BERNARD MASON V. COMMONWEALTH OF KENTUCKY
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APPELLANT
BERNARD MASON
V.
ON APPEAL FROM GARRARD CIRCUIT COURT
HONORABLE C . HUNTER DAUGHERTY, JUDGE
NO. 07-CR-00019
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING
Bernard Mason appeals as a matter of right' from a circuit court
judgment sentencing him to twenty years' imprisonment after a jury convicted
him of one count of first-degree criminal abuse and of being a second-degree
persistent felony offender (PFO 2) . Mason contends that he was entitled to a
directed verdict on the abuse and PFO charges and that the jury instruction on
the abuse charge violated his right to a unanimous verdict under the Due
Process Clause of the United States Constitution . We agree that both the guilt
phase instructions and the penalty phase instructions created errors. But
neither error was preserved for appellate review, and we conclude neither error
was so overwhelmingly prejudicial as to rise to the level of being a palpable
Ky. Const. § 110(2)(b) .
error. We also conclude that other unpreserved errors occurring in the penalty
phase do not necessitate palpable error relief. So we affirm .
I. FACTUAL AND PROCEDURAL HISTORY .
The grand jury indicted Mason on one count of first-degree criminal
abuse, charging that Mason "caused serious injury to [M .M .], a child under
3 years of age, and also placed [M .M .] in a situation that might cause him
serious physical injury ." Approximately one year following the indictment,
Mason was separately indicted for being a PFO 2 .
At the beginning of the trial, the Commonwealth was permitted, without
objection, to amend the indictment containing the abuse charge to include
each of the three ways that one can be guilty of committing first-degree
criminal abuse under Kentucky Revised Statutes (KRS) 508 .100 . 2 The
indictment was also amended to track KRS 508 .100 more closely by reflecting
that the victim, M.M ., was less than twelve years of age.
2
KRS 508 . 100(l) provides as follows:
1) A person is guilty of criminal abuse in the first degree when he
intentionally abuses another person or permits another person of whom
he has actual custody to be abused and thereby:
(a) Causes serious physical injury; or
(b) Places him in a situation that may cause him serious physical injury;
or
(c) Causes torture, cruel confinement or cruel punishment;
to a person twelve (12) years of age or less, or who is physically helpless or
mentally helpless .
The Commonwealth's first witness was Dr. Jeremy Corbett, who was a
resident at the University of Kentucky Medical Center when M.M . arrived there
on transfer from another hospital. Dr. Corbett testified that M.M .'s chief injury
was a broken right leg and that M.M. had bruising or marks on various parts of
his body. Dr . Corbett concluded that these marks or bruises on M.M . were
consistent with abuse . And he stated that Mason had told him that he (Mason)
was legally blind and had fallen over M.M . when he went into M.M .'s bedroom
to check on him. M.M .'s mother apparently related a similar version of events
to Dr. Corbett. Dr. Corbett testified that M.M .'s serious fracture was not
consistent with Mason's version of the events . But, on cross-examination,
Dr. Corbett acknowledged, "anything's possible" ; and so he would respond in
the affirmative if asked if a million possible scenarios could have caused the
fracture .
The Commonwealth next called Dr. Vesna Criss, a professor at the
University of Kentucky College of Medicine, who is board-certified in radiology
and has a certificate of added qualification in pediatric radiology. Dr. Criss
examined x-rays of M.M. and testified that the type of fracture she saw there
was not common in two-year-olds. According to Dr. Criss, a direct blow from
Mason falling on M .M . would not have caused M.M .'s particular fracture.
Instead, she testified that the type of fracture M.M . suffered required the
application of a torquing force; although, she did admit on cross-examination
that the fracture M.M. suffered could have occurred in a fall if M .M .'s leg had
been subjected to some sort of twisting during the fall.
Following Dr. Criss, the Commonwealth presented the testimony of
Dr. Tracy Westerfield, who treated M.M before he was transferred to UK .
Dr. Westerfield testified that she noticed bruises on M.M .'s body, including her
observation that "there appeared to be what may have been a hand print on the
right lower leg." According to Dr. Westerfield's notes, Mason had stated that he
fell on M.M . while trying to keep M.M . from falling from his crib. On crossexamination, Dr. Westerfield testified that M.M .'s mother, or another family
member, actually may have related to her that version of events .
Dr. Westerfield stated that the Cabinet for Families and Children was notified
because of the questionable source of M.M .'s injuries .
A social worker later testified that based on an investigation, M.M. was
placed in foster care. The social worker stated that he had been told by Mason
that M.M. was injured when Mason fell on M.M . after M.M . had gotten out of
his crib . The social worker also testified that he witnessed M.M . slap Mason
and that M.M. yelled and screamed when Mason approached . The social
worker also testified that Mason had stated more than once that the state "may
as well" take M.M . if he (Mason) could not physically discipline M.M . Similarly,
another social worker testified that Mason had stated that he imposed corporal
punishment in attempting to toilet train M.M .
A nurse at the UK hospital testified that she noticed bruises in various
stages of healing all over M.M .'s body. The nurse testified that in her
experience, the bruises were not common for a child of M.M .'s age .
A third social worker testified that she saw M.M . at UK's emergency room
and noticed that M.M. was dirty and bruised and that his ear was discolored,
apparently from having been slapped. This social worker stated that Mason
had told her that he was the primary caregiver for M.M. since he did not work,
but M.M .'s mother did. Also, this social worker testified that Mason stated that
M.M .'s bruises stemmed from M.M . repeatedly falling.
After presenting some other evidence not germane to the issues in this
appeal, the Commonwealth closed its case-in-chief. Mason then testified in his
own behalf.
Mason testified that he is visually impaired and had attended the
Kentucky School for the Blind . Mason testified that on the night M.M . broke
his leg, he had heard a thump or loud noise emanating from M.M .'s room.
Responding, Mason rushed into M.M .'s room, tumbled over a box, and fell onto
M.M. Mason disputed Dr. Westerfield's contention that he had told her that he
had fallen onto M.M . while trying to keep M.M . in bed . Mason admitted being a
convicted felon but denied abusing M.M .
M.M.'s mother, Merissa Clifton, testified on Mason's behalf. She testified
that she worked as a nurse. She was home sick the day M.M . was injured.
Clifton stated that she heard a sound from M.M .'s room and that Mason had
gone to investigate . Clifton then heard what sounded like someone falling .
