JOHNATHAN HARRIS V. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED : MARCH 24, 2011
TO BE PUBLISHED
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ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
NOS. 07-CR-003307 AND 09-CR-000005
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE VENTERS
Appellant, Johnathan Harris, appeals as a matter of right' from a
judgment of the Jefferson Circuit Court convicting him on numerous charges,
including a second-degree persistent felony offender (PFO) enhancement . In
accordance with the jury's recommendation, Harris was sentenced to a total of
thirty years' imprisonment for the crimes .
Harris now raises two issues : (1) that the judgment against him is void
because, under the circumstances present here, the appointment of a retired
judge from the senior status program to preside over his trial violated Kentucky
Constitutional provisions for elected or gubernatorially-appointed judges; and
(2) that his conviction as a second-degree PFO was based upon an incorrect
1 Ky. Const . § 110 .
interpretation of KRS 532 .080(2) or, alternatively, that KRS 532 .080(2) is
unconstitutional . Finding no merit in these arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 11, 2007, the Jefferson County Grand Jury indicted Harris
on charges of kidnapping, first-degree rape, first-degree sodomy, second-degree
assault, first-degree sexual abuse, first-degree wanton endangerment, and
tampering with physical evidence . The crimes were alleged to have occurred
late on the evening of October 7, 2007 and/or early on the morning of October
8, 2007, when Harris was twenty-years old . Some fifteen months later, in
January 2009, he was indicted for second-degree PFO in conjunction with the
same crimes charged in the earlier indictment . A recitation of the factual
details about Harris's crimes is unnecessary because they have no relevance to
the issues considered in this appeal .
Following a jury trial, Harris was convicted of kidnapping, first-degree
rape, first-degree sodomy, first-degree sexual abuse, first-degree wanton
endangerment, and of being a second-degree PFO . He was acquitted of the
second-degree assault and tampering charges. Harris's post-trial motion for
judgment notwithstanding the verdict or a new trial was denied . This appeal
I. A DEFENDANT HAS NO CONSTITUTIONAL RIGHT TO HAVE AN ELECTED
OR GUBERNATORIALLY-APPOINTED JUDGE PRESIDING OVER HIS CASE
Harris first contends that the judgment rendered against him is void
because a retired Senior Judge, Geoffrey P. Morris, presided over the trial .
Morris's service on the case as a special judge was by assignment of the Chief
Justice, a process which Harris argues violated his right under the Kentucky
Constitution to be tried by a duly-elected or a gubernatorially-appointed circuit
The factual basis for Harris's claim may be fairly summarized as follows .
After indictment, the case was assigned to Judge Morris, then serving as the
duly-elected judge of Division Eleven of the Jefferson Circuit Court. In early
2009, Judge Morris retired from his seat on the Jefferson Circuit Court bench
and entered into the Senior Judge program . Because of impending changes in
the Senior Judge program, some twenty-two other judges across Kentucky also
retired . With additional vacancies created by other causes, by mid-March of
2009, a total of twenty-seven judgeships were vacant, an exceptionally high
number. Pursuant to the Kentucky Constitution,2 a vacant judgeship is filled
by a nomination process which begins with the Chief Justice convening a
judicial nominating commission to consider eligible candidates to recommend
for the Governor's consideration, and culminates in the Governor's
appointment of a replacement judge from a three-candidate list submitted by
the commission .
Confronted with twenty-seven vacant judgeships and a large influx of
recently-retired judges into the Senior Judge program, and with budget
considerations in mind, the Chief Justice, and the Governor decided to briefly
delay the nomination and appointment process, and temporarily assign the
2 Ky. Const. § 118 .
newly-retired Senior Judges to their former seats for a few additional months .
Therefore, pursuant to KRS 26A.020,3 the recently-retired Judge Morris was
assigned by the Chief Justice to serve as a special judge presiding over the
same Jefferson Circuit Court Division Eleven docket from which he had retired .
