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Issue link: https://kentuckybenchandbar.epubxp.com/i/104896
to run all subsequent sentences for crimes committed while on probation/parole consecutively.12 Instead, the Court held that the Devore rule was not a requirement but merely an option at the discretion of the trial court when sentencing repeat felons.13 The Peyton Court determined the Devore rule was an "unworkable interpretation of KRS § 533.060(2)."14 The problem with Devore, as the Peyton Court saw it, is that the language of the statute was being improperly construed to require all contemporaneous felonies while committed on probation/parole to run consecutively with each other. However, the plain language of the statute does not say that. Instead, the statute simply states that subsequent felonies committed while on probation/parole "shall not run concurrently with any other sentence."15 Citing Justice Liebson's logic in the Devore dissent, the Peyton Court stated the reasonable and "inherently more practical" interpretation of that language in KRS § 533.060(2) is that the new felonies shall not run concurrently with the sentence for which the defendant is already on probation/parole.16 Thus, the Court ruled the subsequent felonies committed while on "probation or parole . . . may be run either consecutively or concurrently" according to the jury's recommendation and Court's discretion.17 However, the new felonies cannot be run concurrently with the previous felony for which the defendant was on probation.18 In addition to freeing up options at sentencing, Peyton also marked a seminal victory for the jury by defining and reaffirming its role and powers in our courts and sentencing. The Peyton Court encouraged trial courts in Kentucky to follow the recommendation of the jury when setting sentences on crimes in which the jury was the trier-of-fact. Peyton likewise dispelled the practice of the trial court's disregarding of a jury's sentence recommendation and instead imposing consecutive sentences as a matter of statutory course. Thus, Peyton established a simple framework to follow; when a defendant on probation/parole is convicted of multiple and contemporaneous convictions for subsequent felonies, the jury retains the discretion to recommend consecutive or concurrent treatment per their statutory right.19 The Peyton Court was unequivocal in its view that justice demands deference to the jury's sentence recommendation because "the judiciary is duty-bound to maintain credibility with the jurors of this Commonwealth."20 The Court further reasoned as follows: [T]he Commonwealth's courts should not instruct a jury that they have options in relegating a sentence for a criminal defendant, and then take these options away. It is incumbent upon this Court to ensure that the People have confidence in their judiciary. Therefore, if we instruct the jury that they have the power to recommend a sentence with one hand, and then take that decision away from them with the other, we have failed in our task to uphold the mandates and ideals of the Constitution.21 One area the Court specifically did not address was the interplay between KRS § 533.060 and the "cap" statute, KRS § 532.110(1)(c) because the jury had imposed a sentence allowed under the "cap" statute.22 Blackburn v. Commonwealth The Blackburn decision dialed back some of the Peyton Court's enthusiasm for jury power in sentencing and overruled 20 years of precedent by imposing a new wooden rule making all sentences for multiple contemporaneous felonies committed by a person on probation subject to the cap statute.23 Hence, no matter how many different Class C and Class D felonies a person committed while on probation or parole, and no matter how the jury thinks the defendant should be punished, the total sentence is capped at 20 years. In Blackburn, the defendant was convicted of two counts of Trafficking in a Controlled Substance in the First Degree (hereinafter "TICS I"). The defendant was on parole at the time she January 2013 Bench & Bar 19