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

Kentucky's Sentencing Reform Package to Improve Public Safety and Save Taxpayers Money Receives Support of National Groups

National groups support Rep. Yonts efforts to safely reduce correctional costs. Their letter of support is  posted here. The groups include:

• Crossroad Bible Institute
• Grassroots Leadership
• In The Public Interest
• International CURE
• Pretrial Justice Institute
• Prison Policy Initiative
• Southern Center for Human Rights
• The Ella Baker Center for Human Rights
• The Sentencing Project

The legislative package offers lawmakers the opportunity to address sentencing reform and save money in 2015 that could be used to provide more treatment for heroin addicts. The package of bills includes:

• HB 305 - Reduce low-level misdemeanors to violations with pre-payable fines,saving jail, prosecution, and defense expenses;
• HB 286 -Permit local jailers to grant limited service credits against an inmate's sentence for good behavior and educational achievement, saving jail costs and encouraging  good behavior, and also mandate alternative sentencing for flagrant non-support (instead of imprisonment), saving prison costs and better enabling delinquent parents to work to support their children;
• HB 285 - Require parole after a fixed period for nonviolent offenders serving a Class D sentence (currently the minimum is one year up to a 5 year maximum; offenses include trafficking marijuana near a school building)  and release for misdemeanants who have good behavior, saving county and state incarceration costs;
• HB 284 -Adopt of a “clear and convincing” standard for pretrial release decisions and findings specific to the defendant, guaranteeing that defendants who are low-risk and entitled to release are not needlessly held in jail at county expense; and
• HB 304 - Modify the persistent felony offender statute, saving prison costs and reinforcing public safety by facilitating proportionate sentences that align with the seriousness of the offense.  The measure limits application of persistent felony offender sentencing to specified triggering offenses; give jury discretion in this sentencing; allow previous offenses to be used only if defendant was incarcerated and finished serving the sentence within 15 years prior to committing the present offense.

Contributed Ed Monahan

KYSC - Gamble - 2nd Degree Trafficking Enhancement

Commonwealth v. Gamble, 2013-SC-000141, rendered 2/19/15, to be published, reversing.

A defendant can have his sentence enhanced as a persistent felony offender (PFO) when his underlying felony is second-degree trafficking in a controlled substance.

The second-degree trafficking statue states that, for anyone who traffics in any quantity of a controlled substance specified in the statute in an amount less than the amounts specified in the statute, “except that KRS Chapter 532 to the contrary notwithstanding, the maximum sentence shall be no greater than three (3) years.”  (See KRS 218A.1413(2)(b)(1).)  The Court found that “except that KRS Chapter 532 to the contrary notwithstanding” refers expressly to the Class D felony categorization and penalty range espoused in KRS 532.060, not to the portion of Chapter 532 that deals with PFO enhancement.  The Court also said that, because the PFO statute expressly prohibits the enhancement of a first-degree possession of a controlled substance sentence (see KRS 532.080(8)) but is silent on second-degree trafficking, the General Assembly demonstrated that second-degree trafficking is eligible for PFO enhancement.

The Court concluded by stating that in the event the General Assembly intended on preventing a second-degree trafficking in a controlled substance conviction from being enhanced by the PFO statute, it can expressly amend the statute to better reflect its intent in the future.

Contributed by Stephen Buck 

KY COA Feb 1 - Gamble- Second-Degree Trafficking and PFO

Gary Gamble, Sr. v. Commonwealth- COA, rendered 2/1/13, not to be published - The Court reversed and remanded when it found that the new second-degree trafficking statute (KRS 218A.1413(2)), which classifies second-degree trafficking as a Class D felony with a maximum sentence of three years, prohibits sentence enhancement under the PFO statute.  

Steven Buck of the Appeals Branch represented Mr. Gamble on appeal, and Michael Bass  and Steven Goble used novel motion practice to preserve the issue for appeal in circuit court.

Contributed by Molly Mattingly

 

Louisville Courier-Journal article about proposed amendments to PFOs

Public defenders seek changes to Kentucky repeat-offender law - Louisville Courier Journal

 

Prosecutors view the harsher penalties as a tool to crack down on career criminals and counteract the effects of early-release programs.

