KYCOA - Lederer - Probation Revocation

Aaron Lederer v. Commonwealth - COA, 6/12/15, not to be published 

The Court reversed and remanded the trial courts revocation order revoking Mr. Lederer’s five year sentence for failing to report. Mr. Lederer was only a few months away from completing his probation at the time of his revocation. The Court found that the trial court did not follow “the new state of the law” pursuant to Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014), and KRS 439.3106(1) as to whether the violation constitutes a significant risk to prior victims or the community or whether the defendant can be managed in the community. Of particular interest in this case is footnote 3 where the court found the following:

The Commonwealth asserts Lederer did not properly preserve his argument that the trial court failed to make appropriate findings under KRS 439.3106. The record demonstrates that Lederer’s counsel did ask the court to consider sanctions other than revocation and incarceration based on the common nature of the violation and Lederer’s history while on probation. Even assuming this issue was not properly preserved, the trial court’s failure to consider KRS 439.3106 certainly constitutes palpable error in light of the Supreme Court’s explicit directive to do so under Andrews. See  Kentucky Rule of Criminal Procedure (RCr) 10.26.  

(emphasis added). 

The Court is explicitly saying that even if trial counsel does not object to such issues it will not be detrimental to the defendant on appeal. 

Contributed by Jason Apollo Hart 

KYCA - Stewart - Correcting PSI

Lee A. Stewart v. Commonwealth, 2013-CA-001716, rendered 5/22/15, to be published, reversing and remanding. Opinion by Chief Judge Acree, Moore and Thompson concurring.

            Because the trial judge should have allowed Stewart an opportunity to controvert alleged errors in his Presentence Investigation Report (PSI), the Court of Appeals reversed and remanded with instructions to afford Stewart “the fair opportunity, within a reasonable period of time, to controvert the findings contained in the PSI.”

It is not DOC’s job to correct a PSI, and they will not do so. It is the trial court’s job not merely to “note” errors in a PSI, but to afford an opportunity to put on evidence, and to correct the PSI accordingly.

            The proper procedure for challenging a faulty PSI is by direct appeal. A challenge to the PSI can be raised on direct appeal even if no other issue is raised.

Contributed by Susan Balliet.  

KYSC - Cave - Restitution as Jury Question

Cave v. Commonwealth, 2013-SC-000542-MR, 2015 WL 1544451 rendered 4/2/15, NOT TO BE PUBLISHED, affirming.

Mr. Cave waived any right he may have had under the Kentucky Constitution to a jury determination of restitution. But while this is an unpublished opinion, the Court suggests in this case that there may very well be a right to a jury for questions regarding restitution –in a case where the issue has been raised and preserved for appeal:

Cave is correct that Section 7 of the Kentucky Constitution and CR 38.01 guarantee the right to trial by jury in civil cases. However, Cave ignores CR 38.04, which states that the failure to demand a jury trial waives that right. Cave never demanded a jury trial on the issue of restitution; therefore, he waived any right he may have had to one. Because Cave did not seek a jury trial on the issue of restitution, we are not addressing whether he would have been entitled to a jury trial had he done so.

Cave v. Commonwealth, 2015 WL 1544451, at *10 (Ky. Apr. 2, 2015).

Practice tip:  If and when the Commonwealth demands restitution, defense counsel should cite Section 7 of the Ky. Constitution and demand a jury determination of whether restitution should be imposed at all, and if so, in what amount. This will at least preserve the jury question for appeal. Feel free to contact me for briefing on the issue.

Contributed by Susan Balliet

KYSC - Moore- PFO reversal

Arnold Moore v. Commonwealth; Kentucky Supreme Court; June 11, 2015; To Be Published. 

Following a guilty verdict on manufacturing methamphetamine and possession charges, the trial proceeded to the PFO phase. Arnold had a prior felony conviction that was entered 5 years and 7 months before the date of offense in this case. The prosecutor introduced that judgement but chose not to call any witnesses. 

The Supreme Court granted directed verdict on the PFO charge and reiterated the prosecution bears the affirmative burden to prove every element of PFO beyond a reasonable doubt. The prosecutor failed to meet this burden because no evidence, whether testimony or document, created a reasonable inference that Arnold was still incarcerated or on some form of supervised release with 5 years of this offense. 

The Court reversed his PFO 1^st conviction and 50 year sentence and remanded the case to impose the 15 year sentence for the underlying convictions, which reduced Arnold’s sentence by 35 years. Given the lackadaisical effort by the prosecutor that had a dramatic impact on the sentence, the Supreme Court took the opportunity to emphasize the serious nature of the PFO portion of the trial:

 “As illustrated by this case, the PFO phase of the trial is of substantial and potentially life-changing significance to all parties involved, and to the general public. Given the gravity of its consequences, we would presume that this phase of the trial would be handled with the utmost respect, not as a mere after-thought or postscript of the guilt phase. The somewhat haphazard presentation of PFO evidence that we occasionally see suggests a less than serious commitment to this vital aspect of criminal trial procedure.” 

Greg Griffith represented Arnold at trial, where he made an aggressive argument for directed verdict and followed it up with a substantive post-trial motion for acquittal. Sam Potter represented Arnold on appeal.

Contributed by Sam Potter

KYSC - Lopez - Interpreters and Statements

Jose Lopez v. Commonwealth,  Ky. Sup. Ct., 5/14/15, to be published. 

The Kentucky Supreme Court affirmed Mr. Lopez’s conviction to a total of forty (40) years unlawful transaction with a minor and incest. On appeal Mr. Lopez argued that the interpreter, employed at T.J. Sampson Hospital, was not a qualified interpreter under KRS 30A.400. KRS 30A.400(2) “provides that a statement made by a person entitled to an interpreter shall ‘only be admissible if the statement was made, offered, or elicited in the presence of a qualified interpreter.’ ” The court found that the error, even if it was error, was harmless in this case where, “Here, the evidence of Lopez’s guilt, even without his statement, was overwhelming.” 

The Court left this issue open although it noted a possible Constitutional separation of powers issue with the statute in footnote 4. The Court also addressed the question “whether the use of an interpreter alters the nature of Lopez’s statement” for hearsay purposes. All though there was no direct law on this issue in the Commonwealth, the Court adopted Fletcher v. Commonwealth, 96 S.W.855, 857 (1906) holding that an interpreter is a “mere conduit by which the testimony of the witness was conveyed to the grand jury.” The court further held that, “We recognize that in certain circumstances the trial court may be justified in excluding testimony based on a translated statement, such as when the translation is inaccurate or misleading.” 

Jason Apollo Hart of the Appeals Branch represented Mr. Lopez on appeal and Gregory K. Berry with the DPA trial office preserved the issue regarding KRS 30A.400 for appeal. 

Contributed by Jason Apollo Hart