KARIN BRANDENBURG v. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 11, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000121-DG
KARIN BRANDENBURG
APPELLANT
ON MOTION FOR DISCRETIONARY REVIEW
FROM HARDIN CIRCUIT COURT
HONORABLE T. STEVEN BLAND, JUDGE
ACTION NO. 98-XX-00008
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS, AND McANULTY, JUDGES, JUDGES.
BARBER, JUDGE:
On October 1, 1997, the Appellant, Karin
Brandenburg (“Brandenburg”) was charged with 56 counts of seconddegree cruelty to animals (KRS 525.130); 66 counts of failure to
license dogs in her possession or control (KRS 258.135); 66
counts of failure to vaccinate dogs against rabies (KRS 258.015);
and 264 counts of failure to obtain a business license (Radcliff
City Ordinance, Chapter 10, §§. 35 and 55).
The cases were tried
in Hardin District Court on March 26 and March 27, 1999.
The
jury convicted Brandenburg of all charges, and returned the
following penalties:
1.
On the 56 cruelty to animal counts, “1.5 months per
count for a total of 84 months and a fine of $200.00 per count
for a total of $11,200.00.”
2.
On the 66 failure to license counts, “a fine of
$50.00 per count for a total of $3,300.00"
3.
On the 66 failure to vaccinate counts, “a fine of
$100.00 per count for a total of $6,600.00"
4.
On the 264 failure to obtain a business license
counts, “a fine of $20.00 per count with 264 counts for a total
of $5,280.00.”
Post-trial, Brandenburg filed a motion requesting that
the court amend her 84-month jail sentence to twelve months to
conform with the one year cap on aggregate misdemeanor sentences
under KRS 532.110(b).
Brandenburg also moved that her 56 1.5
month sentences be run concurrently under Stoker v. Commonwealth,
Ky., 828 S.W.2d 619 (1992).
By order entered April 10, 1998, the district court
denied Brandenburg’s motion to run her jail sentences
concurrently under Stoker, supra, and granted the motion to cap
her sentence at twelve months under KRS 532.110(b).
On April 13, 1999, the district court amended its April
10 order making it final and appealable.
Brandenburg appealed to
Hardin Circuit Court.
On appeal, Brandenburg argued: (1)that the multiple 1.5
month jail sentences should be run concurrently under Stoker
supra, (2) that the $26,380 in total fines violated KRS
-2-
534.040(2)(a) (which provides for a maximum $500.00 fine for a
single Class A misdemeanor conviction) and the Kentucky and
United States Constitutional prohibitions against excessive
fines.
By order entered December 15, 1999, the Hardin Circuit
Court affirmed the lower court’s judgment.
We granted
Brandenburg’s motion for discretionary review.
KRS 532.110(2) provides that “[i]f the court does not
specify the manner in which a sentence imposed by it is to run,
the sentence shall run concurrently with any other sentence which
the defendant must serve.”
Brandenburg contends that the
district court pronounced sentence on the cruelty to animals
charge of “1.5 months for 84 months total of 56 counts”,
following the conclusion of the March 27, 1999 trial.
Brandenburg relies upon the district court’s March 27, 1999 bench
calendar entries.
Brandenburg submits that sentences must be run
concurrently, because the calendar entries do not specify the
terms “consecutive” and/or “concurrent.”
The subject calendar entry actually states “jury
finding Sentence 1.5 months for 84 months total of 56 counts
Cruelty 2d.” (Emphasis added.)
As we construe the entry, it
simply notes the sentence the jury imposed, not that the court
had actually imposed sentence on March 27, 1999.
Brandenburg
concedes that the trial court “orally reserved jurisdiction to
‘review the sentence’ on post-trial motions regarding consecutive
versus concurrent sentencing.”
The trial court did not fail to
specify whether Brandenburg’s sentences were to run concurrently
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or consecutively; rather, the trial court merely reserved its
ruling on the issue.
The April 10, 1999 order clearly indicates
the sentences were to run consecutively up to the 12-month
aggregate limit imposed by KRS 532.110(1)(b), satisfying any KRS
532.110(2) concerns in this case.
Brandenburg also contends that the trial court failed
to include a jury instruction regarding whether any of the
multiple sentences were to run concurrently or consecutively.
She seeks to persuade us that her 56 1.5 month sentences must be
run concurrently under Stoker v. Commonwealth, supra.
was not preserved.
The issue
Brandenburg fails to cite to the record
showing any objection to the jury instruction.
In fact,
Brandenburg concedes that trial counsel did not object to the
instructions and did not tender alternative instructions.
