COMMONWEALTH OF KENTUCKY V. GREGORY ROSS PHILPOTT
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COMMONWEALTH OF KENTUCKY
V.
PETITIONER
JEFFERSON CIRCUIT COURT
2000-CR-514
GREGORY ROSS PHILPOTT
RESPONDENT
OPINION OF THE COURT BY JUSTICE COOPER
CERTIFYING THE LAW
Gregory Ross Philpott was indicted by a Jefferson County grand jury on a charge
of burglary in the first degree, a Class B felony, KRS 511.020, for which the maximum
penalty is twenty years in prison and a $10,000.00 fine. KRS 532.060(2)(b); KRS
534.030(l). Following a trial by jury, Philpott was convicted of assault in the fourth
degree under extreme emotional disturbance, a Class B misdemeanor, KRS 508.030
and KRS 508.040, and sentenced to the maximum penalty for that offense, ninety days
in jail and a $250.00 fine. KRS 532.090; KRS 534.040(2)(b).
The factual premise for the indictment was that Philpott, with the intent to commit
a crime, knowingly entered or remained unlawfully in a residence and, while in the
residence, assaulted and physically injured Mary Malone who was not a participant in
the crime. KRS 511.020(l)(b). The trial judge instructed the jury on the principal
offense,
burglary in the first degree, and on three possible lesser included offenses: (1)
criminal trespass in the first degree; (2) assault in the fourth degree; and (3) assault in
the fourth degree under extreme emotional disturbance. The latter three offenses are
misdemeanors. KRS 511.060(2); KRS 508.030(2); KRS 508.040(2)(b). The guilt
phase instructions directed the jury as follows upon a finding of guilt of one of the four
possible offenses:
Instruction No. 1: If guilty of burglary in the first degree, “[y]ou shall say so by
your verdict and no more.”
Instruction Nos. 2 and 3: If guilty of criminal trespass in the first degree or
assault in the fourth degree, “[y]ou shall fix his punishment at confinement in the
County Jail for a period not to exceed twelve (12) months, at a fine not to exceed
$500.00, or at both confinement and fine, in your discretion.”
Instruction No. 4: If guilty of assault in the fourth degree under extreme
emotional disturbance, “[y]ou shall fix his punishment at confinement in the County Jail
for a period not to exceed ninety (90) days, at a fine not to exceed $250.00, or at both
confinement and fine, in your discretion.”
Thus, the instructions directed the jury not to set a penalty if Philpott was found
guilty of the principal felony offense but to set a penalty if he was found guilty of one of
the lesser included misdemeanor offenses. As noted above, the jury found Philpott
guilty of assault in the fourth degree under extreme emotional disturbance and
sentenced him to confinement for ninety days and a $250.00 fine. Since the jury
returned its penalty verdict concurrently with its guilty verdict, there was no penalty
phase of the trial. We granted the Commonwealth’s motion to certify the law with
respect to the following issue:
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WHETHER THE “TRUTH-IN-SENTENCING” STATUTE, KRS 532.055(l)
MANDATES THAT A JURY CANNOT BE ADVISED OF MISDEMEANOR
SENTENCING INFORMATION DURING THE GUILT PHASE OF A
FELONY TRIAL?
Ky. Const. § 115; CR 76.37.
KRS 532.055(l) provides:
In all felony cases, the jury in its initial verdict will make a determination of
not guilty, guilty, guilty but mentally ill, or not guilty by virtue of insanity,
and no more.
Prior to January I, 1975, there were no bifurcated criminal trials in Kentucky and
all verdicts were rendered pursuant to RCr 9.84(l):
When the jury returns a verdict of guilty it shall fix the degree of the
offense and the penalty . . . .
See e& lnaram v. Commonwealth, Ky., 427 S.W.2d 815, 818 (1968), and Wilson v.
Commonwealth, Ky., 403 S.W.2d 705, 708-09, (1966), rejecting arguments that
introduction during the trial of the primary offense of evidence of prior convictions
supporting an enhanced penalty under the Habitual Criminal Act, KRS 431.190
(repealed 1974 Ky. Acts, ch. 406, § 336, eff. January I, 1975), denied a defendant
his/her Fifth Amendment right to Due Process of Law and Sixth Amendment right to trial
by an impartial jury. The original version of the Kentucky Penal Code retained this
practice for trials of accused persistent felony offenders. 1972 Ky. Acts, ch. 385, 5 267.