It was in that status that Judge Morris presided over Harris's trial in July
Harris argues that the delay of the nomination process and the Chief
Justice's assignment of Senior Judge Morris to the bench he had just vacated
violated Sections 117 and 118 of the Kentucky Constitution, which Harris
contends mandate an elected judiciary subject only to temporary appointments
by the Governor until the next general election . Harris further complains that,
as a retired judge assigned by the Chief Justice to preside over his case, Morris
"was not the kind of judge envisioned by Section 7" of the Kentucky
3 KRS 26A .020(l) : When, from any cause, a judge of any Circuit or District Court fails
to attend, or being in attendance cannot properly preside in an action pending in
the court, or if a vacancy occurs or exists in the office of circuit or district judge, the
circuit clerk shall at once certify the facts to the Chief Justice who shall
immediately designate a regular or retired justice or judge of the Court of Justice as
special judge . If either party files with the circuit clerk his affidavit that the judge
will not afford him a fair and impartial trial, or will not impartially decide an
application for a change of venue, the circuit clerk shall at once certify the facts to
the Chief Justice who shall immediately review the facts and determine whether to
designate a regular or retired justice or judge of the Court of Justice as special
judge. Any special judge so selected shall have all the powers and responsibilities
of a regular judge of the court.
4 Ky. Const. § 7, "The ancient mode of trial by jury shall be held sacred, and the right
thereof remain inviolate, subject to such modifications as may be authorized by this
Section 117 of the Kentucky Constitution provides that "Justices of the
Supreme Court and judges of the Court of Appeals, Circuit and District Court
shall be elected from their respective districts or circuits on a nonpartisan
basis as provided by law." Under this provision, as Harris suggests, our
judiciary is to be chosen by election by the citizens of the relevant district or
circuit . This fundamental principle is not at issue . However, because of death,
retirement, illness, or other occurrence in the midst of an elected term of office,
vacancies on the bench occasionally arise. Section 118(1) of the Kentucky
Constitution represents the contemplation of this inevitability and provides
A vacancy in the office of a justice of the Supreme Court, or of a
judge of the Court of Appeals, circuit or district court which under
Section 152 of this Constitution is to be filled by appointment by
the Governor shall be filled by the Governor from a list of three
names presented to him by the appropriate judicial nominating
commission . If the Governor fails to make an appointment from
the list within sixty days from the date it is presented to him, the
appointment shall be made from the same list by the chief justice
of the Supreme Court.
Moreover, our drafters of the Judicial Article of our Constitution also
recognized that justice could not always await the process established in
Section 118(1), and that a prompt interim arrangement was required to assure
the availability of a judge when needed. To that end, Section 110(5)(b) of the
Kentucky Constitution, provides as follows :
The Chief Justice of the Commonwealth shall be the executive
head of the Court of Justice and he shall appoint such
administrative assistants as he deems necessary. He shall assign
temporarily any justice or judge of the Commonwealth, active or
retired, to sit in any court other than the Supreme Court when he
deems such assignment necessary for the prompt disposition of
causes. The Chief Justice shall submit the budget for the Court of
Justice and perform all other necessary administrative functions
relating to the court.
(Emphasis added) . Thus, Harris's contention that our Constitution affords him
a right to have an elected or gubernatorially-appointed judge preside at his trial
is plainly refuted by Section 110(5)(b) .s
At the time of his assignment as a special judge, Morris was a retired
judge qualified for service in the vacant judgeship, and the Constitution
specifically gives the Chief Justice the authority to have made the assignment
as he deems necessary. As such, Senior Judge Morris was constitutionally
empowered to preside over the case at the time of Harris's trial.
We note further that Sections 117 and 118 of the Kentucky Constitution,
and the rules of this Court which establish the process of filling judicial
vacancies, impose no time limitations for the commencement or completion of
the process to fill a judicial vacancy . See SCR 6.000, et. seq. The time taken to
fill the Jefferson Circuit Court, Division Eleven vacancy was not unreasonable.6
Harris has no constitutional right to a judge selected under Sections 117 or
118 of the Constitution, as opposed to a judge assigned by the Chief Justice
5 We note also that, even if Section 7 could be construed to require jury trials before
an elected or gubernatorially-appointed judge, the provision itself subordinates the
right to "such modifications [of the right]as may be authorized by this Constitution,"
a clear authorization of the Chief Justice's powers under Section 110(5)(b) .
