CLARK (EARL) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 22, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000073-MR
EARL CLARK
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE IRV MAZE, JUDGE
ACTION NOS. 07-CR-001221 & 08-CR-002840
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: LAMBERT, THOMPSON, AND WINE, JUDGES.
THOMPSON, JUDGE: Earl Clark appeals the December 11, 2008, judgment of
conviction and sentence of the Jefferson Circuit Court finding Clark guilty of one
count of receiving stolen property over $300 and sentencing him to two-years’
incarceration, enhanced to five years by virtue of a persistent felony offender
(PFO) conviction.1 The two issues presented are whether Clark was denied due
1
See KRS 532.080.
process when the Commonwealth indicted Clark on the PFO offense during his
trial on the underlying substantive offense and whether a Texas misdemeanor
conviction can be used as an underlying conviction for Clark’s PFO charge.
Clark was indicted on April 5, 2007, on one count of receiving stolen
property over $300. A jury trial occurred on September 24 and 25, 2008. On the
morning of September 25, 2008, the Commonwealth informed the trial court that
Clark was eligible for a PFO charge and that it was in the process of seeking an
indictment. The PFO charge was based on two prior convictions: robbery in the
first degree in Jefferson County, Kentucky; and assault dating violence in Travis
County, Texas, a Texas misdemeanor, for which Clark was sentenced to one year.
After the jury retired to deliberate on the charge of receiving stolen
property over $300 but before a verdict, the PFO indictment was returned, and
Clark was arraigned on the charge. Clark’s counsel then moved to postpone any
further proceedings on the PFO charge until after the jury returned a verdict on the
underlying charge. The motion was granted, and the jury subsequently returned a
guilty verdict on the charge of receiving stolen property over $300.
The following day, Clark appeared for the sentencing portion of his
trial and announced a desire to enter a conditional guilty plea to the PFO charge as
opposed to allowing the jury to set the sentence. The Commonwealth made an
offer of two-years’ imprisonment for the conviction of receiving stolen property
over $300. In exchange, the PFO charge was amended from first-degree to
second-degree, and the Commonwealth recommended the minimum sentence of
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five years on the charge. Clark accepted the offer conditioned on the right to
appeal the PFO charge. Clark also moved the trial court to dismiss the PFO charge
on the basis that the Texas conviction was designated as a misdemeanor by that
state and, therefore, failed to make him eligible for PFO status. The trial court
denied the motion, stating that the term of the sentence, not the designation of the
crime by another state, was controlling, and that the Texas charge was therefore
appropriately considered for PFO eligibility. A judgment of conviction and
sentence was entered finding Clark guilty of receiving stolen property over $300
and sentencing him to two years, enhanced to five years by virtue of the PFO. This
appeal followed.
Initially, Clark argues that he was denied due process by the
Commonwealth’s failure to indict him on the PFO charge prior to the
commencement of his trial. In response, the Commonwealth argues that the issues
regarding the timing of the indictment were not properly preserved and that Clark
was not prejudiced.
Regarding the issue of preservation, the record reveals that Clark’s
counsel verbally informed the trial court that the issue was being preserved for
appeal. However, even if unpreserved, the issue is subject to the palpable error
rule.
In Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006), the
Court analyzed the palpable error rule.
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For an error to be palpable, it must be easily perceptible,
plain, obvious and readily noticeable. A palpable error
must involve prejudice more egregious than that
occurring in reversible error. A palpable error must be so
grave in nature that if it were uncorrected, it would
seriously affect the fairness of the proceedings. Thus,
what a palpable error analysis boils down to is whether
the reviewing court believes there is a substantial
possibility that the result in the case would have been
different without the error. If not, the error cannot be
palpable. (internal quotations and footnotes omitted).
We are persuaded that the timing of the indictment on the PFO charge was so
prejudicial to Clark’s defense that the error was palpable and, therefore, we address
the substance of Clark’s due process argument.
In Price v. Commonwealth, 666 S.W.2d 749 (Ky. 1984), the Kentucky
Supreme Court interpreted the PFO statute to require that if the Commonwealth
seeks enhancement by proof of PFO status, the defendant is entitled to notice
before the trial of the underlying substantive offense. Id. at 750. The Court in
Price further stated that “a defendant must receive reasonable notice and an
opportunity to be heard relative to the recidivist charge even if due process does
not require that notice be given prior to the trial on the substantive offense.” Id.