However, the effective date of the 1972 version of the Code was July 1, 1974, id., §
307, and the 1974 General Assembly amended that provision so that what is now KRS
532.080(l) provides for a bifurcated procedure at which sentencing and evidence of
prior convictions are reserved to a second, penalty phase of the trial. 1974 Ky. Acts,
ch. 406, 5 280, eff. January I, 1975. Likewise, when the General Assembly reinstated
the death penalty in Kentucky, it provided for a bifurcated trial in which sentencing
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information was reserved to a second, penalty phase of the trial. KRS 532.025(l)
(1976 Ky. Acts (ex. sess.), ch. 15, § 2). Despite the fact that Section 116 of the
Kentucky Constitution vests the Supreme Court with all power over rules of practice and
procedure and that Section 28 forbids the exercise by one branch of government of
powers belonging to either of the other branches, neither KRS 532.080(l) nor KRS
532.025(l) was subjected to a Constitutional challenge on that basis.
The so-called “truth-in-sentencing” statute, KRS 532.055, was literally drafted
overnight and enacted the next day in response to a public outcry over the failure of a
petit jury to sentence George Wade to death for the robberies and murders of two
Jefferson County teenagers.’ 1986 Ky. Acts, ch. 358, § 2. Like KRS 532.080(l) and
KRS 532.025(l), KRS 532.055(2) provides for a bifurcated trial in which the jury
determines the appropriate penalty within the ranges specified by law after being
furnished with previously inadmissible evidence regarding the number and nature of the
defendant’s prior criminal convictions and parole eligibility information. In
Commonwealth v. Reneer, Ky., 734 S.W.2d 794 (1987), the statute was deemed to be
legislation concerning practice and procedure and, thus, a violation of Section 28. Id. at
796. However, we decided to accept the provisions of the statute as a matter of comity,
subject to the Court’s right under Section 116 to preempt its provisions by promulgation
of different rules of procedure when and if necessary. Id. at 798.
Philpott argues that KRS 532.055(l) has no application to the trial of a
misdemeanor, and, thus, it was proper to apply RCr 9.84(l) to the instructions on the
lesser included misdemeanor offenses. We disagree. There are three circumstances
’ For factual details, see Taylor v. Commonwealth, Ky., 821 S.W.2d 72 (1990),
cert. denied, 502 U.S. 1100 (1992).
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in which a defendant can be convicted of a misdemeanor: (1) in district court when the
defendant is charged only with one or more misdemeanor offenses, KRS 24A.l lO(2);
(2) in circuit court when a misdemeanor charge is joined in an indictment with a felony,
id., RCr 6.18, Keller v. Commonwealth, Ky., 594 S.W.2d 589 (1980); and (3) in circuit
court when the defendant is indicted for a felony offense but convicted, as here, of a
lesser included misdemeanor offense. Cf. Commonwealth v. Adkins, Ky., 29 S.W.3d
793 (2000). KRS 532.055(l) applies to “all felony cases” in circuit court. Instructing the
jury on a lesser included misdemeanor offense does not transform a felony case into a
misdemeanor case. That does not occur until and unless a verdict is returned
convicting the defendant of the misdemeanor offense and thereby acquitting him/her of
the felony offense. Erao, the trial is still a felony case at the time the guilt phase
instructions are read to the jury.
KRS 532.055 does not purport to limit the type of evidence admissible during the
guilt phase of a criminal trial. Nevertheless, such has been the subject of most of the
post-Reneer litigation with respect to that statute. Clay v. Commonwealth, Ky., 818
S.W.2d 264 (1991), cert. denied, 503 U.S. 923 (1992), held that because KRS 532.055
now permits bifurcated trials of felony cases, evidence of prior convictions introduced
for the purpose of enhancing an underlying felony offense to an offense of a higher
degree is no longer admissible during the guilt phase of the trial but must be reserved
for the penalty phase. That principle has subsequently been extended to any case in
which the prosecution seeks to introduce a prior conviction for the purpose of imposing
an enhanced sentence, even if the enhancement would result only in a more severe
misdemeanor sentence, thus requiring bifurcation of some misdemeanor trials. Dedic
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v. Commonwealth, Ky., 920 S.W.2d 878 (1996); O’Brvan v. Commonwealth, Ky., 920
S.W.2d 529 (1996); Commonwealth v. Ramsey, Ky., 920 S.W.2d
526 (1996).
In Carter v. Commonwealth, Ky., 782 S.W.2d 597 (1990), cert. denied, 497 U.S.
