in immateriality, for authorizing the jury to
piecemeal its recommendation will have no practical effect on this or any other criminal
case. The maximum aggregate enhanced sentences for the offenses of which
Appellant was convicted is twenty years, KRS 532.110(1)(c), KRS 532 .080(6)(b), and
the minimum is ten years (ten and ten served concurrently) . Thus, imposition of
consecutive sentences can only occur under KRS 532.110(1), as written, if the jury
fixes the sentence for each conviction at ten years . But if the desired sentence is more
than ten but less than twenty years, that sentence can be imposed within the framework
of the existing statutory scheme by simply imposing a sentence of, e.g_, fifteen years for
each offense and ordering the sentences to be served concurrently . Nothing further is
accomplished by, e.g ., ordering five years of a ten year sentence imposed for one
offense to run concurrently and the remaining five years to run consecutively with the
ten year sentence imposed for the other offense . In other words, sentences for multiple
offenses can be imposed in such a way as to reach the desired aggregate sentence
without resort to judicial amendment of the statutory scheme . Perhaps, the recognition
of that fact is one reason why the legislature did not include the phrase, "in whole or in
part," in either KRS 532.055(2) or KRS 532 .1 10(l) .
Accordingly, I concur in the holdings of the majority opinion but dissent from its
erroneous and unnecessary dicta.
Graves and Wintersheimer, JJ ., join this opinion, concurring in part and
dissenting in part.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.