This sound prompted her to go
to M.M .'s room where she saw Mason on his
knees and M.M. crying. She then tried to get M.M . to stand up, but he could
not put any weight on his right leg.
Mason's brother also testified that he had been doing repairs at Mason's
house and that he had moved some items from another room in Mason's home
into M .M .'s room .
The trial court instructed the jury that it could find Mason guilty of firstdegree criminal abuse only if it found beyond a reasonable doubt all of the
following:
A.
That in this county on or about December 20, 2006, and
before the finding of the Indictment herein, he intentionally
abused [M .M .] ; AND
B.
That he thereby caused a serious physical injury to [M .M .] ; OR
C.
That he thereby caused [M .M.] to be placed in a situation
which might have caused him serious physical injury; OR
D . That he thereby caused [M .M .] to be subjected to torture, cruel
confinement, or cruel punishment ; AND
E.
That [M .M .] was at that time 12 years of age or less.
The jury found Mason guilty of first-degree criminal abuse . At the
conclusion of the penalty phase, the jury found Mason guilty of being a PFO 2
and recommended twenty years' imprisonment as his punishment .3 The trial
3
It would have been better practice for the jury to have been instructed to return a
recommended sentence on the criminal abuse conviction before addressing the
PFO charge and any consequent PFO-enhanced sentence . Commonwealth v.
Reneer, 734 S.W.2d 794, 798 (Ky. 1987) ("If the accused is also charged as a
persistent felony offender, the penalty phase and a persistent felony offender phase
can be combined . . . and the jury in the combined bifurcated hearing could be
instructed to (1) fix a penalty on the basic charge in the indictment; (2) determine
then whether the defendant is guilty as a persistent felony offender, and if so;
(3) fix the enhanced penalty as a persistent felony offender .") . But Mason does not
explicitly object to the failure to follow Reneer, and we decline to analyze this issue
further on our own motion . See Scott v. Commonwealth, No . 2008-SC-000814-MR,
2009 WL 4251132, at * 1 n .2 (Ky. Nov. 25, 2009) (citing Reneer for proposition that
jury should have affixed penalty for: underlying offense but holding that "since the
failure to recommend a sentence for the underlying rape conviction has not been
6
court sentenced him in accordance with the jury's verdict. Mason filed this
appeal as a matter of right.
II. ANALYSIS.
Mason raises three main arguments supporting reversal of the judgment .
He contends that the trial court erred by (1) failing to direct a verdict of
acquittal on the criminal abuse charge; (2) instructing the jury on all three
alternate ways -- despite a lack of proof on all three ways - of committing
criminal abuse, which created an issue of unanimity of the guilty verdict on
that'charge ; and (3) allowing numerous irregularities to occur in the penalty
phase, including a failure of proof on the PFO 2 charge.
We reject the directed verdict argument, but we agree with Mason that
the criminal abuse instruction created an error. But we conclude that error
does not rise to the level of being a palpable error . Similarly, we conclude that
the errors occurring in the penalty phase also do not necessitate the granting
of palpable error relief.
A. Mason was not Entitled to a Directed Verdict on the Criminal Abuse
Charge.
Mason contends he was entitled to a directed verdict on the criminal
abuse charge because the Commonwealth "did not establish the elements of
the offense under any of its three alternatives ." We disagree.
raised by the parties as an issue and because this case is not otherwise being
remanded, we decline to remand for a new sentencing sua sponte.") .
The familiar standard for ruling on a motion for directed verdict is as
follows:
On motion for directed verdict, the trial court must draw all
fair and reasonable inferences from the evidence in favor of the
Commonwealth . If the evidence is sufficient to induce a reasonable
juror to believe beyond a reasonable doubt that the defendant is
guilty, a directed verdict should not be given. For the purpose of
ruling on the motion, the trial court must assume that the
evidence for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to such
testimony.
On appellate review, the test of a directed verdict is, if under
the evidence as a whole, it would be clearly unreasonable for a jury
to find guilt, only then the defendant is entitled to a directed
verdict of acquittal.4
Under KRS 508 . 100, in order to prove that Mason committed the offense
of first-degree criminal abuse, the Commonwealth needed to prove the
following:
1)
Mason abused M.M . ; AND
2)
M.M. was twelve or under at the time of the abuse ; AND AT
LEAST ONE OF THE FOLLOWING :
a)
The abuse caused M.M . to suffer a serious physical
injury; OR
b)
The abuse placed M .M . in a situation that may have
caused him to suffer a serious physical injury; OR
The abuse constituted torture, cruel confinement, or
cruel punishment .
There is no real question that the Commonwealth proved that M.M. was less
than twelve years old. And, examining the evidence in the light most favorable
Commonwealth v. Benham, 816 S.W .2d 186, 187 (Ky. 1991) .
8
to the Commonwealth, a reasonable juror could have concluded that Mason
abused M.M.
.
To support a finding of abuse, a reasonable juror could have concluded
by inference that Mason broke M. M.'s leg. M.M. was apparently uninjured
when Mason entered M.M .'s room alone. Dr. Corbett testified that Mason's
story did not match the type of fracture M.M . suffered, and Dr. Criss testified
that the type of fracture M.M. suffered was not common in a two-year old.
Dr. Corbett testified that the bruising on M.M . was consistent with abuse.
Dr. Westerfield testified, somewhat tentatively, that her notes reflected what
might have been a handprint on M.M .'s right lower leg; and a nurse at the
UK Medical Center testified that the bruises she observed on M.M . were not
common for a two-year old . And, importantly, Mason was apparently the
primary caregiver for M.M. So, drawing all reasonable inferences in favor of the
Commonwealth and taking into account the totality of the testimony regarding
M.M .'s injuries, a reasonable juror could have concluded that Mason abused
M.M .5
We recognize that Mason presented his own theory of how M.M.'s
fracture and bruising occurred . But the jury was free to reject Mason's version
of events.
Abuse is defined at KRS 508 .090(1), in relevant part, as the "infliction of physical
pain . . . [or] injury . . . ." Logically, breaking a child's leg would cause the child to
suffer physical pain or injury . See also Carpenter v. Commonwealth, 771 S .W.2d
822, 824 (Ky. 1989) (holding in abuse case that juror could reasonably infer that
defendant was guilty because, among other reasons, defendant and his wife had
"exclusive control over the child" on the date the child suffered a head injury) .
