The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/104896
CORRECTIONS Three Strikes and You're Safe: How Kentucky's New Sentencing Policy Lets Repeat Offenders Avoid the Grand Slammer By John J. Balenovich E very day, prosecutors and defense attorneys across the Commonwealth sit down with defendants to discuss plea bargains. Two important tools at the prosecutor's disposal are the ability to offer plea agreements that take different stances on probation as well as the ability to make offers that contemplate different penalty ranges either through amendments or penalty enhancements like the Persistent Felony Offender statute. When the defendant is on probation or parole and charged with multiple counts, such options are of even a greater incentive to settle rather than run the risk of sending the case to the jury for trial and sentencing. A recent decision from the Kentucky Supreme Court has severely weakened the prosecutor's ability to use the threat of larger penalties handed down by juries as an incentive for the defendant to plead guilty to a lesser sentence recommendation, which necessarily will reduce the overall sentence lengths for a particular segment of the criminal population moving forward. In Blackburn v. Commonwealth,1 the Kentucky Supreme Court took a major U-turn in Kentucky sentencing policy when dealing with defendants who commit multiple and contemporaneous Class D and/or Class C felonies while they are on probation or parole. This shift in sentencing policy significantly reduces possible sentences for convicted felons who commit felonies while on state supervision. Blackburn does away with 20 years of case law and, instead, applies the "cap" statute found in KRS ยง 532.110 to cap the possible sentences on all Class C and D felonies at a maximum of 20 years, regardless of the number of new charges the defendant picked up while on probation or parole supervision. The Blackburn Court changed Kentucky law by overruling Devore v. Commonwealth,2 which woodenly had held that courts must impose consecutive sentences on defendants convicted of multiple contemporaneous felonies while on probation or parole, regardless of the number of years recommended by the jury. As the law now stands, Blackburn caps all sentences for multiple and contemporaneous Class C and Class D felonies committed by a person on probation or parole at 20 years, in effect requiring that the sentences for multiple felonies run concurrent, and possibly disregarding the jury recommendation. Since the most common type of felony committed by felons under supervision are Class C and Class D felonies, this ruling significantly reduces the amount of years a repeat offender could face at sentencing for new crimes committed while on probation. To better understand the gravity of the Court's new position, a hypothetical situation is helpful. John has been convicted of a felony in the past and, after serving part of his sentence, he was granted parole by the parole board. During John's parole period, he was charged with, and convicted of, two counts of Class C Trafficking in a Controlled Substance in the First Degree ("TICS I"). Those felonies carry a sentence of five to 10 years a piece. During the sentencing phase, the jury further found John guilty as a Persistent Felon in the First Degree ("PFO I"), enhancing the sentence range to 10 to 20 years on each count. The jury deliberated and handed down the maximum sentence of 20 years on both counts of TICS I and further decided to run the sentences consecutively for a total of 40 years. Under Devore, the judge was required to sentence the multiple felonies consecutively, not only as punishment for the crimes themselves, but also as punishment for committing crimes while on probation or parole. Thus, John's total sentence under the Devore rule would have been 40 years. January 2013 Bench & Bar 17