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.

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

What a Waste by Ernie Lewis

All I know about Anthony Thornton is what I read in the September 26, 2013 opinion by the Kentucky Supreme Court. I know from that reading that he had two prior felonies at the time that he found himself in the Metro Corrections Center, the jail in Louisville. I know that he is mentally ill, having asserted an insanity defense at trial. I know too that he found himself in the jail being transferred from one place to another. He "resisted" the efforts of Officers Darren Gibson and Laron Stoner as a result of which he was charged with third degree assault. The act was a punch. The injury was a "bruised cheek." First and second degree assault are Class A and B felonies in Kentucky and are differentiated by the degree of injury and whether the defendant is armed or not. They are by nature violent offenses leaving victims in their wake. Third degree assault, on the other hand, was passed long after the Kentucky Penal Code and was intended to protect certain classes of persons. Initially it protected police officers. Later it was expanded to included social workers, EMS workers, volunteers in fire departments--you get the picture. Third degree assault is classified as a Class D felony--the lowest level in Kentucky, carrying 1-5 years in prison. Thornton was tried and convicted of third degree assault and was sentenced by a jury (yes, we have jury sentencing here in the Commonwealth) to 1 year in prison. He would have been eligible for parole in 4 months. Except...

We also have our version of 3 strikes. It means that a person with two prior felony convictions within a particular period of time gets an enhanced penalty. One prior elevates the penalty 1 classification. Two priors elevate the penalty even more. For Thornton, the one year penalty turned into a 20 year sentence. I don't know when he will be eligible for parole because it depends upon the nature of his prior felonies. I know that the Kentucky Parole Board is not kind to persons with prior felony offenses, so he is likely to serve much of his twenty year sentence. Serve-outs are not rare.

So what? What can we learn from this rather mundane, small story that is much like what is occurring everyday throughout the American criminal justice system?

First, Officers Gibson and Stoner could have ignored Thornton's resistance. Happens everyday. Part of the job. Everytime a person whose liberty has been taken, either during an arrest or while being moved inside a jail or prison someone might resist, and a cheek might get bruised. Law enforcement has immense discretion whether to bring a charge or not. Here, because one of them got a bruised cheek, a charge was brought.

The injury was slight. If it was more than a bruised cheek, the charge would have been higher. Why didn't the officer brush this off? Why wasn't this incident dealt with as a jail disciplinary matter?

This was a felony only because Gibson was in a protected class and not because he was seriously injured. Once the charge was lodged, why didn't the prosecutor use her discretion and keep this case out of court?

Thornton was mentally ill. He asserted an insanity defense. He had two prior offenses that likely also involved his mental illness. We can speculate about failed treatment, the effect of our diminished community mental health system, or the fact that our jails are now our largest mental health institutions. The fact is that Gibson and Stoner were moving a mentally ill man in a jail and when he resisted he was charged with an offense carrying a long prison sentence.

We will pay $20,000 per year for up to 20 years for this occurrence. It could cost the taxpayers of Kentucky $400,000 to pay for all of this. We have a budget crisis in Kentucky. We are spending less and less on education, early childhood development, and other social needs. We have a criminal justice system, including the courts and public defenders, starved for resources. But we are willing to spend $400,000 because one day two jail guards were moving a man with a mental illness and he resisted.

What a waste.

New Publication from the Sentencing Project: Ending Mass Incarceration: Social Interventions That Work

Mass incarceration has resulted from a great imbalance in our national approach to public safety, one that relies far too heavily on the criminal justice system. This has produced excessive levels of punishment and a diversion of resources from investments that could strengthen the capacity of families and communities to address the circumstances that contribute to crime.

Research has demonstrated that many social interventions are more cost-effective in producing better public safety outcomes than expanded incarceration. This policy brief discusses various interventions in early childhood education, juvenile justice, and community investment that have been demonstrated to be effective in reducing crime.

Read the full brief here.

NACDL launches resource for Resisting and Challenging Excessive Sentences

From NACDL Press Release:

NACDL is pleased to offer, as a resource for its members and as a service to the public, a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences. The resource – Excessive Sentencing: NACDL’s Proportionality Litigation Project — is available at this link

NACDL President Steven D. Benjamin said: “The United States now leads the world in incarceration, with more than 2.2 million people behind bars, as a result of overcriminalization and excessive sentencing. NACDL’s Excessive Sentencing Project being launched today is the type of resource for practitioners, judges, policy advocates, and the general public that embodies NACDL’s tireless work to fulfill its mission. The tools provided in this expansive online resource will be deployed to improve America’s criminal justice system and will result in more humane, rational and proportional sentencing of those convicted of a crime.”

link to Kentucky resources

KYCOA Feb 15 - Throgmorton - KRS 532.110

Kenneth Throgmorton v. Commonwealth-  

COA, 2/15/13, not to be published-  

The Court remanded the case to the circuit court with directions to enter an order that conforms with the sentencing length restriction in KRS 532.110, as provided in KRS 532.080.  The Circuit Court had run sentences consecutively for cases emanating from two different counties in the judicial circuit for a contemporaneous crime spree.  

At the entry of the first 16 year judgment on four class D convictions, the Circuit Court was silent as to how the sentences from the other county would run.  Two weeks later, in the second county, a total sentence of 16 years was ordered to run consecutive to the 16 years from the other county, for a total of 32 years.  

The Court held such violative of KRS 532.110’s proscription of sentences that would exceed the longest available sentence for one convicted of that class of crime and being a PFO (KRS 532.080).  The Court relied upon the Kentucky Supreme Court’s Opinion in Goldsmith v. Commonwealth, 363 S.W.3d 330 (Ky. 2012), emanating from the same judicial circuit.   

Linda Horsman of the Appeals Branch represented Mr. Throgmorton on appeal, and was assisted by Molly Mattingly, as then-motions attorney, in getting belated appeal granted after the Circuit Court clerk misplaced one of the Notices of Appeal, and Amanda Branham of DPA Paducah, who ably preserved this issue for appeal in circuit court.