(quoting Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446
(1962)). In Price, the issue was whether the PFO charge must be included in the
same indictment as the underlying substantive offense. In this case, the question is
whether the Commonwealth could indict on the PFO charge during the trial on the
underlying offense without warning, without the opportunity to defend, and
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without notice to Clark of the severity of the potential penalty should he be found
guilty.
Essentially, the Commonwealth ambushed Clark during the trial on
the substantive offense with a separate indictment for PFO. To have the evidence
to secure the indictment, the Commonwealth was aware of the conviction prior to
trial yet failed to provide discovery to Clark, including certified copies of the
judgment of conviction. In the Commonwealth’s response to the discovery order,
there was no mention of any exhibits, witnesses, or testimony relating to the PFO
charges. It is unconscionable and does not comport with the basic notion of due
process to return a PFO indictment while a defendant is being tried on the
substantive charge. Not only did the Commonwealth leave Clark with no
opportunity to prepare a defense to the PFO charge, but any possibility of an
informed plea agreement was foreclosed.
At least one court has held that Oyler, quoted by our Supreme Court
in Price, did not set the constitutional floor regarding enhancement notices. In
Pelache v. State, 294 S.W.3d 248 (Tex. App. 2009), the court distinguished Oyler
noting that it was presented in a habeas corpus petition. Ultimately, the Texas
Court held that basic due process requires that the defendant be informed of the
nature of the charges he is accused and the consequences of a conviction before
jeopardy attaches so that he is aware of the potential consequences of a conviction
and to prepare a possible defense. Id. at 252. We agree with the view expressed
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by the Texas Court and hold that it is contrary to the basic notion of due process to
return a PFO indictment during the trial on the underlying offense.
Because we are reversing and the issue may be presented to the trial
court, we address whether Clark’s Texas conviction could be used to support a
PFO charge.
PFO conviction and sentencing are governed by KRS 532.080, which
states, in pertinent part:
(3) A persistent felony offender in the first degree is a
person who is more than twenty-one (21) years of age
and who stands convicted of a felony after having been
convicted of two (2) or more felonies, or one (1) or more
felony sex crimes against a minor as defined in KRS
17.500, and now stands convicted of any one (1) or more
felonies. As used in this provision, a previous felony
conviction is a conviction of a felony in this state or
conviction of a crime in any other jurisdiction provided:
(a) That a sentence to a term of imprisonment of one (1)
year or more or a sentence to death was imposed
therefor[.]
The Texas conviction which Clark challenges, assault dating violence,
is a Class A misdemeanor. V.T.C.A. 22.01. Under Texas law, a misdemeanor is a
crime with a maximum penalty of one year confinement in jail. V.T.C.A. 12.21.
Although Kentucky uses the term “twelve months” in regard to defining a
misdemeanor as opposed to “one year,” our distinction between a misdemeanor
and a felony is identical to that codified in Texas. Offenses punishable by a year or
more are defined as felonies. KRS 500.080(5). Offenses (other than traffic
infractions) are defined as offenses punishable by no more than “a sentence to a
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term of imprisonment of ... twelve (12) months[.]” KRS 500.080(10). Thus, we
are presented with a novel fact situation and a problematic application of KRS
532.080(3).
Clark’s Texas conviction resulted in the imposition of a sentence of
precisely one year in the county jail. Under any interpretation of the Texas statute
or the Kentucky statute, his prior Texas conviction was a misdemeanor. The issue
then is whether KRS 532.080(3) can be read logically and consistent with the
legislative intent to transform what is under all pertinent laws a misdemeanor into a
felony for the sole purpose of sentencing enhancement. We conclude that such a
result is absurd and now clarify the law as to the designation of a felony sentence
of one year for purposes of KRS 532.080(3).
Clark is not the first to challenge the use of a conviction entered by a
sister jurisdiction used as a basis for a PFO conviction. In Commonwealth v.
Davis, 728 S.W.2d 532 (Ky. 1987), the conviction used to support the PFO
conviction was designated as a felony under Ohio law. The Court rejected Davis’s
contention that it could not be used as a basis for the PFO conviction because the
sentence imposed was for six months to five years probated for three years. The
court deemed the maximum sentence that could have been imposed to be
determinative under the Kentucky persistent felony offender statute.
