CLYDE TURNER v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 28, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002374-MR
CLYDE TURNER
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY WINCHESTER, JUDGE
ACTION NO. 96-CR-00053
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, JOHNSON, AND McANULTY, JUDGES.
JOHNSON, JUDGE: Clyde Turner has appealed from the final judgment
of the Whitley Circuit Court entered on September 10, 1998, which
pursuant to a plea agreement convicted him of various offenses,
and which denied his request for probation and sentenced him to
prison for thirteen years.
Since we conclude that the trial
court complied with the mandate of KRS1 533.010 to consider
Turner for probation, we affirm.
On the evening of June 22, 1996, Turner was extemely
impaired by the effects of alcohol when he committed the criminal
1
Kentucky Revised Statutes.
act of driving his automobile on the wrong side of Interstate 75,
without his headlights being on, and caused serious physical
injury to three people and endangered the lives of three other
persons.
Turner himself was seriously injured in the car wreck
and is now confined to a wheelchair; he has no memory of the
incident.
On July 8, 1996, Turner was indicted on three counts of
assault in the second degree2, three counts of wanton
endangerment in the first degree3, and driving a motor vehicle
while under the influence of alcohol, first offense.4
On July
16, 1998, Turner entered an Alford5 plea to the assault and
wanton endangerment charges.
The DUI charge was dismissed.
The
Commonwealth recommended a total sentence of thirteen years--ten
years on each assault charge to run concurrently with each other,
and three years on each of the wanton endangerment charges to run
concurrently with each other, but consecutively with the assault
sentences.
The Commonwealth took no position on the issue of
probation.
Prior to sentencing, the Department of Public Advocacy
developed an alternative sentencing plan on Turner’s behalf for
the trial court’s consideration.6
2
KRS 508.020.
3
KRS 508.060.
4
At Turner’s sentencing
KRS 189A.010.
5
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 152 (1970).
6
The plan called for the 13-year sentence to be probated,
(continued...)
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hearing, his attorney urged the trial court to accept the plan
and to place Turner, a forty-year-old father of four children
with no prior criminal history, on probation.
However, under the
circumstances, the trial court refused to grant probation.
After
giving Turner a chance to refute any information contained in the
presentence investigation report, and after discussing the
alternative sentencing plan, the trial court stated:
All I know is, is a fellow got drunk, went
down driving on the interstate on the wrong
side of the road and destroyed a family.7
And he got hurt too, grant you. And I can’t
weigh in a balance of what it is. But,
actually, we had a plea agreement and I
intend to follow it just exactly the way you
all agreed to unless [there is] something
else that I don’t know about. That’s all I
can do. And I know he has been hurt and I
know he has gone through a lot too, but I
just can’t help--and I can’t have that much
sympathy because it was useless to the other
people. . . . And now then, I am supposed to
say, well, since you got hurt we are going to
send you to all the state expenses for
rehabilitation, which he says he doesn’t need
and so forth. And, in the meantime--I know
you can’t pay back and revenge belongs to the
Lord and not me anyway. But under our laws
he entered into a plea bargain agreement, and
he agreed to be--to take this, what is, and
these--everybody seemed to agree to that.
. . .
6
(...continued)
that Turner be supervised for five years, that he obtain
outpatient alcohol counseling from the Comprehensive Care Center
at Corbin, that he obtain a GED, that he perform community
service, including working with the DARE program and speaking
publicly at local area high schools about his criminal behavior
and the consequences of drinking and driving, and that he refrain
from the use of alcohol.
7
This is a reference to the fact that one of the crime
victims, who was in her seventh month of pregnancy, lost her
unborn child as a result of her injuries.
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[The trial court imposed the 13-year
sentence.]
And the reason for the sentence, which is
stated in the statute is, is that, in my
opinion, to probate or go along with this
Alternative Sentencing Plan would unduly
depreciate the seriousness of the crime which
he committed. I don’t know of any more
serious crime that you can have. And it[’]s
for pure punishment in addition to whatever
punishment he’s already suffered because of
his own injury. So I will sentence you to
the Department of Corrections. You will be
remanded to the Whitley County Jail until
such time as they shall designate the
institution in this state in which you are to
serve your sentence.
In the written Judgment and Sentence on Plea of Guilty
entered on September 10, 1998, two days after the sentencing
hearing, the trial court included two additional reasons for
rejecting the alternative sentencing plan, that is the
“likelihood” that Turner would commit a felony during the period
of probation and that he needed “correctional treatment.”
It is
the addition of these two statutory factors that forms the basis
for this appeal.
KRS 533.010, the statute governing Turner’s sentencing,
provides in pertinent part:
(1) Any person who has been convicted of a
crime and who has not been sentenced to death
may be sentenced to probation, probation with
an alternative sentencing plan, or
conditional discharge as provided in this
chapter.
(2) Before imposition of a sentence of
imprisonment, the court shall consider
probation, probation with an alternative
sentencing plan, or conditional discharge.