1029 (1990), the jury initially returned inconsistent verdicts finding the defendant guilty
of both the primary offense of trafficking in a controlled substance and the lesser
included offense of possession of a controlled substance. The trial judge explained to
the jury the difference between the two offenses and “presumably” informed them that
the offense of trafficking carried a more severe penalty than the offense of possession.
After further deliberations, the jury returned a verdict convicting the defendant of the
more serious trafficking offense.
Though finding the error harmless, the Court in Carter
agreed with the defendant’s assertion “that telling the jury sentencing information during
the guilt/innocence phase of the trial violated the statutory process of a bifurcated trial
as set forth in the new truth-in-sentencing statute, KRS 532.055, and thereby denied
him due process of law.” Id. at 601. The issue then became whether Carter precluded
the introduction of m sentencing information during the guilt phase of a trial and, if so,
how the parties could conduct a meaningful voir dire so as to ascertain whether
individual prospective jurors could consider the full range of penalties. Shields v.
Commonwealth, Ky., 812 S.W.2d 152 (1991), cert. denied, 502 U.S. 1065 (1992). We
recently surveyed the evolution of our case law on this subject in both Norton v.
Commonwealth, Ky., 37 S.W.3d 750 (2001), and Lawson v. Commonwealth, Ky., 53
S.W.3d 534 (2001). Without repeating the issues and holdings of all of the relevant
cases, suffice it to say that the principle stated in Carter has been modified to permit
meaningful voir dire, Lawson, and the introduction of relevant evidence, Norton, during
the guilt phase of a criminal trial, but otherwise remains intact.
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Lawson holds that meaningful voir dire requires that the jury be informed of the
penalty range of the indicted offense(s) but not of enhanced or lesser included
offenses. Thus, the penalty range information furnished to the jury by the instructions in
this case would not be cumulative to information furnished during voir dire. Nor does
Philpott suggest how evidence of the penalty ranges of lesser included misdemeanors,
but not of the primary felony offense, would be relevant to his guilt or innocence. In
fact, such would more likely confuse the jury into believing that a penalty would be
imposed only upon conviction of a misdemeanor offense. Regardless, in addition to
authorizing the jury to render a verdict contrary to the mandate of KRS 532.055(l), the
instructions in this case furnished sentencing information to the jury during the guilt
phase of the trial contrary to the principle stated in Carter, supra.
We hold now that in the trial of a “felony case,” i.e., any trial in which a jury could
return a verdict of guilty of a felony offense, the jury shall not be instructed on the
penalty ranges of any offense, whether the primary or a lesser included offense. If,
upon the conclusion of such a trial, the jury returns a verdict of guilty of a lesser
included misdemeanor offense, no additional evidence shall be admitted, the jury shall
immediately be instructed on the penalty range for that offense, and the attorneys shall
be allowed additional argument only on the issue of punishment, following which the
jury shall retire to deliberate its verdict on that issue. If, upon the conclusion of the trial
of a multicount indictment, the jury returns verdicts finding the defendant guilty of both
felony and misdemeanor offenses, and if either of the parties intends to offer evidence
pursuant to KRS 532.055(2), the procedure described in the preceding sentence shall
first be followed with respect to the misdemeanor convictions, after which the procedure
described in KRS 532.055(2)
and (3) shall be followed with respect to the felony
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convictions. Newton v. Commonwealth, Ky. App., 760 S.W.2d 100 (1988); cf. Francis
v. Commonwealth, Ky., 752 S.W.2d 309 (1988); Cooper, 1 Kentuckv instructions to
Juries (Criminal) § 12.01A - 12.03 (Comment) (4th ed. Anderson 1993).
The law is so certified.
Graves, Johnstone, Stumbo and Wintersheimer, JJ., concur. Keller, J., concurs
by separate opinion, with Lambert, C.J., joining that concurring opinion.
COUNSEL FOR PETITIONER:
Shawn C. Goodpaster
Special Assistant Attorney General
514 West Liberty Street
Louisville, KY 40202
COUNSEL FOR RESPONDENT:
Daniel T. Goyette
J. David Niehaus
Stephen Keller
200 Civic Plaza
719 West Jefferson Street
Louisville, KY 40202
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RENDERED: MAY 16,2002
TO BE PUBLISHED
2000-SC-0833-CL
PETITIONER
COMMONWEALTH OF KENTUCKY
V.