6 In September 2009, the Governor appointed Judge Brian C . Edwards to the Division
Eleven seat. In the November, 2010 general election, Judge Edwards was elected to
fill the remainder of the term.
under Section 110, and therefore the time taken to permanently fill the
vacancy left by Judge Morris's retirement affords him no grounds for relief.
Having found no deficiency in Judge Morris's constitutional authority to
preside over the trial proceedings, we need not address the Commonwealth's
invocation of the defacto officer doctrine.? We note also Harris failed to timely
raise the issue by objecting at or before the trial to Judge Morris's continuing
role in the case. Jacobs v. Commonwealth, 947 S .W .2d 416, 418 (Ky . App.
1997) ("Since at least 1860 it has been the rule that objection to one acting as
special judge cannot be made for the first time on appeal.") (citing Vandever v.
Vandever, 60 Ky. (3 Met.) 137, 138 (1860)) .
For the foregoing reasons we conclude that Judge Morris properly
presided over the trial proceedings in this case .
II . THE PFO CONVICTION WAS PROPER
Harris next contends that his conviction as a second-degree persistent
felony offender was based upon an incorrect interpretation of KRS 532 .080(2)
or, alternatively, that KRS 532 .080(2) is unconstitutional. These contentions
7 In Rice v. Commonwealth, 66 Ky. (3 Bush) 14 (1867), a defendant in a criminal
matter and his surety challenged the validity of a bail bond "because the police
judge [before whom the bond was executed] had been qualified before a notary
public who had no legal authority to administer official oaths ." Kentucky's then
highest court rejected the challenge, holding:
[W]hen a man is exercising and discharging the general duties of an
office, claiming right thereto under a commission or appointment, he is
an officer de facto; and generally, if not universally, his acts are good as
to third parties, however irregular his appointment or qualification[ .] . . .
We do not say that, even as the police judge was acting under a regular
commission and appointment, that this oath would be void; but if it was
legally invalid as to himself, his acts as to third parties, are binding .
1d. at 17 (emphasis added) ; See also Moorman v. Commonwealth, --- S.W .3d ---,
2010 WL 4679485 (Ky. 2010) .
rest upon the fact that in defining PFO status, KRS 532 .080(2) looks to the
defendant's age at the time of conviction, rather than his age at the time the
underlying crime is committed . Harris was twenty-years-old when the alleged
crimes were committed on October 7-8, 2007, and when he was indicted three
days later. However, he was twenty-one years old in January 2009, when he
was indicted for second-degree PFO, and subsequently was convicted. We
perceive no error in that conviction for the following reasons .
1. Statutory Interpretation Considerations
KRS 532 .080(2) provides, as relevant to our review, as follows: "A
persistent felony offender in the second 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 one (1) previous felony." (emphasis added) . In Hayes v.
Commonwealth, 660 S .W.2d 5 (Ky. 1983), this Court determined that by the
plain wording of KRS 532 .080(2), a defendant is eligible for a PFO conviction if
he is at least twenty-one years old at the time of his conviction, even though he
may have been less than twenty-one at the time of the underlying crimes.
Being only twenty-years-old when the crime was committed, Harris was
not at that time subject to being convicted as a PFO . However, when he turned
twenty-one he became PFO eligible . Harris contends that it is fundamentally
unfair and absurd that a defendant is subject to conviction as a second-degree
PFO even though he was less than twenty-one at the time the crimes were
committed . He urges that we overrule Hayes and reinterpret KRS 532 .080(2)
to provide that one may not be subjected to a PFO sentencing enhancement if
he was under twenty-one years of age when the underlying crime was
In Hayes, the defendant committed the offense of receiving stolen
property when he was twenty-years-old, and turned twenty-one twelve days
later. He was thereafter indicted for the underlying crime and as a seconddegree PFO . Hayes addressed the issue as follows :
The difficulty [with Hayes's argument] is that the language of the
statute is plain and unambiguous .