9
Additionally, a reasonable juror could have concluded that the severe
nature of the fracture suffered by M.M . satisfied the serious physical injury
prong of KRS 508. 100. A "serious physical injury" is defined at
KRS 500.080(15) as "physical injury which creates a substantial risk of death,
or which causes serious and prolonged disfigurement, prolonged impairment of
health, or prolonged loss or impairment of the function of any bodily
organ . . . ."
Although factually distinguishable, we have held that less severe injuries
were enough to constitute a serious physical injury because of the presence of
substantial and prolonged pain.6 Similarly, the Court of Appeals has held that
an infant's broken arm was sufficient to support a finding of serious physical
injury.? Dr . Criss testified that M.M .'s fracture would require a cast for four to
six weeks and would take one year to heal completely .
We conclude that the trial court did not err in denying Mason's motion
for a directed verdict on the criminal abuse in the first-degree charge because
there was sufficient evidence to submit the criminal abuse charge to the jury
6
7
Parson v. Commonwealth, 144 S .W .3d 775, 787 (Ky. 2004) (holding that
headaches, muscle spasms, and arm numbness were enough to support a finding
of serious physical injury because "pain is an `impairment of health .' If the pain is
substantial, but not prolonged, it constitutes a `physical injury[';] but if it is
prolonged, then it is a `serious physical injury."') .
Clift v. Commonwealth, 105 S .W.3d 467, 471-72 (Ky.App. 2003) ("in the case sub
judice reasonable people could differ as to whether the injury suffered by Jack
caused `prolonged impairment of health' or `prolonged loss or impairment of the
function of any bodily organ.' Accordingly, we hold that a reasonable juror could
find that the significant impairment of the use of an 11-month-old child's arm for a
four-week period constitutes either `prolonged impairment of health' or `prolonged
loss or impairment of the function of [a] bodily organ' and thus constitutes a
`serious physical injury' under KRS 500.080(15) .") .
10
on the serious physical injury option . 8 Because there was sufficient evidence
to submit the case to the jury on at least one method of committing the abuse
offense, we need not determine in this section whether there was sufficient
evidence to support the alternate methods of committing the offense . 9 The fact
that Mason was not entitled to a directed verdict, however, does not necessarily
mean that the trial court acted properly in instructing the jury on all the
alternate methods of committing criminal abuse in the first degree .
B. Unanimity Error Did Not Occur.
It is not improper to include multiple alternative methods of committing
an offense in a single jury instruction . 10 Generally, "[a]ny instruction which
permits a conviction on the basis of alternative theories . . . not supported by
the evidence runs afoul of the due process requirement that each juror's verdict
be based on a theory of guilt in which the Commonwealth has proven each and
every element beyond a reasonable doubt ."" On more than one occasion, this
Court has held, "[w]hen a jury is presented with alternate theories of guilt and
s
We are aware that the trial court did not check the box in the final judgment that
would have signified a conclusion that the victim, M.M ., suffered death or a serious
physical injury ; but we, nonetheless, conclude that there was sufficient evidence to
support a finding that M.M . did suffer a serious physical injury .
Campbell v. Commonwealth, 564 S .W .2d 528, 530 (Ky. 1978) ("A motion for a
directed verdict of acquittal should only be made (or granted) when the defendant
is entitled to a complete acquittal[, i.e] ., when, looking at the evidence as a whole, it
would be clearly unreasonable for a jury to find the defendant guilty, under any
possible theory, of any of the crimes charged in the indictment or of any lesser
included offenses .") (emphasis added) .
ro See, e.g., Benjamin v. Commonwealth, 266 S.W.3d 775, 784 (Ky. 2008) ("Therefore,
when the evidence will support either mental state beyond a reasonable doubt, a
combination murder instruction is certainly proper.") .
Commonwealth v.- Whitmore, 92 S .W.3d 76, 81 (Ky. 2002) .
one or more of those theories are unsupported by the evidence, and the verdict
does not reflect under which theory guilt was found, the defendant has been
denied his right to a unanimous verdict." 12 But, as discussed below, this Court
has recently refined this principle in the case of superfluous language in the
instructions for which there was absolutely no supporting evidence and,
therefore, no real potential for a nonunanimous verdict.
Mason contends that error exists in this case because there was
insufficient evidence to support all of the three alternate methods of
committing criminal abuse in the first degree contained in the jury instruction
on that charge . We agree .
We reject Mason's argument that the trial court erred by permitting the
Commonwealth to amend the indictment . No new offense was charged in the
amended indictment ; and Mason made no contemporaneous objection to the
amendment, nor did he make a contemporaneous request for a continuance.
So we conclude that there was no error, palpable or otherwise, in the trial
court's permitting the Commonwealth to amend the indictment on the day of
trial. 13
12
13
Purcell v. Commonwealth, 149 S.W.3d 382, 393-94 (Ky. 2004), abrogated on other
grounds by Prater v. Commonwealth, 324 S .W.3d 393, 398-400 (Ky. 2010) .
See, e.g., Schambon v. Commonwealth, 821 S .W.2d 804, 809-10 (Ky. 1991)
("Appellants further claim error when the trial court allowed the Commonwealth to
amend its indictments at the close of its case in chief. The applicable rule,
RCr 6 .16, is a lenient rule which provides for the amendment of an indictment at
any time before the verdict and upon a finding that no additional or different
offense has been charged and that the substantial rights of the defendant are not
prejudiced .
The amendment allowed did not result in appellants being charged with a
different offense . To the contrary, the amendment merely altered the designation
12
Before we may address the merits of Mason's unanimity argument,
however, we must recite the standard of review we must use for this issue.
Mason concedes that this issue is not properly preserved . So we must analyze
this issue under the palpable error standard set forth in Kentucky Rules of
Criminal Procedure (RCr) 10.26 . 14 "In order to demonstrate an error rises to
the level of a palpable error, the party claiming palpable error must show a
`probability of a different result or [an] error so fundamental as to threaten a
defendant's entitlement to due process of law . "' 1 s
We have already held that there was sufficient evidence to submit to the
jury the issue of whether Mason intentionally caused a serious physical injury
to M.M . So there is no inherent error in that portion of the jury instruction .
The questions of whether there was sufficient evidence to submit to the jury
the issue of whether Mason placed M.M . in a situation that may have caused
M.M. to suffer a serious physical injury and whether there was sufficient
evidence to submit to the jury the question of whether Mason caused M.M . to
suffer torture, cruel confinement, or cruel punishment are more problematic.
As Professors Lawson and Fortune observe in their treatise on Kentucky
14
1s
of the subsection of the statute under which appellants were charged. The offense
was the same. No additional evidence was required to prove the amended offense
and appellants have not shown that they were prejudiced by the amendment.