CERTIFICATION OF THE LAW FROM
JEFFERSON CIRCUIT COURT
2000-CR-514
RESPONDENT
GREGORY ROSS PHILPOTT
CONCURRING OPINION BY JUSTICE KELLER
I wholeheartedly agree with the majority opinion to the extent that it addresses
the issue certified and concludes that, in felony cases, the trial court’s guilt/innocence
phase jury instructions shall not inform the jury “on the penalty ranges of any offense,
whether the primary or a lesser included offense.“’
I write separately, however,
because I disagree with the procedures outlined by the majority for circuit courts to
follow in cases where a jury returns a verdict finding a defendant guilty of one (1) or
more misdemeanor offenses. While the majority perpetuates a system that requires
jurors to determine penalties for misdemeanor offenses “in a vacuum,“* I believe the
time has come for the Court to follow the lead of the forward-thinking trial judge in
‘Majority Opinion, - S.W.3d
, (2003 (Slip Op. at 7).
Commonwealth v. Reneer, Ky., 734 S.W.2d 794, 797 (1987).
3
Newton v. Commonwealth and permit juries in all criminal cases to consider relevant
sentencing information before determining an appropriate penalty.
To impose an appropriate sentence for any criminal offense, whether a felony,
misdemeanor, or violation, judges and jurors need to consider not only information
concerning the character of the offense, but also relevant information about the
defendant. While the Kentucky Penal Code requires the preparation of a Presentence
Investigation Report (PSI) only in non-capital felony cases4 I am confident that a
majority of Kentucky’s circuit judges regularly order a PSI before imposing a
misdemeanor sentence as well - and for a good reason. Before imposing a sentence
of imprisonment, regardless of whether it is for a felony or misdemeanor conviction, trial
judges must first “consider probation, probation with an alternative sentencing plan, or
conditional discharge’15 by giving “due consideration [to] the nature and circumstances
of the crime and the history, character, and condifion
offhe defendant.“6
While the
sentencing judge may possess information regarding the circumstances of the offense
- especially in those cases where the conviction resulted from a trial - the PSI report
provides circuit judges with information that permits them to make an informed
‘Ky.App., 760 S.W.2d 100 (1988). Careful readers will observe that the trial
judge in Newton and the author of this dissenting opinion are one and the same.
“KRS 532.050(l) (“No court shall impose sentence for conviction of a felony,
other than a capital offense, without first ordering a presentence investigation after
conviction and giving due consideration to a written report of the investigation.“); Bell v.
Commonwealth, Ky.App., 566 S.W.2d 785, 787 (1978) (“We do not conclude that the
trial court has an obligation to provide pre-sentencing reports in misdemeanor cases as
it is required to provide in felony cases . . . .“).
‘KRS 533.010(2); Bell v. Commonwealth, supra note 4 at 787..
‘ld. (emphasis added).
sentencing decision by considering “the history, character, and condition of the
defendant.”
Similarly, as long as we continue to charge jurors with the task of determining
appropriate sentences in criminal cases,’ I believe we should provide them with the
information necessary to fulfill that function by allowing them to consider relevant
sentencing information about the history, character, and condition of the defendant.
When addressing the constitutionality of the Truth-in-Sentencing Act in Commonwealth
v. Reneer,’ this Court recognized that jurors require information concerning a
defendant’s past criminal record and other matters in order to make an informed
sentencing decision:
The fact that the jury must deliberate once on the issue of
guilt or innocence, and if guilty, must hear further evidence
and deliberate again upon the assessment of penalty, will
doubtless consume additional time in the trial process.
Offset against this is the fact that the jury, in the sentencing
phase, will be able to hear much evidence relevant to
sentencing which it is not now permitted to hear.
One of the chief deficiencies in our present procedure is
that, after reaching a verdict of guilt, the jury is required to
sentence in a vacuum without any knowledge of the
defendant’s past criminal record or other matters that might
be pertinent to consider in the assessment of an appropriate
penalty. On balance, the inconvenience of a bifurcated trial
‘In my opinion, the question of court versus jury sentencing may again be ripe for
discussion. See Commonwealth v. Reneer, supra note 2 at 798 (“It has been argued
that judge sentencing lends itself to more uniform sentencing, and this court has, in the
past, given consideration to adopting such a rule. We have not done so as yet. . . .I’
(emphasis added)). The opinion I express in this dissent is that, if the Court continues
to employ jury sentencing in criminal cases, it should strive to make juries’
determinations as informed as possible.
Supra note 2.
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is a small or-ice to oav for a better informed sentencinq
process9
The soundness of the Reneer Court’s reasoning as to the benefit of Truth-inSentencing information would appear to apply with equal force to sentencing in any
criminal case. I can neither find nor imagine any persuasive justification for this Court
to sanction less informed sentencing decisions in non-felony criminal trials than it does
in felony criminal trials.
