KYCOA - Evans - Sentencing/Parole Eligibility

Garfield Evans v.Commonwealth, 2016-CA-1632, to be published-palpable error in sentencing

Mr. Evans was convicted of three counts of third degree assault. During the sentencing phase, a probation and parole officer testified that Mr. Evans would be eligible for parole in 3 years if he received the maximum sentence of 15 years. In closing, the Commonwealth told the jury that Mr. Evans was “only looking at three years to serve,” if he was given the maximum sentence of 15 years. During deliberation the jurors sent the trial court a question asking how many years Mr. Evans would actually serve if they gave him a 12 year sentence. The trial court declined to answer. 

The Court of Appeals found that the Commonwealth’s misrepresentation resulted in palpable error and remanded for a new sentencing. Mr. Evans was represented by Erin Hoffman Yang on appeal.

KYCOA - Duncan - Illegal double enhancement

Errick Duncan v. Com., Kentucky Court of Appeals, Not to be Published (1/13/17)

The trial court subjected Mr. Duncan to an illegal double enhancement when he was convicted of being a First Persistent Felony Offender First Degree Trafficking in a controlled substance, second offense. Accordingly, Mr. Duncan’s PFO conviction was vacated by the court. 

Notably, Morrow v, Commonwealth, 77 S.W.3d 558 (Ky. 2002) has been superseded by virtue of passage of HB 463. One of the changes is that under KRS 532.080(10)(a), PFO status is not applicable to “a person convicted of a criminal offense if the penalty for that offense was increased from a misdemeanor to a felony, or from a lower felony classification to a higher felony classification,” i.e. one cannot be convicted for a second offense and subjected to a PFO enhancement. 

Mr. Duncan was represented by Erin Hoffman Yang on appeal and Adam Sanders at trial.

KYCOA - Lydon - Knock and Talk/Exigent Circumstances

Ian Lydon v. Commonwealth, Opinion Reversing and Remanding, To be Published

On a grant of discretionary review, Lydon argued that the circuit court erred in affirming the district court’s decision overruling his motion to suppress evidence observed and photographed when police entered his home without a warrant. The subject incident occurred when officers were looking for a juvenile who was involved in an incident earlier that day, and they received information that the juvenile was at appellant’s apartment. The officers conducted a knock and announce at the front door of appellant’s apartment. Lydon was confronted about the missing juvenile and the smell of marijuana. Before Lydon could answer, the officers entered the home. 

The Court of Appeals noted that the only indicia of criminal activity at the time of entry was the odor of burning marijuana, which can create probable cause but is insufficient, by itself, to create exigent circumstances justifying a warrantless entry. By the time the officers saw the juvenile for whom they were searching, they had exceeded the bounds of their knock and talk and were in a place they had no legal right or justification to be. 

Bill Maddox represented Mr. Lydon in district court and circuit court

Erin Yang represented Mr. Lydon on the Court of Appeals

KYSC - Law Enforcement Cannot Question a Defendant Represented by Counsel

Kentucky Rejects Montejo v. Louisiana under Section 11 of the State Constitution, retains Michigan v. Jackson rule. 

Keysor v. Commonwealth, 2013-SC-531

In Michigan v. Jackson, 475 U.S. 625 (1986), the United States Supreme Court said that after a defendant asserts his right to counsel “at an arraignment or similar proceeding,” any waiver of that right at any subsequent police-initiated interrogation is invalid.  This was an important protection of the right to counsel.  Jackson was adopted by the Kentucky Supreme Court in Linehan v. Commonwealth, 878 S.W.2d 8 (Ky. 1994).  

In 2009,  Jackson was overturned by Montejo v. Louisiana, 556 U.S. 778 (2009). In Montejo, the Supreme Court decided that a defendant, charged with murder and represented by counsel, may nevertheless be approached by police for interrogation without the knowledge or presence of his attorney as long as the police obtain a Miranda waiver.  

In this case, the defendant entered a conditional guilty plea, urging the Kentucky Supreme Court to retain the Jackson rule on state constitutional grounds. The court reversed, stating “[a]lthough our embrace of Jackson in Linehan did not explicitly reference Section 11 of the Kentucky Constitution, we implicitly found Jackson to be in accord with the right to counsel under Section 11 and we expressly do so now.” “Moreover, maintaining and protecting the integrity of the attorney-client relationship is an important public policy of this Commonwealth.” As such, the court rejects the Montejo rule allowing law enforcement to question a defendant represented by counsel.

The trial attorney was David Perlow.  Represented on appeal by  Erin Hoffman Yang