There was no error.") .
RCr 10 .26 provides that "[a] palpable error which affects the substantial rights of a
party may be considered by the court on motion for a new trial or by an appellate
court on appeal, even though insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination that manifest injustice has
resulted from the error."
Allen v. Commonwealth, 286 S.W.3d 221, 226 (Ky. 2009) (quoting Martin v.
Commonwealth, 207 S .W.3d l, 3 (Ky. 2006)) .
13
criminal law, those alternate methods of committing criminal abuse "are less
precisely defined and [are] fraught with difficulty . . .
1.
."16
Placing M.M. in a Situation that May Have Caused Serious Physical
Injury.
According to KRS 508 .100(1) (b), a person may commit criminal abuse in
the first degree if he "intentionally abuses another person . . . and thereby . . .
[p]laces him in a situation that may cause him serious physical injury . . . ."
The General Assembly did not see fit to define more precisely what situations
may place an abused person in a situation that may cause that abused person
to suffer a serious physical injury . 17 Since the crucial word may does not
appear to us to be a technical term or a specialized term that has "acquired a
peculiar and appropriate meaning in the law," 18 we must construe the phrase
"places him in a situation that may cause him serious physical injury"
16
17
1s
8s WILLIAM H. FORTUNE, KENTUCKY CRIMINAL LAW § 9-6(b) (1998) .
See also Stoker v. Commonwealth, 828 S.W.2d 619, 624 (Ky. 1992) ("The Criminal
ROBERT G. LAWSON
Abuse statute, enacted in 1982, is one of the many statutes creating crimes
subsequent to the unified and coordinated 1974 Kentucky Penal Code, lacking the
clarity and precision of the Code.") .
Mason has not directly attacked KRS 508.100 as being void for vagueness, perhaps
because our precedent holds that it is not. Carpenter, 771 S.W.2d at 824.
However, despite apparently being directly asked to do so, in Carpenter, we did not
directly address what limits should be given the somewhat ambiguous term "may."
Id. ("The Carpenters argue that the word `may' as used in K.R.S. 508 .100(1)(b)
does not provide a fair description of the prohibited conduct because virtually any
conduct directed toward the child had the possibility of placing the child in a
situation that may cause serious physical injury . A proper interpretation of the
statute as a whole is that it does not apply to every situation where a child is
injured but only, to those instances where abuse is involved .") .
The only statutory definition of "may" is the unhelpful note in KRS 446 .010(20)
that may "is permissive . . . ."
14
consistent with the "common and approved usage of language . . . ."ig So we
shall construe may to mean, "have the ability or competence to . . .
."20
In
order for Mason to have been guilty of first-degree criminal abuse under
KRS 508 . 100 100(1)(b), therefore, Mason must have intentionally abused M.M. and
thereby placed M.M . in a situation that had the ability to cause M.M . to suffer
a serious physical injury.
No witness directly testified that Mason intentionally abused M.M . The
Commonwealth relies upon the fact that Mason was the primary caregiver for
M.M ., along with the fact that testimony indicated that M.M. had numerous
bruises or similar bodily injuries, which were atypical for a child of his age.
Even if we were to accept that a.reasonable inference could be drawn that
Mason abused M.M., the Commonwealth has cited to no evidence showing that
M. M.'s bruises were of such a severe nature, either singly or in combination, to
rise to the level of having the ability to cause M.M . to suffer a serious physical
injury.
Intentionally causing bruises to appear on a child, although certainly
improper, is not typically conduct so egregious as to have the ability to cause a
serious physical injury, meaning an injury "which creates a substantial risk of
death, or which causes serious and prolonged disfigurement, prolonged
impairment of health, or prolonged loss or impairment of the function of any
19
20
KRS 446 .080(4) ("All words and phrases shall be construed according to the
common and approved usage of language, but technical words and phrases, and
such others as may have acquired a peculiar and appropriate meaning in the law,
shall be construed according to such meaning.") .
WEBSTER's THIRD NEW INTERNATIONAL DICTIONARY (UNABRIDGED) 1396 (1993) .
15
bodily organ . . .
."21
As we stated in a case involving an assault charge against
a child stemming from a child being burnt with a lighter, "[w]ithout in any way
depreciating the hideous nature of such an act, the fact remains that there was
nothing to prove that this child was in danger of death from this injury, or from
any other injury inflicted upon [him] ."22
Were the bruises the only injuries suffered by M.M ., we may well have
concluded that there was insufficient evidence from which a reasonable juror
could have concluded that Mason placed M.M . in a situation which "may" have
caused M.M . to have suffered a serious physical injury. But, as previously
discussed, M.M . also suffered a serious fracture in his leg; and we have already
concluded that there was sufficient evidence from which a reasonable juror
could have concluded that Mason caused the fracture and that the fracture
constituted a serious physical injury. Logically, in order to have broken M.M.'s
leg, Mason would have had to have placed M.M . in a place or situation in which
the leg could have been broken. Following that logic, a reasonable juror could
have reached the conclusion that Mason placed M.M. in a situation that may
have caused M.M . to have suffered a serious physical injury. After all, in order
21
22
KRS 500.080(15) .
Souder v. Commonwealth, 719 S.W.2d 730, 732 (Ky. 1986) (overruled on other
grounds by B.B. v. Commonwealth, 226 S.W.3d 47, 51 (Ky. 2007)) . See also
Holbrook v. Commonwealth, 925 S .W .2d 191, 193 (Ky.App. 1995) (paddling by
teacher that resulted in student having bruised buttocks insufficient to constitute
serious physical injury) ; Carpenter, 771 S.W.2d at 826 (Leibson, J., dissenting)
(opining in criminal abuse case that "[t]here was no evidence from which to
conclude that these partially healed rib fractures met any minimally acceptable
definition for a serious physical injury.") .
16
,to suffer a serious physical injury, one must have been in a situation that may
have resulted in a serious physical injury.
In other words, it would be illogical for us to conclude that a reasonable
juror could have found that Mason actually caused M.M . to suffer a serious
physical injury while simultaneously concluding that a juror could not have
found that Mason merely placed M .M . in a situation that may have caused
M.M . to suffer a serious physical injury . Accordingly, we hold that there was
sufficient evidence reasonably to support a conclusion or inference that
Mason's abuse caused M.M. to be placed in a situation that had the ability to
cause M.M . to have suffered a serious physical injury.
