KY COA May 11th - Hamm - Client's inability to pay child support

Hamm v. Commonwealth, ---S.W.3d--- (Ky. App. 2012), rendered May 11, 2012, To be published

Mr. Hamm appealed his pretrial diversion revocation by the Boyd Circuit Court for his continued failure to pay child support. The diversion agreement called for Mr. Hamm to pay current child support and a portion of arrearages on a monthly basis. Three months later, a bench warrant was issued for failure to make payments. At the revocation hearing, Mr. Hamm admitted he had not made his support payments, but cited his inability to pay. He testified that he managed to earn about $40 per week, barely enough for himself, and far short of child support levels. The trial court revoked based solely on the failure to pay.

The Court of Appeals held that the circuit court’s revocation was improper in light of Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011). Under Marshall, the trial court must consider the two Bearden v. Georgia, 461 U.S. 660 (1983), factors: 1) consider whether the probationer made sufficient bona fide efforts to pay, but has been unable to pay through no fault of his own; and 2) if so, consider whether alternative forms of punishment might serve the interests of punishment and deterrence. Id. at 823-24. The Court of Appeals agreed that Marshall applied and the trial court denied Mr. Hamm his due process rights by summarily revoking diversion based solely on his inability to pay. The trial court abused its discretion in failing to make the Bearden inquiry and appropriate findings of fact pursuant to Marshall.

Trial tip: in these revocation cases for failure to pay support, provide evidence that the client’s inability to pay was not through any fault of his and be prepared to provide alternatives forms of punishment.

Contributed by Brandon Jewell

KY COA May 11th - Thornton - Right to be heard in contempt sentencing

Anthony Thornton v. Commonwealth, ___ S.W.3d ___ (Ky. App. 2012)  To be published.

Thornton was found guilty of direct criminal contempt for his courtroom behavior but delayed sentencing until after his jury trial was over.  After the trial, the court sentenced him to 6 months for contempt without a hearing.  Under Schroering v. Hickman, 229 S.W.3d 591, 594-595, if a court delays imposing a sentence for contempt, the contemnor is entitled to exercise his due process right to be heard at a sentencing hearing.  The judgment was reversed and remanded for a new sentencing hearing. 

Contributed by Brandon Jewell

KY COA May 11th - Grider - Commonwealth shifting theory from indictment to trial and discovery violations

Commonwealth v. Grider, ___ S.W.3d ___ (Ky. App. 2012)  To be published.

The Circuit Court dismissed the indictment against Grinder with prejudice.  This was proper because the Commonwealth shifted its theories of criminal liability at the trail from those listed in the indictment.  The indictment alleged Grinder had billed Medicaid for one drug while dispensing another less expensive drug.  In opening statement, the Commonwealth said the crime was that Grinder violated Medicaid’s administrative regulations requiring pre-authorization to be reimbursed for specific drugs.  Because the jury had already been seated, the trial court could dismiss the indictment under RCr 6.12 because Grinder’s substantial rights were prejudiced; on top of shifting its theory of criminal liability, the Commonwealth had also failed to provide a bill of particulars detailing the circumstances of the crime despite being ordered to multiple times and had failed to disclose exculpatory evidence until a few days before trial which contained too much information to fully analyze in a few days.

Contributed by Brandon Jewell

KY COA Feb 24th - Phillips

George Phillips v. Commonwealth 2010-CA-000969-MR

Rendered February 24, 2010.  To be published. 

Phillips began his sentence in 1983.  He was sentenced to three separate ten years sentences on rape, sodomy, and burglary.  The final judgment and DOC had the convictions listed in that order. 

Phillips argued he had to serve the sentences in that order and that with time credits he had served out on his qualifying sex crimes prior to the 1998 and 2000 amendments to SORA (requiring sex offenders to register) and thus was not required to register.  Those amendments only applied to people sentenced or incarcerated after their effective date. 

Although he was still incarcerated, Phillips argued that he was no longer serving on the sex offenses but, rather, on the burglary offense.  The Court of Appeals found that under KRS 532.120(1)(b), the maximum terms of consecutive sentences are added to arrive at an aggregate maximum term.  Since he was still incarcerated when the amendments took effect, the Court of Appeals found he was still serving on the rape and sodomy convictions because they are part of one aggregate term.

Contributed by Brandon Jewell 

Featured Case - Hall - Instructions on Lesser-Included Offense

Douglas Wayne Hall v. Commonwealth, 2009-SC-000244
Opinion of the Court by Chief Justice Minton- Affirming, in part, and reversing and remanding in part.
Schroder, J., concurs in part and dissents in part by separate opinion.

Hall was convicted of second-degree manslaughter, first-degree assault, first-degree burglary, and first-degree robbery.  Hall argued that a strict same-elements test should be used for determining the appropriateness of instructing on a lesser-included offense, and that under such an approach, the jury should not have been instructed on assault as a lesser- included offense of murder. 

