Tuesday, February 25, 2014

Kentucky League of Women Voteres releases analysis of amendments to felon voting rights bill

·  Kentucky one of four most restrictive states banning former felons from voting
·  Original provisions of HB 70 automatically restore rights to about 180,000 individuals if Constitutional amendment approved
·  HB 70 as amended requires 5-year waiting period and imposes other restrictions denying or delaying restoration of voting rights for 100,000 individuals
·  Amendments put undo burden on election officials

Frankfort, KY - The League of Women Voters of Kentucky released “An Analysis of the Impact of HB 70 and Proposed Amendments Regarding Voting Rights for Persons with Felony Convictions” today. Under House Bill 70 as originally proposed, permanent disenfranchisement would be eliminated for all but a handful of offenses and all rights would be restored at completion of sentence. Amendments introduced in the Senate last week, would substantially limit the number of individuals who would benefit from the policy change, as well as create greater administrative burdens for election officials. It is estimated that as many as 55% of the ex-felon population currently disenfranchised in Kentucky would continue to be excluded from the automatic rights restoration process if these amendments were enacted and the proposed Constitutional amendment are approved by voters. According to a 2013 League report Kentucky has the third highest rate of citizens and the second highest rate of African Americans who have lost their right to vote despite completing their full felony sentence

According to the recent analysis, of the 180,000 former felons who have completed their sentences and who would have voting rights restored under original provisions of HB 70, 100,000 would be adversely affected by these amendments. 

Kentucky’s disenfranchisement policies are harsh compared to most states. Neighboring states Illinois, Indiana and Ohio restore voting rights immediately upon release from prison, and Missouri, Tennessee and West Virginia restore rights upon completion of probation or parole supervision. None of these states impose any restrictions on the right to vote for any offense after completion of sentence.
The amendments to HB 70 impose a five-year waiting period after sentencing has been completed and disqualify anyone with more than one felony conviction from automatic restoration of voting rights. These limits would create an undue burden for County Clerks who would be obligated to certify that individuals had completed the full waiting period, a challenging task.

The League has a longstanding belief that every citizen of our Commonwealth should be protected in the right to vote. Legislative co-chair of the state League, Terry Naydan said, “The League supports HB 70 without amendments as we seek to increase citizen participation in our state’s electoral process, as most other states have done.”

 “The League was created by women who struggled many years seeking the right to vote,” said Cindy Heine, League co-president. “We believe citizens who have made a mistake should have that right reinstated once they have completed their full sentence and/or parole.”

The state League of Women Voters takes positions only after deliberation and consensus from local Leagues across the state.

“An Analysis of the Impact of HB 70 and Proposed Amendments Regarding Voting Rights for Persons with Felony Convictions,” February 2014; Felony Disenfranchisement in the Commonwealth of Kentuckya Report of the League of Women Voters of Kentucky, January 2013 and October 2006 are available at lwvky.org/about/publications/.

Thursday, February 20, 2014

KYSC - Mitchell - Hybrid Representation/Jury Instruction/Misleading Photos

Dwayne Mitchell v. Commonwealth- KSC, 2/20/2014, to be published

The Kentucky Supreme Court reversed and remanded, finding that the trial court violated Mr. Mitchell’s right to hybrid representation by denying him the right to represent himself on a pre-trial motion while still retaining the services of counsel for the remainder of the proceedings. The trial court further erred in providing jury instructions that omitted an essential element of first-degree robbery and erroneously allowing the introduction of misleading photographs.  

Tom Ransdell and Kate Benward of DPA Appeals represented Mr. Mitchell on appeal.

Contributed by Karen Maurer

Wednesday, February 19, 2014

KYCOA - Jones - Restitution held open

Thomas Jones v. Commonwealth, 2012-CA-001827 [NOT TO BE PUBLISHED] 

Thomas Jones pled guilty to sexual contact with a then fifteen year old girl.  A result of this contact was that the girl contracted herpes.  The trial court, when ordering restitution, attempted to “hold open” the restitution order, and allow the girl to petition the court for additional restitution if her circumstances changed.  The Kentucky Court of Appeals held that this violated KRS 532.033 because it was not a “set and definite amount.”   

