WESLEY STEVENSON RAY v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 6, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-000921-MR
WESLEY STEVENSON RAY
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE HON. LEWIS G. PAISLEY, JUDGE
ACTION NO. 95-CR-812
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; GARDNER AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Wesley Stevenson Ray (Ray) appeals from a
judgment of the Fayette Circuit Court entered on April 8, 1997,
that sentenced him to prison for ten years.
Finding no error, we
affirm.
Ray was indicted on September 19, 1995, for trafficking
in a controlled substance (cocaine) in the first degree,
subsequent offender, in violation of Kentucky Revised Statutes
(KRS) 218A.1412 and being a persistent felony offender in the
first degree (PFO I) in violation of KRS 532.080.
On November
25, 1995, Ray was tried by a jury and found guilty of
trafficking in a controlled substance in the first degree.
Before the penalty phase of the trial began, Ray accepted the
sentence offered by the Commonwealth and pled guilty to being a
persistent felony offender in the first degree.
Ray was
sentenced to prison for a period of twenty years through the
following sequence of events.
The trial court first sentenced
Ray to prison for five years on the trafficking conviction.
This
five-year sentence was enhanced by the trial court to a ten-year
prison sentence by virtue of Ray being a subsequent offender.
This ten-year sentence was further enhanced by the trial court to
a twenty-year prison sentence on Ray’s guilty plea to being a
persistent felony offender in the first degree.
Ray appealed his twenty-year sentence directly to the
Supreme Court of Kentucky as a matter of right.
Ray had been
convicted in 1993 of three felonies: two convictions were for
trafficking in a controlled substance in the first degree and one
conviction was for flagrant nonsupport.
Ray argued that the
twenty-year sentence imposed by the trial court had been
impermissibly enhanced by the 1993 convictions.
The Supreme Court, in a not-to-be-published unanimous
memorandum opinion rendered on January 30, 1997, in case no. 95SC-1043, affirmed Ray’s conviction for trafficking in a
controlled substance in the first degree, but reversed the
sentence and remanded the matter for resentencing.
In remanding
the case, the Supreme Court stated, in pertinent part, as
follows:
By virtue of his guilty plea, Ray
admitted the factual allegations of the
indictment. He also does not deny that he
committed the prior offenses. The issue,
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instead, is how the three 1993 offenses can
be used in sentencing and whether Ray can be
sentenced as both a subsequent offender and a
PFO. . . . [F]or PFO purposes, all three of
Ray’s 1993 convictions merged into one. This
Court has held that one conviction cannot be
used to doubly enhance both as a subsequent
offender and PFO. See Commonwealth v.
Grimes, Ky., 698 S.W.2d 836, 837 (1985); Eary
v. Commonwealth, Ky., 659 S.W.2d 198, 199-200
(1983); Jackson v. Commonwealth, Ky., 650
S.W.2d 250, 251 (1983). The question then is
whether the Commonwealth can split the
convictions, merged for PFO purposes, and use
two to enhance as a subsequent offender and
one to enhance as a PFO (emphasis original).
The Court then considered the effect of its ruling in a
similar case, Howard v. Commonwealth, Ky., 777 S.W.2d 888 (1989),
cert. denied, Howard v. Kentucky, 494 U.S. 1068, 110 S.Ct. 1787,
108 L.Ed.2d 789 (1990).
The Court pointed out that in Howard the
appellant pled guilty to a misdemeanor and two felonies.
While
the two felony convictions merged for purposes of the PFO
statute1, the misdemeanor conviction did not merge.
The
misdemeanor drug conviction “stood alone, and was independently
used to obtain the subsequent offender conviction”.
Returning to
Ray’s appeal, the Supreme Court stated as follows:
In Ray’s case, by contrast, all three
1993 felony convictions merged and must be
treated as one for PFO purposes. KRS
532.080(4). Using one of the 1993
convictions to enhance Ray’s sentence as a
subsequent offender, and then either or both
of the other 1993 convictions to enhance for
PFO I, is using that one conviction to doubly
1
KRS 532.080(4) provides as follows: “For the purpose of
determining whether a person has two(2) or more previous felony
convictions, two (2) or more convictions of crime for which that
person served concurrent or uninterrupted consecutive terms of
imprisonment shall be deemed to be only one (1) conviction,
unless one (1) of the convictions was for an offense committed
while that person was imprisoned.”
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enhance his sentence: for PFO purposes all
the 1993 convictions are merged, and whatever
component is used to prove subsequent
offender status is necessarily part of the
merged 1993 convictions used for PFO purposes
(emphasis original). Thus, the 1993
convictions are as one for PFO purposes and
none of the components can be used also to
enhance Ray’s sentence via subsequent
offender status.
The Commonwealth claims that error, if
any, was harmless “because it is unclear
which felony convictions were used to enhance
the appellant’s sentence as a subsequent
offender and which were used to enhance his
sentence for PFO-I.” However, a brief review
of the record makes clear that the 1993
convictions had to be the bases for both
enhancements. The only prior drug offenses
Ray committed were in 1993; thus, one or both
of the 1993 trafficking convictions must have
been the convictions used to enhance Ray’s
sentence as a subsequent offender. Regarding
PFO status, it is true that under KRS 532.080
(3) PFO I requires proof of only two prior
felony convictions, and Ray had two prior
felony convictions (1983 and 1977) apart from
the 1993 convictions. But, KRS
532.080(3)(c)(1) states that, to be convicted
of PFO I status, the offender must have
completed service of the sentence imposed on
any previous felonies within five years prior
to the date of commission of the current
felony. The 1993 convictions were the only
prior felonies on which Ray completed service
within five years of committing the instant
felony.
