MICHAEL SPARKS V. COMMONWEALTH OF KENTUCKY
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED," PURSUANT TO THE RULES OF
C.IVIL PR OCED URE PROMULGA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USEDAS A UTHORITYINANY OTHER
CASE INANA'" COURT OF THIS STATE.
RENDERED : AUGUST 24, 2006
NOT TO BE PUBLISHED
,*Uyrrmp Courf of ~R'l
2005-SC-0254-MR
MICHAEL SPARKS
V
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
04-CR-169-002 AND 04-CR-252
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING, IN PART, AND REVERSING AND REMANDING, IN PART
A Boyd Circuit Court jury convicted Appellant, Michael Sparks, of one count of
trafficking in a controlled substance in the first degree, KRS 218A.1412, and found him
to be a persistent felony offender in the first degree, KRS 532.080. The jury sentenced
Appellant to ten years in prison for trafficking in a controlled substance in the first
degree, but declined to enhance the penalty under the persistent felony offender
statute, resulting in a total sentence of ten years' imprisonment. Nevertheless, the trial
court sentenced Appellant to twenty years' imprisonment. Appellant appeals to this
Court as a matter of right, Ky. Const. ยง 110(2)(b), asserting two claims of reversible
error: (1) the failure of the trial court to sentence Appellant to the correct term of
imprisonment, and (2) the failure of the trial court to allow voir dire concerning the
panel's ability to consider the full range of sentences available .
Appellant, his mother Ethel Keelin, and his brother Walter Sparks were indicted
for trafficking in a controlled substance in the first degree, KRS 218A.1412 . Appellant
and his mother each were indicted on three counts, and his brother was indicted on two
counts. All three were tried jointly . Appellant was charged with selling oxycodone, a
controlled substance, on May 30, June 1, and June 3 of 2004. He was also charged
with being a persistent felony offender in the first degree, KRS 532 .080(3).
The drug trafficking indictments against Appellant, Ethel Keelin, and Walter
Sparks arose from eight controlled drug buys conducted by Charles McIntyre, a
confidential informant for the Ashland Police Department . All transactions were
monitored and recorded by Ashland Police Department Detective Michael Crawford.
McIntyre and Detective Crawford testified concerning the details of the controlled buys,
and the recordings were played for the jury. However, the sound quality of the
recordings was poor, and the transactions were not visible to Detective Crawford.
The jury acquitted Appellant of the June 3 charge and was unable to reach a
verdict on the May 30 charge, resulting in a mistrial . However, the jury convicted
Appellant of the June 1 charge and then found him guilty of being a persistent felony
offender in the first degree.
I . SENTENCING.
KRS 532.080 provides that:
(1) When a defendant is found to be a persistent felony offender, the jury,
in lieu of the sentence of imprisonment assessed under KRS 532.060 for
the crime of which such person presently stands convicted, shall fix a
sentence of imprisonment as authorized by subsection (5) or (6) of this
section . . . .
(6) A person who is found to be a persistent felony offender in the first
degree shall be sentenced to imprisonment as follows :
(b) If the offense for which he presently stands convicted is a Class
C or Class D felony, a persistent felony offender in the first degree
shall be sentenced to an indeterminate term of imprisonment, the
maximum of which shall not be less than ten (10) years nor more
than twenty (20) years .
Appellant was convicted of one count trafficking in a controlled substance in the
first degree, a Class C felony . KRS 218A.1412 . The jury sentenced him to ten years in
prison on that charge . As he had been convicted of two previous felonies and is over
twenty-one years of age, he was also charged with and convicted of being a persistent
felony offender in the first degree . KRS 532 .080(3). The jury chose to sentence
Appellant to ten years in prison in lieu of the previous sentence for trafficking, following
the dictates of KRS 532 .080(1) and KRS 532 .080(6)(b). Therefore, in accordance with
the statute, Appellant's sentence should have been ten years' imprisonment.
Inexplicably, the final judgment provides that Appellant "shall be confined to the
State Penitentiary for a maximum term of Ten (10) Years on the charge of First Degree
Trafficking in a Controlled Substance, and Ten (10) years on the charge of First Degree
Persistent Felony Offender, to run consecutively, for a total sentence of Twenty (20)
Years ." The judgment is contrary to KRS 532.080 and our ruling in Pace v.