Nevertheless, we will address Brandenburg’s argument under the
"palpable error" rule expressed in RCr 10.26.
In support of her position, Brandenburg relies
principally upon Stoker, supra, a multiple felony case.
There,
the jury was only given the choice of recommending that either
all or none of the multiple felony sentences be run
consecutively.
The jury ultimately recommended that all the
sentences be run consecutively.
The Supreme Court held that, in
felony cases involving multiple convictions, instructions must
provide the jury with the option of running all, none, or any
combination of multiple sentences consecutively.
-4-
The Supreme
Court directed that all of Stoker’s sentences should be run
concurrently, to remedy the error.
Here, the only conviction resulting in a sentence of
incarceration was the second-degree cruelty to animal charge.
The Completed “Form Verdict No. 1" stated as follows:
We, the jury, find the Defendant guilty of 56
counts of Second-Degree Cruelty to Animals
under Instruction No. 1 and fix her
punishment at 1.5 months per count for a
total of 84 months and a fine of $200.00 per
count for total of $11,200.1
Brandenburg is not entitled to relief under the
palpable error standard as set forth in RCr 10.26.
Under this
rule, an error is reversible only if a manifest injustice has
resulted from the error.
If, upon consideration of the whole
case, there is not a substantial possibility the result would
have been different, the error will be deemed nonprejudicial.
Jackson v. Commonwealth, Ky. App., 717 S.W.2d 511 (1986); Graves
v. Commonwealth, Ky., 17 S.W.3d 858, 864 (2000).
The jury fixed Brandenburg’s punishment at “1.5 months
for a total of 84 months.”
Brandenburg states in her brief,
“[f]rom the verdict form, it is clear that the jury intended to
sentence the Appellant to eighty-four months in the county
jail[.]”
We agree.
Moreover, the trial court capped
Brandenburg’s sentence at 12 months in accordance with KRS
1
On the jury verdict form, “guilty” was circled and the
underlined portions were handwritten.
-5-
532.110(1)(b).
Thus, Brandenburg was not prejudiced by the trial
court’s failure to give a Stoker instruction.
Had such an
instruction been given, Brandenburg would have inevitably
received a 12-month sentence.
Brandenburg also contends that the circuit court erred
in affirming the district court’s imposition of $26,380.00 in
fines.
Brandenburg argues that the fines are excessive and
violate KRS 534.040, Amendment VIII of the United States
Constitution, and § 17 of the Kentucky Constitution.
First, we consider whether the fines violate KRS
534.040.
(1) Fines and imprisonment for misdemeanors
shall not be mutually exclusive. In any case
where imprisonment is authorized, a fine may
be levied in addition to the imprisonment, or
a fine may be levied as an alternative to
imprisonment. Similarly, a fine may be levied
in lieu of imprisonment. Whether the fine is
to be levied as the sole penalty or as an
additional or alternative penalty shall be in
the discretion of the judge or jury as the
case may be. If the trial is by jury, the
jury shall have the discretion. This rule
shall apply in all cases where a fine is not
the exclusive penalty authorized by law.
(2) Except as otherwise provided for an
offense defined outside this code, a person
who has been convicted of any offense other
than a felony shall be sentenced, in addition
to any other punishment imposed upon him, to
pay a fine in an amount not to exceed:
(a) For a Class A misdemeanor, five hundred dollars ($500); or
(b) For a Class B misdemeanor, two hundred
fifty dollars ($250); or
(c) For a violation, two hundred fifty dollars ($250).
-6-
KRS 534.040 does not, on its face, impose a cap on the
aggregation of misdemeanor fines.
This is in stark contrast to
the provision in the immediately preceding statute, KRS
534.030(3), which provides:
[w]hen a defendant is convicted of two (2) or
more felonies committed through a single act
and is sentenced to fines pursuant to
subsection (1), the aggregate amount of the
fines shall not exceed ten thousand dollars
($10,000) or double the amount of the
defendant's gain from commission of the
offenses, whichever is the greater.
In interpreting statutes, this Court must "ascertain
and give effect to the intention of the Legislature . . . ."
Moore v. Alsmiller, 289 Ky. 682, 686-687; 160 S.W.2d 10, 12
(1942).
The intention "must be determined from the language of
the statute itself if possible."
Id.
Where legislation includes
particular language in one section of a statute, but omits it in
another section of the same Act, it is generally presumed that
the legislature acted intentionally and purposefully in the
disparate inclusion or exclusion.
Keene Corp. v. United States,
508 U.S. 200, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993);
Russello
v. United States, 464 U.S. 16, 104 S.Ct. 296, 78 L.Ed.2d 17
(1983).