In fact, Reneer’s reasoning is even more persuasive now than
it was when it was rendered because the Court’s concern that bifurcated proceedings
may become burdensome for trial courts, while perhaps well-founded at the time,
simply did not materialize in actual practice.”
‘Commonwealth v. Reneer, supra note 2 at 797 (emphasis added).
“a Dedic v. Commonwealth, Ky., 920 S.W.2d 878, 879 (1996) (“As has been
shown in felony proceedings, the bifurcation will not impose a heavy administrative
burden on the courts or the prosecution.“). Additionally, from my own experience of
presiding in countless trials for a decade prior to Truth-in-Sentencing and almost twelve
(12) years after the enactment of KRS 532.055, it is my opinion that bifurcated
proceedings not only did not lengthen the proceedings, but actually expedited them and
saved time. First, my experience - as well as anecdotal reports - suggests to me
that, prior to Truth-in-Sentencing, jury deliberations were often extended because jurors
were asked to fix an appropriate sentence but provided no information with which to do
so. Juries would often find that they could reach a unanimous verdict of guilty without
much trouble, but had to deliberate for a longer period of time as to the penalty. In
many ways, this is unsurprising because it mirrors situations each of us encounters in
everyday life; it is simply difficult to make a decision without sufficient information.
Given the gravity of the decision jurors are asked to make - essentially, a
determination of how long an individual should be deprived of his or her freedom juror’s sentencing decisions prior to Truth-in-Sentencing were difficult. Second, I found
that, after Truth-in-Sentencing, in a number of cases if not a majority of them,
defendants found guilty during the first phase of the trial would waive the separate
sentencing hearing in exchange for a sentencing recommendation by the prosecuting
attorney. Third, even in those cases where a Truth-in-Sentencing phase was
conducted, the hearing consumed only a small amount of time and was certainly not
“burdensome” upon either the trial court or the attorneys. Thus, at least from my
perspective, the Reneer Court’s fears did not materialize.
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Since the adoption of the Judicial Article and the concomitant vesting of
exclusive jurisdiction in the Supreme Court to prescribe “rules of practice and procedure
for the Court of Justice,“” this Court has never rendered an opinion holding that
bifurcation is inappropriate in non-felony criminal trials. While the Court of Appeals did
so in Newton, the subject remains a question of first impression for this Court.‘* In
Newton, the Court of Appeals expressed its opinion that Truth-in-Sentencing type
evidence was irrelevant to a jury’s determination of an appropriate misdemeanor
sentence:
Even assuming that the rules of procedure would not
absolutely prohibit a court sua sponte from adopting a
bifurcated procedure in any criminal trial, once the defendant
has been found guilty of only a misdemeanor, evidence of
his prior criminal record or character would not then be
admissible in a case such as we have here for the simple
reason that the evidence would not be relevant. It has long
been the policy in this jurisdiction that the punishment in a
misdemeanor case is “graded by the enormity of the
offense.” The punishment inflicted “should be
commensurate with the wrong done . . . to the public.” Simply
put, the general policy has been, and is, that in
misdemeanor cases the punishment a jury sets is not to be
based upon a defendant’s character but the character of his
offense; the punishment must fit the offense rather than the
particular offender. There are sound reasons for changing
this policy in some instances and, indeed, the General
“KY. CONST. § 116; O’Bryan v. Hedgespeth, Ky,, 892 S.W.2d 571, 576 (1995)
(“Kentucky Constitution Section 116 vests exclusive jurisdiction in the Supreme Court to
prescribe ‘rules of practice and procedure for the Court of Justice.’ Responsibility for
deciding when evidence is relevant to an issue of fact which must be judicially
determined[] . . . falls squarely within the parameters of “practice and procedure”
assigned to the judicial branch by the separation of powers doctrine and Section 116.“).
“This Court considered, and denied, discretionary review in Newton. However,
in doing so, we did not put our imprimatur on Newton’s holding. See O’Brvan v.
Hedaesoeth, Ky., 892 S.W.2d 571, 575 (1995) (“Denying discretionary review neither
adopts the Court of Appeals’ decision nor rejects it. Simply stated, it leaves the issue
undecided at this level, albeit precedent for trial courts until such time as we should
decide differently.“).