2.
Causing M.M. to Suffer Torture, Cruel Confinement, or Cruel
Punishment.
We next must determine if error exists with the instruction that
permitted the jury to convict Mason if it believed he intentionally abused M.M.
and thereby tortured, cruelly confined, or cruelly punished M.M. We conclude
the instruction was erroneous but did not constitute palpable error.
a. Cruel confinement.
Simply put, the Commonwealth has shown us no facts that tend to prove
that Mason caused M.M. to suffer cruel confinement. Indeed, the
Commonwealth does not specifically cite to any conduct by Mason that even
arguably could be construed as Mason's having confined M.M ., cruelly or
otherwise . At most, the evidence would support an inference that Mason
somehow restrained M.M . by unknown means resulting in M.M .'s broken leg.
But we do not believe that restraining M.M . for an unknown period, likely
17
extremely brief in duration, by unknown means constitutes cruel confinement.
In short, the Commonwealth has pointed to no evidence at all to show that
M.M . was confined by Mason . The inclusion of cruel confinement language in
the jury instruction was, therefore, erroneous .23
b. Cruel punishment.
Although it does not really address or defend the cruel confinement
aspect of the instruction, the Commonwealth does argue that there was
sufficient evidence of cruel punishment . To support its argument, the
Commonwealth again relies upon the bruises on M.M ., which were
characterized as being consistent with abuse and atypical of children of M.M .'s
age .
Although government is prohibited by the Eighth Amendment to the
United States Constitution and Section Seventeen of the Kentucky Constitution
from imposing cruel punishment, "[w]hat constitutes cruel . . . punishment has
not been exactly decided."24 Instead, the prohibition on cruel punishment
"embodies broad and idealistic concepts of dignity, civilized standards,
humanity, and decency . . , "25 In Kentucky, we have held that cruel
punishment is "that punishment which shocks the conscience and violates the
23
24
See, e.g., Whitmore, 92 S.W .3d at 80-81 (error when trial court instructed jury that
it could convict Whitmore of trafficking in a controlled substance by possessing
cocaine with the intent to distribute, dispense, sell, or transfer it to another when
there was "no evidence that Whitmore possessed the cocaine with the intent to
manufacture or dispense it.").
24 C .J .S. Criminal Law § 2197 (2010) .
25
18
principles of fundamental fairness." 26 The Court of Appeals has also cited, with
approval, a dictionary definition of cruel as "`disposed to inflict pain or
suffering . . . . "27
Under those working definitions, we conclude that a juror could have
reasonably inferred that Mason inflicted cruel punishment upon M.M . It is
possible that the infliction of bruises consistent with abuse was sufficient to
constitute cruel punishment since our precedent holds that even spanking a
child may, at least in extreme situations, constitute cruel punishment under
KRS 508 .100 .28 Regardless of the bruises, however, we have no doubt that
intentionally breaking a child's leg, at least under the facts of this case, rises to
the level of cruel punishment . So construing all the evidence in the light most
favorable to the Commonwealth and drawing all reasonable inferences in its
favor, we conclude there was sufficient evidence for a reasonable juror to
conclude that M.M . subjected Mason to cruel punishment .
c. Torture.
We, likewise, believe that there was sufficient evidence for a juror to
conclude reasonably that Mason tortured M.M.
We have not had many occasions to determine what conduct constitutes
torture under KRS 508. 100. In Stoker, we had "no difficulty" in determining
26
27
28
Canler v. Commonwealth, 870 S.W.2d 219, 222 (Ky. 1994) (citing Workman v.
Commonwealth, 429 S .W.2d 374 (Ky. 1968)) .
Cutrer v. Commonwealth, 697 S.W.2d 156, 158 (Ky.App . 1985) (quoting WEBSTER'S
NINTH NEW COLLEGIATE DICTIONARY 311 (1984)) .
Canler, 870 S.W.2d at 222 ("It is the jury's function to determine whether the
amount of force used during a spanking constitutes cruel punishment. . . . [W]e do
not find that spanking can never be cruel punishment . . . .") .
19
that "tying up . . . children, putting tape over their mouths, and forcing them to
watch pornographic movies, can reasonably and appropriately be deemed by a
jury to constitute `torture, cruel confinement or cruel punishment'. . .
."2g
Likewise, we held that hitting children with a wire coat hanger was "sufficient
to sustain the charges because the children testified to circumstances proving
the nature of the beatings to have been cruel and indiscriminate, and far
different in character from normal parental discipline ." 3o As Professors Lawson
and Fortune point out, however, "[t]he case law is otherwise unhelpful as to the
meaning of the provision . . . .» 31
In the case at hand, M.M . did not testify - and we have been pointed to
no other testimony clearly indicating -- that M.M .'s bruises were a direct result
of Mason's having struck M.M . with a coat hanger or any other similar
instrument . Nor is there any evidence showing that M.M . was restrained and
forced to watch pornographic movies . So whether the conduct at issue
constitutes torture is not readily answered by reference to our existing
precedent.
We, therefore, turn to the dictionary to determine what kind of behavior
constitutes torture, at least for purposes of criminal abuse charges . "Torture"
is defined as "the infliction of intense pain (as from burning, crushing,
wounding) to punish or coerce someone . . . ."32 Indeed, the United States
29
30
828 S.W.2d at 625.
Id.
supra, § 9-6(b) .
31
LAWSON 8, FORTUNE,
32
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (UNABRIDGED)
20
2414 (1993) .
Supreme Court has opined that the "primary concern" of the drafters of the
Eighth Amendment's prohibition on cruel or unusual punishment was to
prohibit torture and similarly barbaric types of punishment . 33 Although no one
definition can cover all the possible methods of torturing someone, we agree
with the Court of Appeals of Michigan's general conclusion that "before a
defendant may be convicted of child torture, it need only be shown that he . . .
inflicted extreme, intense or severe pain or injury upon the victim ."34 Thus,
although the terms are generally used interchangeably, it appears that torture
may require the infliction of greater pain through more barbaric methods than
does cruel punishment.
Although it is a difficult question, which will necessarily have to be
resolved on a case-by-case basis, we are unwilling to say as a matter of law
under the facts of this case that abusing a child in such a manner as to cause
a severe fracture in the child's leg, as well as inflicting multiple bruises and
similar marks all over the child's body, is insufficient to constitute torture.