Unless the defendant is a violent felon as
defined in KRS 439.3401 or a statute
prohibits probation, shock probation, or
conditional discharge, after due
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consideration of the nature and circumstances
of the crime and the history, character, and
condition of the defendant, probation or
conditional discharge shall be granted,
unless the court is of the opinion that
imprisonment is necessary for protection of
the public because:
(a) There is substantial risk that during a
period of probation or conditional discharge
the defendant will commit another crime;
(b) The defendant is in need of correctional
treatment that can be provided most
effectively by his commitment to a
correctional institution; or
(c) A disposition under this chapter will
unduly depreciate the seriousness of the
defendant’s crime.
(3) In the event the court determines that
probation is not appropriate after due
consideration of the nature and circumstances
of the crime, and the history, character, and
condition of the defendant, probation with an
alternative sentencing plan shall be granted
unless the court is of the opinion that
imprisonment is necessary for the protection
of the public because:
(a) There is a likelihood that during a
period of probation with an alternative
sentencing plan or conditional discharge the
defendant will commit a Class D or Class C
felony or a substantial risk that the
defendant will commit a Class B or Class A
felony;
(b) The defendant is in need of correctional
treatment that can be provided most
effectively by commitment to a correctional
institution; or
(c) A disposition under this chapter will
unduly depreciate the seriousness of the
defendant’s crime.
The gist of Turner’s appeal is that his sentencing
hearing was “tainted” by the inclusion of statutory factors
within the written judgment and sentence which were neither
raised nor addressed by the trial court at the sentencing
hearing.
Turner insists that he should have been “advised at the
-5-
sentencing hearing of [all] the specific statutory grounds” on
which the trial court intended to rely for its denial of
probation.
Having reviewed the entire sentencing hearing, we
agree with Turner’s claim that the trial judge gave no hint that
he considered Turner to pose a risk of recidivism, or that he
believed Turner needed to be incarcerated for “correctional
treatment.”
The only justification alluded to by the trial court
at the hearing concerned the seriousness of the crime and its
belief that anything less than a sentence of imprisonment would
unduly depreciate the seriousness of Turner’s crimes.
Further,
the final judgment does not contain any findings to support the
additional factors used to reject the alternative sentencing
plan.
We understand Turner’s arguments with respect to the
justifications that the trial court added to the final judgment
after the hearing.
well be unlikely
From Turner’s physical condition, it may very
that he would drive again, and thus it may be
unlikely that he would physically be able to again harm another
person while operating a motor vehicle under the influence of
alcohol or any other intoxicant.
Thus, since Turner has no other
criminal history, we can find no support in the record for the
trial court’s determination that Turner is likely to be a
recidivist.
Further, we do not know what information the trial
court used to conclude that Turner needed “correctional
treatment” at a “correctional institution,” nor does the
Commonwealth suggest what that “treatment” would be.
Without any
discussion of these factors at the hearing, and without any
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findings in support of their inclusion in the final judgment,
this Court is unable to determine what consideration the trial
court gave to these statutory factors.
Nevertheless, we agree with the Commonwealth that the
error is harmless.8
The decision to grant probation, or
probation with an alternative sentencing plan, is one in which
the trial court has “substantial discretion.”9
While the trial
court is statutorily required to “consider” probation, or
probation with an alternative sentencing plan, the record amply
demonstrates that the trial court complied with that provision of
KRS 533.010.
In its consideration of the appropriate sanction to
impose on Turner, the trial court reviewed the presentence
investigation report and the alternative sentencing plan, and it
listened to the arguments of Turner’s counsel and allowed Turner
to make a personal statement.
The trial court specifically
addressed the nature and circumstances of the crime, and
elaborated on the seriousness of the crime.
The Commonwealth correctly argues that KRS 533.010
allows a trial court to deny probation, or probation with an
alternative sentencing plan, if it finds that imprisonment is
8
See Kentucky Rules of Criminal Procedure 9.24; and
Abernathy v. Commonwealth, Ky., 439 S.W.2d 949, 952 (1969) (“if
upon consideration of the whole case this court does not believe
there is a substantial possibility that the result would have
been any different, the irregularity will be held
nonprejudicial”).
9
Turner v. Commonwealth, Ky., 914 S.W.2d 343, 348 (1996),
(citing the commentary to KRS 533.010). See also, Johnson v.
Commonwealth, Ky., 967 S.W.2d 12, 15-16 (1998).
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necessary for any one of the statutory factors.10
Significantly,
Turner does not argue that the trial court abused its discretion
in finding that probation would “unduly depreciate the
seriousness of [his] crime.”
Thus, it is readily apparent that
had the trial court addressed the two additional factors at the
sentencing hearing, the result would not have been any different,
and the re-sentencing that Turner has requested would be a
useless exercise.
Accordingly, the judgment of the Whitley Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Wettle
Louisville, KY
A.B. Chandler, III
Attorney General
Matthew D. Nelson
Asst. Attorney General
Frankfort, KY
10
Johnson, supra at 15.
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