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Assembly has done so with respect to recidivists and certain
misdemeanor offenses. There are equally sound practical
reasons for maintaining the policy with respect to most
misdemeanor offenses. Considering the relatively less
grave subject matter of misdemeanor offenses and the
necessity of lengthening the trials of these offenses to permit
introduction of evidence to enhance and to mitigate
sentence, it would seem that another burden would be
added to an already burdened system without satisfying any
demonstrated punitive or correctional need. This burden,
however, would be infinitesimal when compared to that
which would be imposed upon the district courts by the
inevitable collateral attacks upon prior misdemeanor
convictions which would be spawned were the existing policy
changed.13
In light of Kentucky’s sixteen (16) years of experience with Truth-in-Sentencing
for felony offenses, I question the soundness of the reasons advanced by the Newton
Court in support of its holding. First, while the general policy in the past was to reject
such evidence, in both felony and misdemeanor cases, Truth-in-Sentencing for felony
cases has shown the fallacy of this policy. I find it axiomatic that better-informed juries
render more appropriate - and just - sentences. Second, any policy against
bifurcation of criminal trials has been eroded since the time Newton was decided. Until
the enactment of Truth-in-Sentencing, the only bifurcated trials in circuit court14 were in
capital casesI and felony cases where the defendant was eligible for sentencing as a
persistent felony offender.16
Now, in addition to capital trials, PFO proceedings, and
“Newton v. Commonwealth, supra note 3 at 102 (citations omitted).
‘“But see former KRS 208.060(2) (repealed 1986 Ky. Acts ch. 423, sec. 198, eff.
7-l-87) (providing that district court juvenile proceedings shall consist of two (2) distinct
hearings, an adjudication and a disposition). KRS 610.080 contains analogous
provisions.
15a KRS 532.025.
16&g KRS 532.080.
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Truth-in-Sentencing hearings in felony trials, this Court has mandated bifurcated
proceedings in cases where a defendant’s prior misdemeanor convictions may: (1)
enhance the offense to a felony;17 or (2) permit a more severe misdemeanor
sentence.”
Accordingly, this Court has recognized that, in certain misdemeanor
cases, sentencing information concerning prior convictions should be admitted at a
separate penalty phase. And, as such, we have determined that misdemeanor
punishments should not be determined solely by the character of the offense, and we
have permitted juries to consider information relating to a defendant’s prior criminal
record under circumstances specified by this Court. Third, the notion that a
misdemeanor is “relatively less grave” than a felony overlooks the fact that, because
persons serving misdemeanor sentences do not earn so-called good time credit” and
are ineligible for parole, ” a defendant incarcerated under a lengthy misdemeanor
sentence may actually serve an equivalent (or even longer) sentence than many Class
D felons.
In addition, misdemeanor sentences are typically served in regional or
county jails without the freedom of movement, rehabilitative programs, and other
opportunities available in state penal institutions. Fourth, as discussed in more depth
above, experience with Truth-in-Sentencing has allayed previous concerns that
bifurcated sentencing proceedings would burden trial courts and delay proceedings.
“Commonwealth v. Ramsev, KY.., 920 S.W.2d 526 (1996).
“Dedic v. Commonwealth, supra note 10 at 879 (“In order to fulfill the legislative
mandate of enhanced penalties for repeat DUI offenders and in accordance with our
rule-making authority, this Court orders the District Courts to bifurcate misdemeanor
DUI trials (footnotes omitted and emphasis added)).
19KRS 197.045.
“KRS 349.340(l); 501 KAR I:030 § 3(a).
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Similarly, our experience with Truth-in-Sentencing in felony prosecutions disproves the
Newton Court’s hypothesis that bifurcation would spawn collateral attacks by persons
convicted prior to bifurcated proceedings. Simply put, no rash of collateral attacks
followed the enactment of Truth-in-Sentencing, and a policy change in misdemeanor
cases would be even less likely to breed such challenges.
In summary, while I applaud the majority’s decision mandating bifurcated trials of
misdemeanor charges in circuit court, I would go one step forward and require
sentencing bifurcation in all criminal trials to allow juries to consider relevant information
about the character of the defendant before determining an appropriate sentence. The
citizens of Kentucky have empowered and entrusted this Court with the authority “to
prescribe rules . . of practice and procedure for the Court of Justice.”
Given the fact
that this Court has already described bifurcated sentencing as “a better informed
sentencing process,“” I can see no reason to limit that procedure to felony trials.
Accordingly, I believe the time has come for this Court to further improve Kentucky’s
criminal justice system by extending bifurcated sentencing to all criminal trials.
Lambert, C.J., joins this concurring opinion.
“Commonwealth v. Reneer, supra note 2 at 797.
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