Although one cannot know for sure what M .M . actually felt since he was too
young to testify, we have no doubt that the diverse injuries M.M . suffered must
logically have caused him to suffer "extreme, intense or severe pain . . . . "35 We
held in a somewhat similar unpublished case that evidence showing multiple
33
34
35
Estelle v. Gamble, 429 U.S. 97, 102 (1976) .
People v. Porterfield, 420 N .W.2d 853, 854 (Mich.Ct.App. 1988) . See also Faust v.
State, 354 So.2d 866, 868 (Fla. 1978) (finding constitutional a statutory definition
of torture as "every act, omission, or neglect whereby unnecessary or unjustifiable
pain or suffering is caused .") (quotation marks omitted) .
Porterfield, 420 N.W .2d at 854 .
21
bruises and abrasions all over the body of a three-year-old child was sufficient
to constitute either torture or cruel punishment .36 There was sufficient
evidence, therefore, for the issue of whether Mason tortured M .M . to be
submitted to a jury.
3. Application of Palpable Error Standard.
After examining the instructions in detail, we agree with Mason that an
error exists by virtue of the inclusion of the cruel confinement language. Since
this error is unpreserved, we must now determine whether it rises to the level
of being a palpable error.
We begin our analysis by acknowledging that erroneous jury instructions
are presumed to be prejudicial .37 And, as previously mentioned, we have
forcefully held that "[a]ny instruction which permits a conviction on the basis
of alternative theories . . . not supported by the evidence runs afoul of the due
process requirement that each juror's verdict be based on a theory of guilt in
which the Commonwealth has proven each and every element beyond a
reasonable doubt." 38
36
37
38
Beasley v. Commonwealth, No. 2001-SC-000539-MR, 2003 WL 22974888, at *6
(Ky. Dec . 18, 2003) (rejecting argument that defendant was entitled to a directed
verdict on criminal abuse charge by first reciting bruises and abrasions found on
the victim and then concluding that "[i]n the present case, D.H . had signs of
physical abuse, literally, all over his body. Indeed, the extent of the mistreatment
of D.H. not only supports a finding that it `shocks one's conscience' but also
supports a finding that it was `heartless and unfeeling .' Accordingly, based on the
testimony of Dr. Burrows and the exhibits, we find that the evidence clearly
supported the jury's finding that the abuse resulted in torture or cruel punishment
to D .H.") . By virtue of his broken leg, M .M.'s injuries appear to be even more
severe than those suffered by the victim in Beasley.
Harp v. Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008) .
Whitmore, 92 S.W.3d at 81 (emphasis added) .
22
We recently clarified the law as to this precise scenario : unpreserved
errors involving superfluous language in jury instructions that would permit a
conviction based upon a method of committing an offense permitted by statute
but not supported by the evidence .39 In Travis, the trial court's PFO
instruction "contain[ed] language describing theories of liability that do not
relate to any evidence presented . . . at trial . . . . [S]uch language was simply
inserted to reflect the various possible theories of statutory liability,
notwithstanding their inapplicability to the instant case." 4o We concluded that
the instructions containing superfluous theories of guilt were error but that the
error was not palpable .41 We reasoned that there was "no real possibility that
jurors followed one of the theories presented by the surplus language and, as a
result, no real possibility that a unanimous verdict was denied ."42
Similarly, in the case at hand, we conclude that there is no "real
possibility" that a juror voted to convict Mason under the cruel confinement
theory when there was no evidence to support that theory, but there was ample
evidence to support the other theories of guilt. So there was no probability that
the result of the action was altered by the addition of the superfluous theories
39
40
41
42
See Travis v. Commonwealth, No. 2008-SC-000811-MR, 2010 WL 5135248 (Ky.
Dec. 16, 2010).
Id. at *5 .
See id. at *6 (majority concluding that error was harmless) . See also id. at *7
(Minton, C.J., concurring in result only and concluding that error was not
palpable) .
Id. at *6.
23
of guilt in the criminal abuse instruction. We conclude, therefore, that the
erroneous criminal abuse instruction fails to constitute palpable error.
B. Penalty Phase Errors Do Not Necessitate Palpable Error Relief.
Although he admits that the issues are unpreserved, Mason raises
several penalty phase arguments. We are concerned about some irregularities
that occurred during the penalty phase, but we conclude that none. of the
unpreserved issues necessitates granting palpable error relief.
The Commonwealth sought to introduce many exhibits in the penalty
phase, including Exhibit 19 - a collection of documents that includes Mason's
purported previous federal felony conviction . No objection was raised. But the
trial court, perhaps inadvertently, did not orally include Exhibit 19 as among
those exhibits admitted into evidence . So that exhibit was never formally
admitted into evidence . The Commonwealth did not attempt to rectify the trial
court's omission of Exhibit 19 from those exhibits admitted into evidence . 43
Mason contends on appeal that the failure to introduce formally Exhibit 19 into
evidence means that there was insufficient evidence to convict him of being a
PFO, so he argues he should have received
a directed verdict .
Of course,
Mason's argument is problematic because his trial counsel failed to move for a
directed verdict.
43
See, e.g., Thompson v. Commonwealth, 147 S .W.3d 22, 40 (Ky. 2004) ("Even when
an objection or motion has been made, the burden continues to rest with the
movant to insist that the trial court render a ruling . . . .") .
24
A PFO conviction, like any other criminal conviction, must be based
upon properly admitted evidence .44 Arguments of counsel are not evidence . 4s
We have held that it is not absolutely necessary to introduce into evidence
certified copies of prior judgments in PFO proceedings if a qualified witness
testifies from the relevant documents with sufficient completeness to prove the
elements of the PFO charge.46 But the Commonwealth presented no live
witnesses in Mason's PFO proceeding.47 Since there was no oral testimony
presented to the jury, the Commonwealth's failure to ensure the admission into
evidence of a document purporting to be a felony judgment from the United
States District Court for the Western District of Kentucky was an error .
Under the unique facts of this case, however, we do not believe Mason is
entitled to palpable error relief. Mason does not contend that he was not
convicted in federal court, as the purported felony judgment contained in
Exhibit 19 shows. Indeed, Mason does not even argue that the judgment
44
45
46
47
See, e.g., Parker v. Commonwealth, 291 S .W.3d 647, 660 (Ky. 2009) ("a jury's
verdict must be based on the evidence actually admitted into evidence . . . .") ;
1 WILLIAM S . COOPER KENTUCKY INSTRUCTIONS TO JURIES (CRIMINAL) § 2 .02 (5th ed.
2006) ("You shall find the Defendant not guilty unless you are satisfied from the
evidence alone and beyond a reasonable doubt that he is guilty.") .
