Garrison v. Commonwealth of Kentucky
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Appellant appealed his maximum sentence of twenty years imprisonment for the crimes of second-degree robbery and tampering with physical evidence as a second-degree persistent felony offender. At issue was whether the trial court erroneously admitted evidence of prior parole violations during the sentencing phase. The court affirmed the judgment and held that trial court properly admitted the parole violations under KRE 404(b) where they were offered for the purpose of truth-in sentencing. The court also held that appellant had inherent knowledge, constructive notice, that his prior acts could be used against him and therefore, no further specific notice was required.
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RENDERED : MAY 19, 2011
TO BE PUBLISHED
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2010-SC-000039-MR
ANTHONY WAYNE GARRISON
V
APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR ., JUDGE
NO . 09-CR-00165
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING
Appellant, Anthony Wayne Garrison, appeals his maximum sentence of
twenty years for the crimes of second-degree robbery and tampering with
physical evidence as a second-degree persistent felony offender (PFO), claiming
the trial court erroneously admitted evidence of prior parole violations during
the sentencing phase . Finding no error, we affirm .
I. Background
Appellant robbed a Lexington, Kentucky bank in 2008, passing a note to
the teller that he had a gun, and leaving with $1,283 in cash . Later that day
he was found disposing of the money in a motel bathroom toilet and arrested .
Following a jury trial in Fayette Circuit Court, Appellant was convicted of
second-degree robbery and tampering with physical evidence . During the
penalty phase, the Commonwealth introduced, in addition to prior criminal
offenses committed by Appellant, three prior instances where he had violated
his parole . After hearing about these violations as well as other testimony
regarding sentencing, the jury recommended a ten-year sentence for robbery,
enhanced to eighteen by Appellant's being a second-degree PFO, and three
years for tampering, enhanced to eight. The jury recommended that four years
of the tampering sentence run consecutively with the robbery conviction, and
four years run concurrently to it, for a combined sentence of 22 years . The
trial court accepted the jury's recommendation, but capped the combined
sentence at twenty years as required by KRS 532 .110.
As a matter of right, Ky . Const. § 110(2)(b), Appellant appeals to this
Court, asking for reversal of the judgment below and remand for re-sentencing.
II. Analysis
Appellant challenges the introduction of his prior parole violations during
the penalty phase of his trial. He presents two arguments to support his
contention . First, he argues that such violations are not listed among the
factors to be considered by the jury in Kentucky's truth-in-sentencing statute
and were, therefore, irrelevant and inadmissible . Second, he argues that even
if these violations were relevant to sentencing, their introduction was not
preceded by adequate notice under KRE 404(c) .
A. Relevance
Kentucky's truth-in-sentencing scheme for felony convictions is set forth
in KRS 532 .055 . Under KRS 532.055(2)(a),
Evidence may be offered by the Commonwealth relevant to
sentencing including:
l . Minimum parole eligibility, prior convictions of the defendant,
both felony and misdemeanor;
2 . The nature of prior offenses for which he was convicted ;
3. The date of the commission, date of sentencing, and date of
release from confinement or supervision from all prior offenses ;
4 . The maximum expiration of sentence as determined by the
division of probation and parole for all such current and prior
offenses ;
5. The defendant's status if on probation, parole, conditional
discharge, or any other form of legal release ;
6 . Juvenile court records of adjudications of guilt of a child for an
offense that would be a felony if committed by an adult. Subject to
the Kentucky Rules of Evidence, these records shall be admissible
in court at any time the child is tried as an adult, or after the child
becomes an adult, at any subsequent criminal trial relating to that
same person. Juvenile court records made available pursuant to
this section may be used for impeachment purposes during a
criminal trial and may be used during the sentencing phase of a
criminal trial; however, the fact that a juvenile has been
adjudicated delinquent of an offense that would be a felony if the
child had been an adult shall not be used in finding the child to be
a persistent felony offender based upon that adjudication . Release
of the child's treatment, medical, mental, or psychological records
is prohibited unless presented as evidence in Circuit Court.