The Court again addressed the issue in Ware v. Commonwealth, 47
S.W.3d 333 (Ky. 2001), but on dissimilar facts than those now presented. Ware
had two prior convictions designated as misdemeanors under North Carolina law;
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however, each carried a maximum penalty of two years. A sentence of eighteen
months probated for three years was imposed on the first conviction and two years
probated for three years was imposed on the second. Because both sentences were
in excess of one year, the Court held despite the designation as misdemeanors
under North Carolina law, the convictions could be used under the Kentucky
persistent felony statute. Id. at 334.
The present case is unique in that Clark’s conviction is a misdemeanor
offense under Texas and Kentucky law. Although the one-year sentence straddles
the line between the length of imprisonment for a misdemeanor and that for a
felony, the place of punishment is that for a misdemeanor. We are convinced that
our General Assembly did not intend that a misdemeanor offense be arbitrarily
converted into a felony classification for the purpose of a PFO conviction.
Our reasoning is consistent with the 1974 Commentary to KRS
532.080(3) as repeated in Ware:
Subsection (2) [now subsections (2) and (3)] sets forth a
definition of a previous felony conviction. It requires in
subsection (a) that the previous offense must have been
accompanied by a sentence of imprisonment for one year.
This requirement seeks to account for the possibility of
conviction from a state which has a distinction between
felony and misdemeanor that is different from that used
in this state. Thus, although such conviction is for an
offense designated in that other state as a misdemeanor, it
can be treated as a felony for purposes of this statute if it
carried a penalty of one year or more. (Emphasis added).
Id. at 334. Except for the merely semantic distinction between “twelve months”
and “one year,” Texas and Kentucky distinguish a felony and misdemeanor
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precisely the same based on the length and place of punishment. Thus, consistent
with the commentary to KRS 532.080(3), although it was a one-year sentence,
Clark’s conviction is a misdemeanor.
The result reached is consistent with our penal code. Our courts are
frequently presented with penalty ranges that are applicable to different
classifications of crimes. For instance, under our current statutory scheme, a fiveyear sentence can be a Class D felony, while another five-year sentence can be a
Class C felony. The same is true for the one-year maximum penalty for a
misdemeanor or the minimum one-year penalty for a felony. As a consequence,
our courts impose felony one-year sentences and misdemeanor one-year sentences.
To eliminate any possible confusion regarding whether a foreign conviction to
which the defendant was sentenced to one year, we state the rule: A crime for
which a maximum sentence of one year or less could be imposed is a misdemeanor
and a crime for which the minimum sentence that could be imposed is one year or
more is a felony. Therefore, if the sentencing range of a conviction which results
in one year or less exceeds one year, it is a felony. Upon motion, the court shall
conduct an analysis of the sentencing statute of the jurisdiction wherein the
defendant was convicted. If the sentencing range imposes any sentence which
exceeds one year, then that sentence is a felony. The one-year sentence imposed in
Texas was the maximum sentence within the sentencing range of Mr. Clark’s
conviction and, therefore, it is a misdemeanor.
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Based on the foregoing, the judgment of conviction and sentence of
the Jefferson Circuit Court is reversed.
LAMBERT, JUDGE, CONCURS.
WINE, JUDGE, CONCURS IN RESULT ONLY IN PART,
DISSENTS IN PART, AND FILES SEPARATE OPINION.
WINE, JUDGE, CONCURRING IN RESULT ONLY IN PART
AND DISSENTING IN PART: Contrary to the Commonwealth’s position, it is
clear from both the written record as well as the plea sheets which are included in
the record, that Clark properly preserved two issues for our consideration, to wit:
the denial of due process by the return of a second indictment charging him with
the PFO I enhancement during trial; and the failure to prove that an out-of-state
conviction qualified as a felony. During the plea colloquy, Clark’s defense counsel
discussed with the trial judge the problem with defending against a new indictment
returned during the second day of jury trial. Further, the plea agreement, signed by
the Commonwealth’s Attorney, states in part, “[Defendant] waives right of appeal
to trial. [Defendant] retains right to appeal PFO II.” Clearly, the Commonwealth
could have limited the scope of the issues preserved for appeal. It is not necessary
to engage in a palpable error analysis under Kentucky Rule of Criminal Procedure
(“RCr”) 10.26, as the majority has done. Our Supreme Court has previously found
that such language, even if inartfully drawn, is sufficient to preserve the issue for
appellate review when a conditional plea is entered pursuant to RCr 8.09.