KRS 534.040 does not provide for an aggregate limit upon
multiple misdemeanor fines for misdemeanor convictions committed
through a single act, unlike KRS 534.030(3), dealing with
felonies.
The commentary to KRS 534.040 states, that the
misdemeanor fine scheme differs from the felony fine scheme
because “fines for misdemeanors are generally more useful and
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appropriate for purposes of deterrence than are fines for
felonies.”
We conclude that the legislature did not intend to
place a cap in the case of multiple misdemeanor fines.
Brandenburg also argues that the fines are excessive,
in violation of § 17 of the Kentucky Constitution and Amendment
VIII to the United States Constitution.
Section 17 of the
Kentucky Constitution provides that “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel punishment
inflicted.”
The VIII Amendment of the United States Constitution
contains essentially identical language.
Workman v. Commonwealth, Ky., 429 S.W.2d 374, 378
(1968), applies a test to determine whether fines are excessive - whether the punishment shocks the general conscience of society
today and is intolerable to fundamental fairness.
Commonwealth v. Fint, Ky., 940 S.W.2d 896, 898 (1997),
adopts the three-prong analysis from Solem v. Helm, 463 U.S. 277,
103 S.Ct. 3001, 77 L.Ed.2d 637 (1983): (1) the gravity of the
offense and harshness of the penalty; (2) the sentences imposed
upon other criminals in the same jurisdiction; and (3) the
sentences imposed for commission of the same crime in other
jurisdictions.
In other cases, Kentucky courts have noted that §
17 of the Constitution of Kentucky is a constitutional limitation
on the Legislature, in fixing punishment by statute, that is not
applicable to punishment set by a jury so long as it does not
exceed the statutory limits.
Bradley v. Commonwealth, 288 Ky.
416, 156 S.W.2d 469 (1941);
McElwain v. Commonwealth, 289 Ky.
-8-
446, 159 S.W.2d 11 (1942);
Weber v. Commonwealth, 303 Ky. 56,
196 S.W.2d 465 (1946); Monson v. Commonwealth, Ky., 294 S.W.2d
78, 80 (1956).
However, the courts do have the power to declare
a penalty unconstitutional, if it clearly and manifestly appears
to be so.
Weber, supra.
Brandenburg was convicted of 452 counts involving the
violation of four distinct statutes and ordinances.
Obviously,
in considering whether there is any violation of the excessive
fines clause, the matter must be considered in this context, and
not as a $26,380.00 fine for a single act.
Second-degree cruelty to animals in violation of KRS
525.130, is a Class A misdemeanor, which carries a maximum fine
of $500.00.
KRS 534.040(2)(a).
There is no statutory
requirement that multiple misdemeanor fines be capped.
Brandenburg received a $200.00 fine for each of the 56
convictions, totaling $11,200.00.
We cannot agree with
Brandenburg that the fines were excessive.
The fine imposed per
cruelty conviction was only 40 percent of the maximum allowed by
statute.
Considering the conditions in which Brandenburg kept
the animals, the fines were not fundamentally unfair, nor do they
shock the conscience.
Brandenburg was also convicted of 66 counts of failure
to license a dog, a violation of KRS 258.135.
The penalty for
violation of the statute is $5.00 to $100.00 per violation and
imprisonment from 5 to 60 days, or both.
Brandenburg was fined
$50.00 per count, for a total of $3,300.00 in fines.
-9-
The fines
were well within the amount permitted by statute, and in no way
shock the conscience, or violate state and federal prohibitions
against excessive fines.
Brandenburg was convicted of 66 counts of failure to
vaccinate a dog for rabies, a violation of KRS 258.015.
KRS
258.990 specifically provides that each day of violation shall
constitute a separate offense and that the fine per conviction
shall be not less than $10.00 per day nor more than $100.00 per
day.
Although KRS 258.990 provides that each day constitutes a
separate violation, Brandenburg was charged with only one day of
violation per dog.
Under the circumstances, the $6,600.00 in
fines for failure to vaccinate was not excessive.
Finally, Brandenburg was convicted and fined $20.00 per
violation for 264 violations of Radcliff’s business license
ordinance.
A $20.00 per day fine for failure to properly obtain
a business license is not constitutionally excessive.
The judgment of the Hardin Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Timothy Denison
Louisville, Kentucky
Albert B. Chandler III
Attorney General
Gregory I. Thompson
Elizabethtown, Kentucky
Elizabeth A. Heilman
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENTS FOR APPELLANT:
Timothy Denison
Louisville, Kentucky
ORAL ARGUMENTS FOR APPELLEE:
Elizabeth A. Heilman
Frankfort, Kentucky
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