Commonwealth that "any attempt to run the persistent felony offender conviction either
concurrently with or consecutively to the underlying offense on which it is based . . .is
improper." 636 S.W .2d 887, 891 (Ky. 1982), overruled on other grounds by
Commonwealth v. Harrell, 3 S .W.3d 349 (Ky. 1999); see also Wellman v.
Commonwealth , 694 S.W.2d 696, 698 (Ky. 1985) . Although counsel failed to object to
the improper sentence at final sentencing,' "sentencing is jurisdictional [and] it cannot
be waived by failure to object ." Wellman , 694 S .W.2d at 698 . Therefore, as Appellant's
sentence is in clear violation of KRS 532.080, we remand the case to the Boyd Circuit
Court for re-sentencing .
II. VOIR DIRE.
Appellant argues the trial court committed reversible error by failing to allow voir
dire on the subject of the proper range of penalties for the indicted offenses . During voir
dire, co-defendant Ethel Keelin's counsel attempted to question jurors about whether
they could consider the full range of punishment for the crime of trafficking in a
controlled substance in the first degree, i .e. , five to ten years' imprisonment. The
prosecutor objected to the questioning, arguing that such information was not
admissible until the penalty phase of the trial . The trial court sustained the prosecutor's
objection and Keelin's counsel moved for a mistrial, stating that the law clearly allowed
such questioning . The motion was denied and Keelin's counsel renewed the motion for
a mistrial twice prior to the penalty phase of the trial . Appellant's counsel joined only in
the last of the renewed motions.
Lawson v. Commonwealth specifically holds that voir dire regarding the jury's
ability to consider the full range of penalties for each indicted offense is permissible . 53
S.W .3d 534, 541-44 (Ky. 2001). However, to preserve an error for appeal, a party must
timely inform the trial court of the perceived error and request the relief to which he
considers himself entitled . See West v. Commonwealth , 780 S.W.2d 600, 602 (Ky.
1989); RCr 9 .22. Furthermore, "where two or more defendants are being tried together,
it is incumbent upon each party to timely make the court aware of his objection to any of
The trial judge did not announce the actual sentence imposed during final sentencing,
which may explain the lack of an objection .
4
the proceedings ." Price v. Commonwealth , 474 S .W.2d 348, 350 (Ky. 1971). Appellant
did not join in the original motion for a mistrial and indeed only joined in the second
renewed motion. Thus, his objection is untimely, and the issue is not preserved for
appeal .
As a result, Appellant requests palpable error review, arguing that the failure to
allow voir dire affected his substantial rights and resulted in manifest injustice . RCr
10.26; Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky. 1997).
A finding of palpable error must involve prejudice more egregious
than that occurring in reversible error, and the error must have resulted in
manifest injustice . Authorities discussing palpable error consider it to be
composed of two elements : obviousness and seriousness, the latter of
which is present when a failure to notice and correct such an error would
seriously affect the fairness, integrity, and public reputation of the judicial
proceeding . A court reviewing for palpable error must do so in light of the
entire record ; the inquiry is heavily dependent upon the facts of each case .
Ernst v. Commonwealth , 160 S.W.3d 744, 758 (Ky. 2005) (internal citations and
quotations omitted) . Although the trial court's failure to allow voir dire concerning the
jury's ability to consider the full range of penalties was incorrect, it does not rise to the
level of palpable error . The mistake did not concern evidence affecting the validity of
Appellant's conviction but merely a lack of voir dire about sentencing . As Appellant
ultimately received the minimum allowable sentence for his persistent felony offender
conviction, his substantial rights were not affected, and no manifest injustice resulted
from the trial court's error . Thus, no palpable error occurred .
Therefore, we affirm Appellant's convictions but remand this case to the Boyd
Circuit Court for re-sentencing in accordance with this opinion .
All concur.
COUNSEL FOR APPELLANT :
Shelly R. Fears
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
Robert E . Prather
Assistant Attorney General
Office of the Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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