John Landon represented Mr. Jones on Appeal; Margot Merrill preserved this issue in the trial court.

Practice tip: Object and appeal when a trial court allows a victim to petition for more restitution in the future

Contributed by Karen Maurer

Monday, February 17, 2014

KYCOA - Brown - Protective Sweep

Brown v. Commonwealth – COA, 2/14/14, reversing and remanding, to be published

Police received information that Appellant and two other men had assaulted a woman with a handgun and retreated to Appellant’s home.  Police also knew that Appellant had an AK-47 assault rifle inside the house.  Police went to the residence and ordered the men out.  The three men emerged with two women and informed the officers no one remained inside.  Officers conducted a protective sweep of the house and found guns, marijuana, and drug paraphernalia.  The Court found that the officers did not  have articulable information to reasonably believe someone remained inside the home.  A general concern that someone might still be in there did not justify the search.

Steve Buck represented Mr. Brown on appeal.  Chris Tracy represented Appellant in Fayette Circuit Court.

Contributed by Karen Maurer

Monday, February 10, 2014

KYCOA - Wilson - inevitable discovery rule

Wilson v.Commonwealth- COA, 2/7/14, to be published- 

A cell phone, GPS, .380 ammunition, and a .380 caliber handgun were stolen from a man’s car.  In tracking the cell phone on “Mobile Me,” the officers were led to a certain apartment complex.  While officers called the phone and walked along the back of the apartment complex listening for the cell phone to ring, an officer saw five bullets on a patio chair.  The bullets were retrieved as well as a GPS unit discovered in a trash can on the patio; the lid on the trash can was askew. In applying for a search warrant, the officers referenced seeing the ammunition, but concerned with the propriety of the way the GPS unit was discovered, did not reference the GPS in the affidavit for the search warrant.  

While the Court of Appeals found the evidence was illegally seized, it refused to reverse based on the “inevitable discovery rule.”  As the Court stated, “Because we have concluded that the record supports the trial court’s conclusion that the officers had probable cause to obtain a search warrant to search the apartment, both the record and commonsense dictate that the police would have inevitably recovered the suppressed evidence. Consequently, even though this evidence was illegally seized, under the inevitable discovery rule, there was no error. Hence, the items do not require suppression.”  

Karen Maurer of DPA Appeals represented Mr. Wilson on appeal.  Brad Clark of the Lexington trial office represented Mr. Wilson below.  

Contributed by Emily Rhorer 

Friday, February 7, 2014

Judicial Branch implements new expungement certification process

Press Release from AOC -

FRANKFORT, Ky. -- Beginning Jan. 1, 2014, state law requires every petition for expungement in Kentucky to include a certificate of eligibility for expungement. Under KRS 431.079, individuals who wish to have their criminal records expunged must complete the expungement certification process to determine if they are eligible for expungement. The certification provides judges and prosecutors with the most current and complete information available on a individual’s record.

KRS 431.079 is the enactment of Senate Bill 78, which was passed during the regular session of the 2013 General Assembly.

The Kentucky State Police are overseeing this process in conjunction with the Administrative Office of the Courts. Under the new law, both agencies must run criminal record reports on the person petitioning for the expungement. The KSP will then certify the eligibility of the expungement request.

Individuals can request certification through the AOC by registering online, by U.S. mail or in-person at the AOC Records Unit drive-thru window at 1001 Vandalay Drive in Frankfort. The certification costs $40 and the process takes up to 60 days. Those who obtain an expungement certification may then file a petition for expungement with the Office of Circuit Court Clerk in the county where the original charge was filed. The petition must be filed before the certification expires in 30 days.

Under the new process, judges will receive an expungement certification packet along with each petition for expungement. The certification ensures that judges can take into account an individual’s most up-to-date and comprehensive record information when determining whether to grant an expungement.

Individuals can visit the Kentucky Court of Justice website at http://courts.ky.gov/expungement to learn more about the expungement certification process. The site provides a list of frequently asked questions and describes the steps to submit a request online, in-person or by U.S. mail. The benefits for those applying electronically include email notifications throughout the process, the ability to check on the status of the certification online and the ability to download the certification packet as soon as it becomes available.