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Dickerson v. Commonwealth, 278 S.W.3d 145 (Ky. 2009); Gabbard v.
Commonwealth, 887 S.W.2d 547 (Ky. 1994).
In support of his due process argument, Clark cites to Price, supra,
which states, in part: “We interpret the PFO statute as requiring that if the
Commonwealth seeks enhancement by proof of PFO status, the defendant is
entitled to notice of this before the trial of the underlying substantive offense.” Id.
at 750. The Court in Price further states:
. . . [D]ue process does not require advance notice that
the trial on the substantive offense will be followed by an
habitual criminal proceeding (Citation omitted).
Nevertheless, a defendant must receive reasonable notice
and an opportunity to be heard relative to the recidivist
charge even if due process does not require that notice be
given prior to the trial on the substantive offense.
Id. at 750, quoting Oyler v. Boles, 368 U.S. at 452, 82 S.Ct. at 503. Accordingly,
the Court in Price, via the language of Oyler, indicated that the only requirements
are reasonable notice and an opportunity to be heard. The Court in Price further
stated “[i]f Price did need more time to adequately prepare his defense to the PFO
charge in this case, he could have requested a continuance for this purpose. The
record reflects that Price did not challenge the Commonwealth’s evidence on the
PFO charge.” Id. at 750 (Emphasis added).
Likewise, Clark did not request a continuance from the trial court in
order to prepare a defense to the PFO charge. A short continuance of the jury trial
between the substantive and penalty phases could easily have been accomplished.
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Clark challenged the use of the Texas offense as a basis for the PFO charge.
However, other than a general motion to dismiss the PFO indictment, he failed to
request any relief whatsoever from the trial court. It would be inappropriate for us
to now grant Clark relief which was never requested from the trial court.
The majority addresses the issue of initial trial discovery. In response
to the trial court’s discovery order, the Commonwealth filed a response which
itemized Clark’s prior criminal record. That information apparently did not
include Clark’s previous, PFO-qualifying convictions. Presumably, Clark was
aware of his own criminal record. He did not request further discovery of that
issue and we must therefore assume that he was satisfied with what was provided
by the Commonwealth. Furthermore, the record reveals that Clark’s prior
convictions were mentioned by the Commonwealth, Clark, and Clark’s counsel,
during several bond reduction hearings on May 24, 2007, November 7, 2007, and
March 18, 2008. While the majority is of the opinion that the Commonwealth
“ambushed” Clark, I do not agree. In fact, it appears that Clark’s trial counsel does
not even share this belief. Such an allegation was not raised in Clark’s brief, and
the record reveals that his counsel stated to the trial judge, “I do not allege that
there was any intentional withholding or sandbagging by the Commonwealth.
Quite the contrary, they have been forthcoming and forthright with me in this
case.” There have been no allegations of prosecutorial misconduct, and I will not
formulate such an argument where one does not exist.
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I certainly agree that the Commonwealth’s timing of the PFO
indictment was not good practice. Had the PFO indictment been returned prior to
trial, both defense counsel and the Commonwealth would have had ample
opportunity to adequately research the Texas penal code, most likely reaching the
result set out below. The majority believes that the late indictment foreclosed
Clark’s possibility of an informed plea agreement. However, there is no absolute
right to a plea agreement. Such agreements are at the discretion of the
Commonwealth. The majority’s opinion makes the presumption that, if the PFO
indictment had come sooner, a different plea offer would have been made and
accepted by Clark. Clark had not pled guilty before the PFO indictment was
returned, nor did he plea unconditionally after being so charged, preferring rather
to preserve his right to appeal. Such an opinion by the majority is purely
conjecture and fails to rise to the level of reversible error. Therefore, I dissent
from the majority opinion that Clark’s due process rights were violated.
I do concur, although for different reasons, with the majority’s
opinion that the Commonwealth failed to prove that Clark’s 2003 conviction from
Texas constituted a felony under Texas or Kentucky law.
