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Issue link: https://kentuckybenchandbar.epubxp.com/i/104896
was caught dealing drugs and was otherwise eligible for a Persistent Felony Offender in the Second Degree (hereinafter "PFO II") penalty enhancement. The jury recommended a sentence of 10 years each on both counts of TICS I, enhanced the sentences to 20 years on each count through the PFO II statute, and ran the two sentences consecutively for a total sentence of 40 years.24 This sentence was well beyond the "cap" statute that caps all possible sentences for Class D and Class C felonies at 20 years. Thus the Blackburn Court took up the lingering question left unaddressed by the Peyton decision and considered the interplay between the two sentencing statutes: KRS § 533.060 and KRS § 532.110(1)(c). The Court's analysis began by reaffirming its view of the Devore rule by citing Justice Liebson's dissent in Devore as the proper interpretation and application of KRS § 533.060.25 Then, the Blackburn Court held that the Devore rule requiring all new felonies to run consecutively to each other and consecutive to the underlying sentence created "incongruous and excessive sentencing results" that imputed a "much heavier hand" to the legislature than was intended when it enacted KRS § 533.060 to punish repeat offenders and those who picked up new felonies while on probation/parole.26 The Blackburn Court bolstered this understanding by echoing the holding in Peyton and the logic espoused by Justice Liebson in the Devore dissent as "provid[ing] an inherently more practical understanding" of the language in KRS § 533.060 as the phrase "with any other sentence" means only the "unserved portion of the sentence for the felony for which probation or parole should be revoked."27 As a result, the Blackburn Court concluded that nothing in KRS § 533.060, Devore, or Peyton would bar the application of the "cap" statute to new felonies. Therefore, the Court overruled Devore to the extent that the sentences for felonies committed while on probation/parole must run 20 Bench & Bar January 2013 consecutively regardless of the term of years and applied the 20 year cap for all Class D and Class C felonies,28 even if they are committed while the defendant is on probation or parole.29 Even though the Court had espoused the jury's right to set sentencing in Peyton, and specifically pointed out how it decreases the integrity of the judicial system when you give jurors an option then take it away, pursuant to Blackburn, the "cap" statute still applies.30 Per Blackburn, the jury can still recommend that sentences run consecutively or concurrently, but the term of years may not exceed more than 20 years on Class C and Class D felonies. The Blackburn Court reasoned that jurors must make sentencing decisions "within the range provided" by the law.31 Conclusion For the criminal practitioner, this will have a major impact on how cases will be negotiated moving forward. The Blackburn ruling changes the starting point and sentencing range for all defendants who fall into this specific criminal population. Now, no matter how many different Class C or Class D felonies a person commits 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. This is important as the overwhelming majority of cases settle through plea agreements, with such settlements being based upon the understanding of the total sentence range a defendant could face if they proceeded to a jury trial. The Blackburn rule has significantly reduced the amount of years a defendant could possibly face when he/she commits felonies while on probation or parole. Ostensibly, over the long run, this ruling will have the effect of reducing the punishment value of Class C and Class D felonies, and thus prosecutors and defense attorneys around the state will be resolving cases with lesser sentences. Also, by removing the possibility of a jury recommending a term of years that falls outside the sentence limit of the "cap" statute, the Blackburn rule limits the jury's ability to recommend a proper punishment for the crime committed. In Kentucky, the jury is the trier of fact and the jury is vested with recommending a punishment it deems appropriate. By restricting the jury to a cap of 20 years on Class D and Class C felonies for defendants on probation or parole, the Court could possibly restrict the jury's ability to set a term of punishment it deems appropriate for the crime in which it sat in judgment. As to the reason why the Court reversed its position on the Devore rule, I cannot say with assurance. However, I respectfully suggest that the chilling effect on the number of years that can be sentenced for Class C and D felonies was an expected result, as Courts do not issue rulings in a vacuum. In fact, the ruling makes sense in light of the fiscal crisis presented by the overpopulation of the Kentucky prison population. As it stands, feeding and housing over 22,000 inmates in Kentucky prisons costs over $450 million dollars each year.32 Costs have skyrocketed to those figures as the prison population has dramatically increased over the past 10 years.33 For example, in the time period between 2000 and 2009, the average number of inmates in Kentucky prisons rose by 49 percent.34 Likewise, the annual costs of housing and feeding that many people increased 53 percent over the same time period, thus raising Department of Corrections' costs from $294 million in John J. Balenovich is an assistant commonwealth attorney for the 30th Judicial Circuit in Louisville. Balenovich is licensed in Kentucky and West Virginia and is a member of the Louisville and Kentucky Bar associations. After graduating from Bellarmine University, Balenovich obtained his law degree from the University of Louisville Louis D. Brandeis School of Law and earned a MS in Justice Administration from the University of Louisville.