But since 1980, the number of state inmates sentenced under the PFO law has grown from 79 to more than 4,000, costing Kentucky taxpayers nearly $89 million in incarceration costs each year. Critics say that’s too much, given the state’s budget problems.

“We really can’t afford to continue this policy,” said Ed Monahan, head of the Kentucky Department of Public Advocacy.

The department, long opposed to the 35-year-old law, hopes to make its most forceful push to date for “modest adjustments” during the 2012 legislative session.

...

“Our major point is, this is costing Kentucky a lot of money and it is being applied to inmates who don’t fit the criteria of being incorrigible,” he said. “We ought to start to make modest adjustments that won’t in any way affect public safety.”

click here for complete article

 

 

LRC Press Release about Public Advocate's Testimony Regarding PFO laws

(video of the hearing is available at Aug 05 Interim Joint Committee on Judiciary Ed Monahan and Damon Preston's testimony begins 75 minutes in)

The state’s Public Advocate is asking state lawmakers to consider limits on who can be considered a persistent felony offender and violent offender in Kentucky.

Kentucky Public Advocate Ed Monahan told the Interim Joint Committee on Judiciary that “modest adjustments” to the state’s persistent felony offenders (PFO) and violent offender laws would result in more prisoners being released at a time when they are least likely to reoffend, save the state millions of dollars, and create a more balanced criminal justice system where the longest sentences are reserved for felons who Monahan described as more of a risk to public safety.

Today, Monahan said, there are 7,792 inmates in Kentucky sentenced as persistent felony offenders, violent offenders or both at a cost to the state of $169 million. Many are offenders who were convicted of the lowest level, often non-violent felonies.

In fact, Monahan said 1,441 Kentucky inmates are serving an average sentence of 11 years for an underlying offense classified as only a Class D felony, the lowest level felony offense under state law.

“One felony is a serious conviction with serious consequences. But if you look at the 7,700 you have a lot down at the Class D range. A question that one might ask is, do you really want to incarcerate those persons for this aggravated length of time at a significant cost to you?” said Monahan.

Many PFOS in Kentucky today are felons who have never served time for a prior offense, said Monahan. That has been the case since 1976 when, Monahan said, the Kentucky General Assembly tightened the state’s PFO statutes by abolishing the requirement that a person be imprisoned on a prior offense before being sentenced as a PFO and lengthened the time a PFO must serve before being eligible for parole, among other changes. Prior PFO statutes required three prior convictions and two separate periods of incarceration before a person could be sentenced as a PFO, he said.

Instead, the Public Advocate and his staff suggested that state lawmakers consider adjusting the PFO and violent offenders statutes in any number of ways, including eliminating PFO sentencing for non-violent felonies, using PFO status for sentencing of those with two or more prior felonies without a substantial break in criminal activity, repealing the required 10-year period before some PFOs are eligible for parole, an requiring actual imprisonment on prior felonies before a person can be sentenced as a PFO.

For violent offenders, Monahan’s office suggested reinstating Kentucky’s pre-1998 requirement that 50 percent of a violent offender’s sentence, rather than the current 85 percent requirement, be served before a violent offender is parole eligible. The office also suggests that violent offenders be limited to those convicted of six specific crimes including murder as well as rape, sodomy, robbery with a firearm, burglary with a firearm and assault—all in the first degree only.

Changing the PFO and violent offenders statutes would also restore sentencing jurisdiction to judges and juries rather than prosecutors, where it resides now because of legislative changes, said Monahan.

Committee Co-Chair Sen. Tom Jensen, R-London, asked Monahan if he believes the state’s PFO statutes from 1974—which Monahan said were more limited—were a better way to go.

“As a public policy measure…when do we say enough is enough for somebody?” said Jensen. “There comes a point where we have to say, I think we have to say, we just can’t tolerate your behavior.”

Monahan said what changes are made to the law is up to the General Assembly, but added that he is providing facts that will help lawmakers decide if they want to change the statutes or not.

Keeping felony offenders in prison for decades have not shown to be effective in all cases because it carries significant costs and, studies show, older inmates are less likely to reoffend, said Monahan. “The adjustments that can be made (would give) the Parole Board a little more discretion with those folks,” he said.

Right now, Monahan said Kentucky’s PFO and violent offender statutes are some of the broadest in the nation.