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Errick Duncan v. Com., Kentucky Court of Appeals, Not to be Published (1/13/17)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Notably, Morrow v, Commonwealth, 77 S.W.3d 558 (Ky. 2002) has been superseded by virtue of passage of HB 463.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.

1 pill, 10 years: Court reviews vet's sentence: Louisville C-J

To his lawyer, James Kidd is the "epitome" of the kind of person the Kentucky General Assembly does not want sitting in prison.
An injured Gulf War veteran with no prior felony record, Kidd was convicted of drug trafficking in a controlled substance in 2009 for selling a single pill and sentenced to 10 years in prison.

His sentence was probated on the condition that he leave Kentucky for five years, but when he returned to visit his ailing mother in 2012, a circuit judge in Lee County revoked his probation and ordered him to serve the 10 years, the maximum allowed by law.
To Public Advocate Ed Monahan, locking up offenders like Kidd is why Kentucky is wasting millions of dollars a year on corrections even as crime rates fall.

"We should not be imprisoning a wounded veteran for 10 years at an average year's cost of $21,906 … because he was technically in violation of his conditions of probation," Monahan said in an email.
....

On Thursday, the Kentucky Supreme Court will hear arguments on whether Kidd should have been sent to prison, or whether Circuit Judge Thomas Jones should have imposed lesser sanctions, such as electronic monitoring — as spelled out in the state's groundbreaking 2011 sentencing reform law designed to reduce incarceration and steer tax dollars into drug treatment.
....

Jewell and Monahan said the case also will be crucial in determining whether judges must heed House Bill 463, the Public Safety and Offender Accountability Act, which requires that graduated sanctions be considered before an offender on probation is sent to prison.

Read the complete story on the Courier Journal's web page

Pew Article about Kentucky

In this summer's edition of Trust by The Pew Charitable Trust is an article about Kentucky's role Leading With Facts by Peter Perl.

With Pew’s help, Kentucky lawmakers found agreement on divisive issues through research-based evidence that pointed to solid solutions. From controlling prison costs to rescuing its pension fund, the Bluegrass State has become a laboratory of ideas—and a story of accomplishment.

In his 38 years as a public defender in Kentucky, Edward Monahan observed
with growing alarm—and then anger—the irrationality of a juvenile
justice system that incarcerated tens of thousands of young people for offenses
that wouldn’t even be crimes if committed by an adult: running away
from home, alcohol or tobacco use, chronic truancy, persistent tardiness,
or disobeying a judge’s order to return to school and do their homework.

Read the complete article here

Corrections reform legislation continues to yield positive results for the Commonwealth

From the Official Blog of the Kentucky Chamber of Commerce 


Supporters of Kentucky’s 2011 House Bill 463, a landmark corrections reform bill, gathered Wednesday in the Capitol Rotunda to hear the latest evidence of its continued success. Chamber President & CEO Dave Adkisson joined Rep. John Tilley, Sen. Whitney Westerfield and various members of the law enforcement community to voice support for the reform’s impact.

Complete Post 

Rep. Tilley Op-Ed about HB 463 - Lexington Herald-Leader

Ky.'s prison reform a model for nation with lower costs, recidivism

Nearly two months ago, when the U.S. attorney general announced major reforms for the Justice Department, those of us who oversee Kentucky's criminal justice system couldn't help but feel a strong sense of déjà vu.

That's because the problems noted in the federal system — skyrocketing prison populations coupled with limited options for drug treatment and alternative sentencing programs — are remarkably similar to the problems Kentucky faced several years ago, and the proposed solutions are largely modeled after the landmark criminal justice reforms that have governed our state for the last two years.

The groundwork for this was laid in 2010, when leaders of all three branches of state government came together to see how we could begin reversing the 45 percent growth Kentucky's prison system witnessed during the previous decade, a rate nearly four times the national average. 

Staying the course, especially at a time of budget cuts and a crime rate that was not improving, was both unsustainable and unwise.

A bipartisan, inter-branch task force I was proud to co-chair sought out solutions from anyone who had a stake in the outcome, including judges, prosecutors, defense attorneys, victims' advocates and local officials. Helping guide us was the Pew Center on the States, a non-profit organization that has extensive knowledge in this area.

The result of this work was House Bill 463, which became law in 2011 with only one dissenting vote. Since then, its successes have started to mount.

complete story

Read more here: http://www.kentucky.com/2013/09/26/2843592/kys-prison-reform-a-model-for.html#storylink=cpy

 

Read more here: http://www.kentucky.com/2013/09/26/2843592/kys-prison-reform-a-model-for.html#storylink=cpy

KYSC - Kerr - Anonymous Tip, HB 463

Barry Kerr v. Commonwealth, 2011-SC-000247-MR (6/20/13)

The Court reversed and remanded for a new trial after the jury was not told about an anonymous tip that Mr. Kerr was selling drugs out of a motel room.  This was pure hearsay, and admission of this was not harmless, particularly in light of the fact that the Commonwealth Attorney harped on the anonymous tip in closing arguments.  The Court noted that on remand Mr. Kerr can take advantage of HB 463 remedial penalty provisions upon his request which should be helpful to him as his current sentence is 50 years imprisonment for various drug crimes.  

Emily Rhorer represented Mr. Kerr on appeal, and Emily Reed did a great job preserving the winning issue as well as many other issues.  

Contributed by Jason Apollo Hart 

KYSC - Kerr - HB 463 application

Berry Kerr v. Commonwealth- 11-SC-247-MR (6/20/13) (to be published).  Mr. Kerr was convicted of numerous drug crimes, which were enhanced by virtue of being both second or subsequent convictions and first-degree PFO, and he was sentenced to 50 years imprisonment.  The Supreme Court reversed and remanded for a new trial, and on remand he will be able to take advantage of the remedial measures enacted in HB 463.  

Held- Jury should not have been told about an anonymous tip that Mr. Kerr was selling drugs out of a motel room.  This was pure hearsay.  Admission of this was not harmless, particularly in light of the fact that the Commonwealth Attorney harped on this in closing arguments. 

Emily Rhorer of Appeals represented Mr. Kerr before the Kentucky Supreme Court.  Emily Reed of DPA Somerset represented Mr. Kerr at trial, and did a great job preserving this issue and other issues.  

Contributed by Jason Apollo Hart 

KY COA Nov 30 - Andrews - HB 463 and Probation

djenkins 14.00

Normal 0 false false false EN-US X-NONE X-NONE

Andrews v. Commonwealth, 2011-CA-001360, Not to be published, -

The trial court revoked Andrews probation when it found a single positive drug test made him a significant risk to the community and that he could not be managed within the community.  After Andrews failed the drug test, he checked himself into a treatment center and was doing well.  The trial court revoked Andrews probation.

The Court of Appeals reversed, finding that HB 463 has a particular emphasis on using treatment to rehabilitate offenders and decrease overall costs, and that a failure to comply with a condition of probation is no longer sufficient to automatically justify revocation of probation. 

The Commonwealth must now prove by a preponderance of the evidence that the probationer poses a significant threat to prior victims or the community and cannot be managed in the community. Here, Andrews was doing well on probation (except for single drug test failure) and doing well in a community-based treatment program. The Court also took issue with the trial judge’s consideration of Andrew’s initial denial of his need for treatment: “Andrews should not be barred from accessing treatment now simply because he previously denied he had a substance abuse problem or needed treatment.  If we were to allow revocation of probation under these circumstances, it would negate the entire statutory change to the probation revocation process and the purposes underlying House Bill 463.”

Contributed by Shannon Smith