A . person cannot be a
persistent felony offender until he stands convicted of a second
felony, and the statute provides that he is a persistent felony
offender if at that time he is more than 21 years old. It makes no
mention of age at the time of the commission of the second felony.
[Hayes] would have us rewrite the statute to read in effect that a
person is a persistent felony offender in the 2nd degree who stands
convicted of a felony committed after he became 21 years of age if
he had been convicted previously of a felony .
We cannot take such liberties in construing a statute when the
words used in the statute are not ambiguous, and the construction
of the plain meaning of the words as written in the act does not
reduce it to an absurdity.
The General Assembly may have simply intended that no one
under the age of 21 years at the time of trial should be weighed
down with an enhanced sentence as a persistent felony offender. If
it is the intention of the legislature that no one who is less than 21
years of age at the time of the commission of a second felony
should be proceeded against as a persistent felony offender, that
intention should be expressed by the legislature in the statute .
Hayes, 660 S .W.2d at 6.
By its plain wording, KRS 532 .080(2) directs that the defendant's age for
PFO purposes be examined at the time of his adjudication as a second-degree
PFO ("is more than twenty-one") . It does not say "was more than twenty-one"
at some former point in time (for instance, when the crime was committed) .
Moreover, KRS 532 .080(2)(b) provides the additional criterion to PFO-eligibility
"[t]hat the offender was over the age of eighteen (18) years at the time the [prior
felony] offense was committed[ .]" (emphasis added) . By specifically requiring
that the defendant be over eighteen at the time of the prior felony, but not
specifically placing the same requirement as to the present felony, and instead
avoiding that specific language, the legislature drew a clear distinction between
the defendant's age at the time the crime was committed and his age at the
time of sentencing . As such, we are persuaded that Hayes properly interpreted
the statutory language.
In the twenty-seven years since Hayes was rendered, KRS 532 .080 has
been amended and reenacted in new form on more than one occasion . See,
eg., 2006 Ky. Acts c 182, § 45; 1998 Ky. Acts c 606, § 76 ; and 1996 Ky. Acts c
247, § 1 . Nevertheless, in all that time, the statutory language under
consideration remains undisturbed . Because the General Assembly has not
acted upon the matter, we presume that the legislature agrees with, or at least
has adopted, our interpretation . "[T]he failure of the legislature to change a
known judicial interpretation of a statute [is] extremely persuasive evidence of
the true legislative intent. There is a strong implication that the legislature
agrees with a prior court interpretation when it does not amend the statute
Rye v. Weasel, 934 S .W.2d 257, 262 (Ky. 1996) .
Nevertheless, Harris urges us to adopt an alternate interpretation of the
statutory language, as given in Justice Leibson's dissenting opinion in Hayes.
We decline the invitation because doing so would require this Court to re-define
the elements that establish a second-degree PFO enhancement of a felony
offense . The power to define crimes and assign their penalties belongs to the
legislature, not the judiciary. See McClanahan v. Commonwealth, 308 S.W .3d
694, 700 (Ky. 2010) . Thus, as we stated. in Hayes, any change in our
interpretation of KRS 532 .080 must come as a result of legislative action.
Finally, we note that it is unlikely that random circumstances will play
the inequitable role that Harris predicts as a result of our Hayes interpretation,
whereby defendants will be unjustly persecuted because of this rule . A short
delay in the trial because of weather, illness, and so on, is unlikely to result in
a PFO conviction due to a defendant's intervening twenty-first birthday.
Moreover, we trust that our prosecutorial bar will not take unjust advantage of
such random and fortuitous delays to seek PFO enhancements and bear the
inherent ethical questions associated with that . Further, in the event of a
deliberate delay by the Commonwealth in order to qualify the defendant for
PFO eligibility, due process concerns such as those expressed in Barker v.