Because the 1993 convictions could have
been used to enhance Ray’s sentence as either
a subsequent offender or PFO I, but not as
both, the authorized sentencing range would
be not less than ten years nor more than
twenty (emphasis added). Thus, the twentyyear sentence Ray received was within the
authorized range. However, in sentencing
him, the trial court erroneously believed
Ray’s trafficking conviction could be doubly
enhanced by splitting up the 1993
convictions, making twenty years the minimum
possible sentence. Thus, we remand this case
for resentencing.
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At the resentencing hearing, the trial court stated
that if it had not erred at the original sentencing hearing, the
Commonwealth then would have been allowed to choose which
enhancement method to use.
Upon this rationale, the trial court
accepted the Commonwealth’s election to proceed on the PFO I
enhancement.
On April 8, 1997, the trial court in accordance
with the Commonwealth’s recommendation sentenced Ray to prison
for five years on the trafficking conviction enhanced to ten
years based upon the persistent felony conviction.
This appeal
followed.
Ray makes the following three arguments on appeal: (1)
“it was fundamentally unfair for the court to treat the
proceeding as sentencing de novo for the prosecution, but not the
appellant”; (2) “the court had no power to set aside a final,
valid underlying judgment which included an enhanced sentence”;
and (3) “appellant was entitled to the rule of lenity at
resentencing”.
Ray’s main argument is that his sentence should
have been enhanced pursuant to his status as a subsequent
offender and not pursuant to his status as a persistent felony
offender.
The distinction is important because a defendant who
receives a ten-year prison sentence, under the subsequent
offender statute is eligible for parole after serving two years;
while the same defendant under the PFO I statute is not eligible
for parole until he has served all ten years.
In the original appeal, the Supreme Court’s opinion
stated that “the 1993 convictions could have been used to enhance
Ray’s sentence as either a subsequent offender or PFO I, but not
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as both. . . .”
We conclude from this statement that Ray could
have been properly sentenced on remand through either method of
enhancement.
Based upon the Supreme Court’s express language,
we conclude that the trial court did not err when it accepted the
Commonwealth’s election to proceed under the PFO I statute rather
than the subsequent offender statute.
Ray contends that by allowing the Commonwealth to make
an election as to the type of enhancement to apply to his
underlying conviction, “the trial court treated the remand
proceeding as a new sentencing proceeding as far as the
Commonwealth was concerned.”
Ray claims that at resentencing he
had “the right to request a jury trial.”
This issue is not
properly preserved for our review because Ray did not seek a jury
trial at the resentencing.
The Supreme Court’s decision left the
underlying conviction in place and remanded the case for
resentencing.
If Ray had requested a jury trial as to the
resentencing, the Commonwealth would have still been able to
elect to proceed with the PFO enhancement.
If Ray had been
convicted of PFO I, (he has never challenged the evidence in
support of this charge), the jury would have then recommended an
enhanced sentence of between 10 and 20 years.
Since the
Commonwealth agreed to the minimum PFO I sentence of 10 years,
there was no benefit for Ray to have a jury trial.
Ray’s second argument is that the trial court
impermissibly altered the judgment of conviction because “[a]t
the resentencing hearing, the trial court stated that the
underlying conviction was for trafficking, a subsequent offense”.
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Ray alleges that the trial court altered an affirmed judgment of
conviction when it allowed enhancement pursuant to the PFO I
statute rather than the subsequent offender statute.
Ray’s
contention that the original conviction was for “trafficking, a
subsequent offense” is simply inaccurate.
Since the trial did
not have a guilt phase, the jury did not even hear any proof of
prior offenses.
The jury verdict read as follows: “We[,] the
jury[,] find the Defendant GUILTY of First-Degree Trafficking in
a Controlled Substance under Instruction No. 2”.
Ray’s argument
that the jury convicted him of being a subsequent offender is
totally without merit.
Thus, the trial court did not alter the
judgment of conviction.
Ray’s final argument is that the “rule of lenity”
should apply.
He states: “Given the facts and the nonspecific
nature of the order on remand, the trial court should have
accorded appellant benefit of the less harsh result on
resentencing.”
This argument is likewise misplaced.
Apparently,
but without citation, Ray is referring to the “rule of lenity” as
discussed in Woods v. Commonwealth, Ky., 793 S.W.2d 809, 814
(1990); Boulder v. Commonwealth, Ky., 610 S.W.2d 615, 618
(1980)(overruled on other grounds); and Commonwealth v. Colonial
Stores, Inc., Ky., 350 S.W.2d 465, 467 (1961).
The rule of
lenity provides that “[p]enal statutes are not to be extended by
construction, but must be limited to cases clearly within the
language used (citation omitted).
‘Moreover, doubts in the
construction of a penal statute will be resolved in favor of
lenity and against a construction that would produce extremely
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harsh or incongruous results.’” Woods, supra, at 814.
If the
“rule of lenity” had any applicability in this case, it was when
the case was before the Supreme Court.
Obviously, the Supreme
Court saw no place for the rule of lenity because it expressly
stated that either method of enhancement, but not both methods,
was appropriate.
discretion.
The real issue is one of prosecutorial
Prosecutors regularly exercise such discretion in
deciding which offense to prosecute and which enhancements to
seek.
The Supreme Court’s decision, which is the law of the
case, gave the prosecutor that discretion.
For the foregoing reasons, we affirm the judgment of
the Fayette Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Sally Wasielewski
Lexington, Kentucky
Hon. A.B. Chandler III
Attorney General
Hon. Perry T. Ryan
Asst. Attorney General
Frankfort, Kentucky
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