Dixon v. Commonwealth, 263 S .W .3d 583, 593 (Ky. 2008) ("But an attorney's
arguments do not constitute evidence .") .
Commonwealth v. Mixon, 827 S.W.2d 689, 691 (Ky. 1992) ("In conclusion, we hold
that under these circumstances it is not mandatory for certified copies of
judgments of conviction to be admitted into evidence in support of a PFO charge .
It is sufficient for oral testimony based upon documentary evidence to be received
in support of the elements of the charge . In the absence of objection at trial,
failure to admit the documentary evidence will not be reviewed on appeal.') .
Although better practice might be to present live testimony from qualified
witnesses, we reject Mason's argument, unsupported by any citation to authority,
that palpable error occurred when the Commonwealth failed to present live
testimony to obtain a PFO conviction.
25
contained in Exhibit 19 was inadmissible . It is clear that the Commonwealth
sought to introduce Exhibit 19, Mason had no objection whatsoever to the
introduction of that exhibit, and the trial court seemingly intended to introduce
Exhibit 19 into evidence but inadvertently failed to do so . (Exhibit 19 was
included in the record on appeal and was sent back with the jury.) After all,
given the lack of any objection whatsoever by Mason, there would have been no
obvious reason for the trial court to have intentionally failed to grant the
Commonwealth's motion introduce it into evidence . Obviously, the
Commonwealth should have pressed the trial court for an unmistakable ruling
that Exhibit 19 had been formally introduced into evidence . But given : (1) the
undisputed accuracy of the judgment contained in Exhibit 19 ; (2) the lack of
objection to its introduction into evidence ; 48 and (3) the trial court's ostensible
intention to admit it into evidence, we cannot say that the trial court's curious
procedural failure to admit Exhibit 19 into evidence was such an egregious,
unjustifiable mistake as to necessitate palpable error relief in the form of this
Court ordering the trial court to grant a directed verdict, which was never
contemporaneously sought.
In order to adduce sufficient evidence to convict Mason of being a PFO 2,
the Commonwealth was required to show that Mason:
48
In all likelihood, if Mason had moved for a directed verdict based upon a lack of
proof (i. e., the trial court's inexplicable failure to formally introduce Exhibit 19 into
evidence), the Commonwealth would have asked for - and likely would have been
granted - permission to re-open its case-in-chief to again tender Exhibit 19 into
evidence.
26
is more than twenty-one (21) years of age and . . . stands convicted
of a felony after having been convicted of one (1) previous felony.
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; and
(b) That the offender was over the age of eighteen (18) years at the
time the offense was committed; and
(c) That the offender:
1 . Completed service of the sentence imposed on the previous
felony conviction within five (5) years prior to the date of
commission of the felony for which he now stands convicted ;
or
2 . Was on. probation, parole, conditional discharge, conditional
release, furlough, appeal bond, or any other form of legal
release from any of the previous felony convictions at the
time of commission of the felony for which he now stands
convicted; or
3 . Was discharged from probation, parole, conditional
discharge, conditional release, or any other form of legal
release on any of the previous felony convictions within
five (5) years prior to the date of commission of the felony for
which he now stands convicted; or
4 . Was in custody from the previous felony conviction at the
time of commission of the felony for which he now stands
convicted; or
5 . Had escaped from custody while serving any of the previous
felony convictions at the time of commission of the felony for
which he now stands convicted.[491
The trial court instructed the jury on all five paths to reach PF4 2
described in KRS 532 .080(2)(c) . The Commonwealth seems to concede that the
49
KRS 532 .080(2) .
27
proof did not support all five methodologies. Instead, the Commonwealth only
states that Exhibit 19 conclusively showed that Mason was released from
supervision within five years of committing the abuse charge in question,
thereby satisfying KRS 532 .080(2)(c)(3) . So as with the guilt phase
instructions, the PFO instruction created an error resulting from the trial
court's inclusion of methods of committing the PFO offense that were not
supported by the evidence.
But, as with the guilt phase instruction, we conclude that the
PFO instruction's inclusion of superfluous methods of committing a
PFO offense is not a palpable error because there was "no real possibility that
jurors followed one of the theories presented by the surplus language and, as a
result, no real possibility that a unanimous verdict was denied."S0 The
question becomes, therefore, whether there was sufficient proof that Mason
was a PFO under the theory advanced by the Commonwealth: Mason's having
been released from supervision within five years of committing the abuse
charge in question, thereby satisfying KRS 532 .080(2)(c)(3) .51 We conclude that
there was sufficient proof.
Part of Exhibit 19 was a supervision summary that showed that Mason
was released from federal supervision within five years of the commission of the
50
51
Travis, 2010 WL 5135248 at *6.
Campbell, 564 S.W.2d at 530 ("A motion for a directed verdict of acquittal should
only be made (or granted) when the defendant is entitled to a complete acquittal[,
i.e] ., when, looking at the evidence as a whole, it would be clearly unreasonable for
a jury to find the defendant guilty, under any possible theory, of any of the crimes
charged in the indictment or of any lesser included offenses .") (emphasis added) .
28
abuse of M.M . As stated previously, there was no contemporaneous objection
to Exhibit 19, meaning that we have no cause to dispute the accuracy of that
supervision report. So there was proof that Mason had been released from
federal supervision within five years of committing the abuse charge in
question -- thereby satisfying KRS 532.080(2(c)(3) . Likewise, a portion of
Exhibit 19, combined with guilt phase testimony of a social worker, provides
sufficient evidence that Mason was over twenty-one years old when the abuse
conviction at hand occurred and was over eighteen years old when the federal
felony offense was committed .
Mason raises a perfunctory argument that some information contained in
Exhibit 19 runs afoul of the hearsay doctrine set forth in Crawford v.
Washington . 52 The root of this argument is, again, Mason's contention that the
Commonwealth failed to present live testimony during the penalty phase .