Clark was convicted on September 15, 2003, in “The County Court at
Law No. 4, Travis County, Texas”.2 A form styled, “Judgement (sic) of
2
Vernon’s Texas Statutes and Codes Annotated (“V.T.C.A.”)§ 25.2292. Travis County Court at
Law Provisions provide in part: “. . . (c) In addition to the jurisdiction provided by § 25.0003 and
other law, the County Court at Law Number 4 of Travis County has concurrent jurisdiction with
the district court in state jail felony and third degree felony cases involving family violence, as
defined by Section 71.004, Family Code. The court shall give preference to cases in which
family violence is alleged, including cases under Title 4, Family Code.”
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Community Supervision” states that Clark was found guilty of “Assault Dating
Violence”, and further states that “the Court assesses punishment at confinement in
the Travis County Jail for a period of (1) year and a fine of $2500 . . .” While the
form is pre-printed, the offense, the sentence of imprisonment, and the fine are all
handwritten.
The V.T.C.A., Penal Code § 22.01 defines various assaultive offenses,
as follows:
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes
bodily injury to another, including the person’s
spouse;
....
(b) An offense under Subsection (a)(1) is a Class A
misdemeanor, except that the offense is a felony of the
third degree if the offense is committed against:
....
(2) a person whose relationship to or association with
the defendant is described by Section 71.0021(b),[3]
71.003, or 71.005, Family Code, if:
(A) it is shown on the trial of the offense that the
defendant has been previously convicted of an
offense under this chapter, Chapter 19, or Section
20.03, 20.04, 21.11, or 25.11 against a person
whose relationship to or association with the
3
V.T.C.A., Family Code § 71.0021, states that, “(a) ‘Dating violence’ means an act by an
individual that is against another individual with whom that person has or has had a dating
relationship and that is intended to result in physical harm, bodily injury, assault, or sexual
assault or that is a threat that reasonably places the individual in fear of imminent physical harm,
bodily injury, assault, or sexual assault, but does not include defensive measures to protect
oneself.”
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defendant is described by Section 71.0021(b),
71.003, or 71.005, Family Code; or
(B) the offense is committed by intentionally,
knowingly, or recklessly impeding the normal
breathing or circulation of the blood of the person
by applying pressure to the person’s throat or neck
or by blocking the person’s nose or mouth;
....
Neither the Texas judgment nor the Commonwealth during Clark’s
2008 plea of guilty offered any proof that the aggravators delineated in V.T.C.A.,
Penal Code § 22.01(a)(2)(A) or (B) applied. Additionally, pursuant to the
V.T.C.A., Penal Code § 12.34, a person “adjudged guilty of a felony of the third
degree shall be punished by imprisonment in the Texas Department of Criminal
Justice for any term of not more than 10 years or less than 2 years.” Clark received
only a one year sentence, clearly less than the punishment designated for Assault
Dating Violence, third-degree felony. Finally, the V.T.C.A., Penal Code § 1.07,
defines a felony as “an offense so designated by law or punishable by death or
confinement in a penitentiary.” (Emphasis added.) The judgment of conviction
sentenced Clark to confinement in the Travis County Jail.
In contrast, V.T.C.A., Penal Code § 12.21, directs that a Class A
Misdemeanor is punishable by, “(1) a fine not to exceed $4,000; (2) confinement in
jail for a term not to exceed one year; or (3) both such fine and confinement.”
Thus, by definition and application, Assault Dating Violence for
which Clark was convicted, must be a misdemeanor under the Texas Penal Code.
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For purposes of Kentucky’s PFO statute, a previous sentence must be
for a “term of imprisonment of one (1) year or more or a sentence to death”,
contemplating those offenses which are punishable by at least one year. The
commentary to KRS 532.080 notes, “Thus, although such conviction is for an
offense designated in that other state as a misdemeanor, it can be treated as a
felony for purposes of this statute if it carried a penalty of one year or more.”
(Emphasis added.) It is inconceivable that a clerical entry on the judgment from
Travis County, Texas, stating “(1) year” could increase the punishment set by the
Texas legislature which mandates the punishment “not exceed one year”.
Thus, I concur with the majority that Clark’s conviction as a PFO
must be reversed as the Texas conviction was for a misdemeanor offense, and the
previous conviction in Kentucky falls outside of the statutory time dictates of KRS
532.080.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Shannon Dupree
Assistance Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky
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