Release of any records resulting from the child's prior abuse and
neglect under Title IV-E 1 or Title IV-B2 of the federal Social
Security Act is also prohibited ; and
7 . The impact of the crime upon the victim or victims, as defined
in KRS 421 .500, including a description of the nature and extent of
any physical, psychological, or financial harm suffered by the
victim or victims
Prior parole violations by the defendant are not among these seven
categories of evidence relevant to sentencing . Thus, if this were an exhaustive
list, the court would have erred in admitting testimony about Appellant's prior
parole violations.
However, it is settled that this list is "illustrative rather than exhaustive ."
Cornelison v. Commonwealth, 990 S.W .2d 609, 610 (Ky . 1999) . These seven
categories are examples of what type of evidence might be relevant to
sentencing, but their enumeration does not exclude other possibly relevant
evidence . The statutory language "[e]vidence . . . relevant to sentencing
including," which introduces the seven categories, demonstrates that the list is
inclusionary and illustrative, and thus non-exhaustive .
This does not mean that a court is free to admit any evidence in
sentencing. It should be guided by the canon of construction ejusdem genet-is
("of the same kind or class") to only allow evidence similarly and equally
"relevant to sentencing" as those types of.evidence the statute explicitly
mentions . In Cornelison, this Court upheld the admission of evidence of
potential good time credit to aid in the jury's determination of sentencing. The
Court reasoned that such evidence was similarly and equally valuable to the
jury in sentencing as minimum parole eligibility, listed in the first enumerated
category:
The evidence with respect to potential good time credit is no less
relevant nor more speculative than evidence with respect to parole
eligibility. Neither constitutes a guarantee of a reduction of the
sentence; but both potentially affect the actual duration of a period
of imprisonment imposed by the jury against the defendant . There
was no error in admitting this evidence at trial .
Id. at 611 .
Just as good time credit was found to be in the same class of things
explicitly included under the statute, so too are parole violations . A jury may
be similarly and equally influenced by a defendant's prior parole violations as it
4
would be by a defendant's prior offenses (category 2) or his current parole
status (category 5) .
Because, under KRS 532.055, parole violations are relevant to
sentencing, KRE 404(b) poses no bar to their admissibility . While parole
violations, or any other prior bad acts, are never admissible "to prove the
character of a person in order to show action in conformity therewith," they are
allowed under KRE 404(b) where they are "offered for some other purpose ."
Here, that purpose is truth-in-sentencing. That guilt had already been
established when sentencing begins underscores that the parole violations were
"offered for some other purpose ."
B. Notice
Notwithstanding their general admissibility, Appellant argues that the
prior parole violations should have been excluded because of the
Commonwealth's failure to comply with the notice provision of KRE 404(c) .
Appellant is correct that ordinarily the Commonwealth must give notice
of prior bad acts it plans to introduce . However, the precise language of KRE
404(c) is that "if the prosecution intends to introduce evidence pursuant to
subdivision (b) of this rule as a part of its case in chief, it shall give reasonable
pretrial notice to the defendant of its intention to offer such evidence ."
(Emphasis added .) The sentencing phase of trial is not part of the
Commonwealth's "case in chief," which this Court reads to mean the main case
during the guilt phase where it bears the standard burden of proving a
defendant guilty beyond a reasonable doubt. See Williams v. State, 933 S .W.2d
662, 666 (Tex . App. 1996). Thus, KRE 404(c) is not applicable to prior acts
introduced at the sentencing phase .
This distinction comports with common sense because, during the
sentencing phase, unlike the guilt phase, admission of prior acts is the norm
rather than the exception . Consequently, a defendant has inherent
knowledge-constructive notice--that his prior acts may be used against him .
No further specific notice is required. This Court therefore concludes that the
trial court properly admitted Appellant's prior parole violations at sentencing.
III. Conclusion
For the aforementioned reasons, the judgment of the Fayette Circuit
Court is affirmed .
Cunningham, Schroder and Scott, JJ ., concur . Abramson, J ., joined by
Minton, C .J ., and Venters, J., concur but would state that the procedure
employed by the Commonwealth's Attorney of reading into the record the
defendant's prior record is acceptable if the defendant stipulates on the record
to this information; absent a stipulation, the prosecutor is essentially serving
as a witness by offering evidence for the jury's consideration, a practice that
implicates Rule 3.7 of the Kentucky Rules of Professional Conduct .
COUNSEL FOR APPELLANT :
Shelly R. Fears
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601-1133
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
John Paul Varo
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Suite 200
Frankfort, Kentucky 40601
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