Again, however, this issue is unpreserved because Mason's counsel lodged no
objection at trial. If Mason believed live witnesses were necessary to explain or
contradict portions of Exhibit 19, he could have called the witnesses himself or,
at a minimum, he could have objected to the Commonwealth's failure to
present witnesses . We need not engage in an extended review of whether
portions of Exhibit 19 may contain inadmissible hearsay because we conclude
that any hearsay-based error was not so egregious and damaging to the
fundamental fairness of Mason's trial as to rise to the level of being a palpable
error, especially since Mason, despite having had more than ample time to do
52
541 U.S . 36 (2004) .
29
so, still has not pointed to any specific inaccuracies in the supervision report or
any other factual recitation contained in Exhibit 19 .53
Next, we reject Mason's contention - unsupported by any citation to
authority - that his federal sentence of twelve months and one day of
imprisonment is insufficient to qualify as a prior felony conviction under
KRS 532 .080(2)(a), which requires a previous felony conviction to have involved
the imposition of "a sentence to a term of imprisonment of one (1) year or
more . . . ." Obviously, a year is twelve months in duration. So a reasonable
juror could have concluded that Mason's federal sentence of twelve months and
one day of incarceration was
a sentence
of one year or more, as required by
KRS 532 .080(2)(a) .
In short, we conclude that there was sufficient proof whereby a
reasonable juror could have found Mason guilty of being a PFO 2 .
Consequently, we decline to hold that palpable error occurred when the trial
court failed to grant a directed verdict on its own motion while Mason remained
mute.
We also decline to find that the Commonwealth's closing argument
constitutes palpable error . Again, Mason failed to object contemporaneously,
53
We generally agree with Mason that any extraneous materials should have been
redacted from Exhibit 19, such as charges for which Mason was not convicted .
Mixon, 827 S. W.2d at 690-91 ("There are sound reasons for not offering into
evidence complete written records as to prior convictions but rather to permit the
jury to hear only relevant testimony extracted therefrom. Frequently there are
additional charges which were joined but on which the defendant was acquitted .
`Laundering' or `sanitizing' is necessary to prevent unnecessary prejudice to the
defendant.") . But Mason raised no objection whatsoever below to the lack of
redaction, and we conclude that no palpable error resulted from the lack of
redaction of the extraneous portions of Exhibit 19.
30
rending this issue unpreserved . We have considered all of Mason's sundry
attacks on the Commonwealth's closing argument but have concluded that no
portion of the argument constitutes palpable error.
Finally, we decline Mason's request for this Court to order the
Department of Corrections to classify him as a non-violent offender. It is
uncontested that at trial the Commonwealth urged the jury to recommend that
Mason serve the maximum permissible sentence (twenty years' imprisonment
by virtue of the PFO conviction) and that Mason would be eligible for parole
after serving four years of that sentence (twenty percent of the sentence) . The
jury recommended the requested twenty-year sentence, and the trial court
entered a final judgment in accordance with that recommendation . Relying
upon his inmate resident record card,s4 Mason contends that the Department
of Corrections has classified him as a violent offender required to serve eightyfive percent of his sentence before becoming eligible for parole . Mason
contends that the Department of Corrections' classification of him is erroneous
and contrary to what the jury was told at trial . Mason contends, therefore,
that he should either receive a new penalty phase or that this Court should
order the Department of Corrections to reclassify his parole eligibility date. We
disagree.
54
Mason has attached his resident record card as an exhibit to his brief. The
Commonwealth has not raised any objection to Mason's usage of that resident
record card or to its accuracy.
31
KRS 439 .3401 governs which offenders shall be deemed violent offenders.
Subsection (1)(i) of that statute provides that persons who commit criminal
abuse in the first degree are violent offenders. So Mason is a violent offender.
Violent offenders are generally subjected to more onerous parole
eligibility requirements . As it pertains to this case, KRS 439 .3401(3) provides
that a violent offender "who has been convicted of a capital offense or Class A
felony with a sentence of a term of years or Class B felony who is a violent
offender shall not be released on probation or parole until he has served at
least eighty-five percent (85%) of the sentence imposed." First-degree criminal
abuse is statutorily designated as a Class C felony.5$ So it appears from the
limited record before us that Mason is not statutorily subjected to the rule
requiring him to serve eighty-five percent of his sentence before becoming
eligible for parole, even though Mason is statutorily classified as a violent
offender by virtue of his having been convicted of criminal abuse in the first
degree .$6
We do not know the reasoning underlying the General Assembly's
peculiar decision to require some, but not all, violent offenders to be subjected
to the more stringent parole eligibility requirements contained in
KRS 439 .3401 . But the question before us in this case is not the wisdom of
the General Assembly's classification and treatment of violent offenders for
55
56
See KRS 508.100(2).
Even the Commonwealth admits in its responsive brief that "the correct interpretation of the statute [KRS 439.3401] would not make [Mason] subject to the 85%
rule."
32
parole eligibility purposes ; instead, the question is whether the Department of
Corrections' ostensibly improper imposition of the eighty-five percent rule upon.
Mason entitles Mason to relief in this direct appeal.
It is important to focus upon the fact that there appears to have been no
error committed by the Commonwealth or the trial court during Mason's trial
on this issue. After all, both parties to this appeal agreed below and agree on
appeal that Mason should not be subjected to the eighty-five percent rule,
Because there was no discernible error committed in the penalty phase of
Mason's trial, we decline Mason's invitation to order a new penalty phase.
Instead, the apparent error was committed postjudgment by the Department
of Corrections, which is not a party to this appeal. .
Although Mason contends that he should not be compelled to file a
separate action in order to receive relief from this potential mistake, it is
beyond dispute that a court generally should not issue an opinion or judgment
against an entity that is not a party to the action or is not otherwise properly
before the court . . We decline, therefore, to order the Department of
Corrections -- which has not been made a party to this appeal and is not
properly before us to either defend its action or to confess error-to take any
affirmative action with regard to Mason's offender classification or parole
eligibility. Mason is free to file a separate action against the Department of
Corrections, such as a declaratory judgment action, seeking to have his parole
eligibility recalculated .$? We trust that such an action would prove to be
successful if Mason were to demonstrate satisfactorily that the Department of
Corrections had materially erred in calculating his parole eligibility date.
III. CONCLUSION .
For the foregoing reasons, Bernard Mason's criminal abuse and PFO 2
convictions are affirmed.
All sitting . All concur.
57
See, e.g., Hoskins v. Commonwealth, 158 S .W.3d 214, 217 (Ky.App. 2005) ("We
agree with the Commonwealth that Hoskins's attack on his violent-offender
classification is not procedurally correct. As noted by the Commonwealth, it
appears that the correct path for Hoskins to have taken was to proceed against the
Department of Corrections with an original action before the Franklin Circuit
Court.") .
34
COUNSEL FOR APPELLANT:
V. Gene Lewter
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
William Bryan Jones
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601
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