Wingo, 407 U.S . 514 (1972), in the speedy trial context, would no doubt shortcircuit such efforts. The United States Supreme Court has "indicated on
previous occasions that it is improper for the prosecution intentionally to delay
`to gain some tactical advantage over (defendants) or to harass them ."' Id at
531 fn 32 (citing United States v. Marion, 404 U.S. 307, 325 (1971) ; Pollard v.
United States, 352 U.S . 354, 361 (1957) :")
2. Constitutional Considerations
As an alternative to overruling Haves by adopting a new interpretation of
the statute, Harris asks that we declare KRS 532 .080(2) unconstitutional as in
violation of due process and Section 2 of the Kentucky Constitution . Harris
makes clear that his challenge is a facial challenge, stating "[t]he Court must
either change its reading of KRS 532 .080 or must declare the statute
unconstitutional." We begin by noting that this issue is not properly preserved.
"When the constitutionality of an act of the General Assembly affecting the
public interest is drawn into question in any action, the movant shall serve a
copy of the pleading, motion or other paper first raising the challenge upon the
Attorney General ." CR 24 .03. We have repeatedly held the notice provisions
are mandatory . Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky. 2008).
Harris does not suggest that he complied with this mandatory requirement.
Nevertheless, we will briefly address the merits of this important argument .
It is a well established principle that "[a] facial challenge to a legislative
Act is . . . the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under which the
Act would be valid." Rust v. Sullivan, 500 U.S . 173, 183 (1991) . "[T]he
violation of the Constitution must be clear, complete and unmistakable in
order to find the law unconstitutional ." Kentucky Industrial Utility Customers,
Inc. v. Kentucky Utilities Co., 983 S.W .2d 493, 499 (Ky. 1998) . Thus, Harris's
facial, challenge must fail because, even under his theory, KRS 532 .080 would
not be unconstitutional in the case of a defendant who was over twenty-one at
the time he committed the underlying crime . Thus the statute is constitutional
under that set of circumstances, and cannot withstand a facial constitutional
or, under the circumstances of this case, does an as-applied
constitutional challenge succeed. First, the statute was applied in accordance
with this Court's interpretation of the provision in Hayes, which, as explained
above, was determined correctly. Second, Harris's ability to mount an asapplied challenge to the statute is impeded by his failure to ask the trial court
for an evidentiary hearing and the resulting findings of fact to establish any
unfair pretrial delay that would render this application of the statute to be
unconstitutional . Without such specifics, the argument Harris articulates is,
in substance, not so much a challenge to constitutionality of the statute as it
applied to him, but more of an expression of his belief that looking at the
defendant's age at the time of sentencing as opposed to the time of the
commission of the crime, is bad policy. So, again, we make clear:
Determinations about the nature and purposes of punishment for
criminal acts implicate difficult and enduring questions respecting
the sanctity of the individual, the nature of law, and the relation
between law and the social order. . . . The efficacy of any sentencing
system cannot be assessed absent agreement on the purposes and
objectives of the penal system. And the responsibility for making
these fundamental choices and implementing them lies with the
Harmelin v. Michigan, 501 U.S . 957, 998 (1991) (citation omitted) (emphasis
added) . The legislature has made clear its policy with respect to the conditions
that may qualify a convicted felon for the enhancement of a sentence as a
persistent felony offender. It is not within the province of the Court to amend
In summary, KRS 532 .080(2) is not facially unconstitutional because of
its focus upon the age of the defendant at the time of sentencing rather than at
the time of the commission of the crime ; nor was the provision applied
unconstitutionally in the present circumstances .
For the foregoing reasons, the judgment of the Jefferson Circuit Court is
All sitting. All concur.
COUNSEL FOR APPELLANT:
Daniel T. Goyette
Louisville Metro Public Defender
James David Niehaus
Deputy Appellate Defender
Office of the Louisville Metro Public Defender
200 Advocacy Plaza
719 West Jefferson Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE :
Jeffrey Allan Cross
Assistant Attorney General
Criminal Appellate Division
Attorney General's Office
1024 Capital Center Drive
Frankfort, Kentucky 40601