The Supreme Court rejected this approach and followed Perry v. Commonwealth.  A strict elements test calls for looking at the elements of a crime rather than looking at the facts set out in a particular case.  For example, if a person is charged with murder, under a strict elements test, assault could not be given as a lesser- included offense because the state of mind for assault is not included in the elements of murder.  However, under the facts of a particular case, a jury could find assault when someone is charged with murder.  The Court concluded that under the facts of this case, the jury could have found assault.  Hall objected to an assault instruction but asked that if one were given, that a facilitation- to- assault instruction also be given.  The Court found that despite Hall’s denials of knowing of his co-defendant’s intent and of providing a gun to his co-defendant, there was evidence to support an instruction on facilitation to assault.  That is, the jury was not obligated to accept Hall’s denial of knowledge of the co-defendant’s intent or his denial of giving the gun to him and could have inferred Hall did have such knowledge but did not intend to promote the assault.

Contributed by Brandon Jewell

Featured Cases - Hallum & Jones - Prison Mailbox Rule

Michael Allen Hallum v. Commonwealth, 2009-SC-000762-DG—rendered April 21, 2011.
AND
Joe B. Jones v. Commonwealth, 2010-SC-000049-DG.
Opinion of the Court by Justice Scott- Reversing.
All concur

Consolidated appeal.  Both Appellant’s placed their pro se notices of appeal from the denial of a post-conviction motion and their motions to proceed in forma pauperis in the prison mail system before the due date but they were not marked tendered or filed in the Circuit Court Clerk’s office until after the due date.  The Court of Appeals dismissed the appeals as untimely filed.  The appellants filed for discretionary review in Supreme Court asking the Court to adopt a prison mailbox rule.  While the case was pending on appeal the Supreme Court adopted RCr 12.04(5): “If an inmate files a notice of appeal in a criminal case, the notice shall be considered filed if its envelope is officially marked as having been deposited in the institution’s internal mail system on or before the last day for filing with sufficient First Class postage prepaid.”  This rule was adopted because inmates cannot take the steps other individuals can take to ensure their notice of appeal is actually filed by the Circuit Court Clerk.  As they requested this relief, and this rule was adopted, prior to finality of the post-conviction action they were attempting to appeal, the Court applied the rule retroactively for them and reversed the Court of Appeal’s decision to dismiss their appeals.

Contributed by Brandon Jewell

Featured Case - Tunstull - Robbery

Troy Anthony Tunstull v. Commonwealth, 2009-SC-000170—rendered April 21, 2011.
Opinion of the Court Affirming by Justice Schroder.
Venters, J., dissents by separate opinion in which Minton, C.J., joins.

The Appellant was convicted of four counts of second degree robbery.  He contended there was insufficient evidence to convict him because there was no evidence he used or threatened the use of physical force as required by KRS 515.030(1), and thus he should have been granted a directed verdict.  The Supreme Court concluded there was sufficient evidence because an individual, particularly when masked or otherwise disguised, coming into a bank aggressively demanding money is a threat in and of itself. 

Moreover, the Supreme Court concluded that a theft by unlawful taking instruction was not required as a lesser-included instruction because there was evidence of the aforementioned implied threat and because theft does not require a threat.  Moreover, a facilitation instruction was not warranted because the evidence was that the Appellant was either an active participant or that he was not involved whatsoever (according to his testimony) as opposed to being “wholly indifferent” as a facilitator. 

The Court also concluded the trial court did not err by denying funds for a false confession expert because the Appellant did not claim his will had been overcome by police or that his confession was unreliable due to a mental condition but rather that he confessed to try to protect his cousin and that he was able to articulate his reasons for making what he claimed was a false confession at trial. 

Contributed by Brandon Jewell

Featured Case - Birdsong - Robbery and "force" not aimed at victim

Birdsong v. Commonwealth, 2009-SC-000084— rendered April 21, 2011.

Opinion of the Court Affirming (no justice named).

Venters, J., dissents by separate opinion in which Minton, C.J., joins.

In this case, the Kentucky Supreme Court held that a person can be found guilty of second-degree Robbery as long as “force” is used, even if that force is not aimed at a victim, but is instead aimed at inanimate objects.  Mr. Birdsong, after ordering bank tellers in a loud voice to give him the money, slammed through the teller door and pushed computer equipment on the ground.  Two tellers testified that they felt threatened.  In determining the definition of the word “threaten,” the Court used a definition from the American Heritage Dictionary, which defined the word as “1 . To express a threat against. 2 . To be a source of danger to; menace. 3 . To portend. 4. To indicate danger or harm ." American Heritage Dictionary 840 (3d ed. 1992).  Moreover, a "threat" is "l . An expression of an intention to inflict pain, injury, or evil. 2 . One regarded as a possible danger." Id.  There were two dissenters, who noted that the General Assembly intended that the word “threaten” be considered an active word, describing the actions of the accused, rather than a passive word which includes the impressions of the victims. 

Contributed by Brandon Jewell