Bennington v. Commonwealth, 09-SC-521 (published):
Appellant was indicted for first degree sodomy allegedly occurring in 1974. However the first degree sodomy statute did not go into effect until January 1, 1975. Nevertheless, Appellant was convicted of first degree sodomy. In the penalty phase, however, the trial court instructed the jury on a penalty range of 1 to 10 years, which corresponded to the penalty range of the closest crime to first degree sodomy existing in 1974, indecent or immoral practices with another, as opposed to the Class A penalty range for first degree sodomy. There was no objection to this. While the Court finds this was a technical error, "mere technical error does not necessarily require reversal, especially where the error was not preserved for appellate review and thus only results in reversal if it is palpable and prejudicial." There was no palpable error because the conduct was criminalized in 1974, and there is no probability of a different result if the jury had been allowed to consider guilt under the predecessor statute of indecent or immoral practices of another. The Court remands the case to the trial court to amend the final judgment to reflect conviction of indecent or immoral practices of another.
Justice Cunningham, joined by Justice Scott, filed a dissenting opinion as to this issue, noting the Majority's holding is "slightly bizarre," and observing, "[a]s it stands, this case holds that the circuit court can take jurisdiction of any felony at any time it pleases--as long as the facts developed in the case fit the crime." The appropriate remedy should have been for the Commonwealth to have had to re-indict Appellant or ask Appellant to agree to be charged by information.
Contributed by Karen Maurer