It Ain’t Over Till It’s Over:

Litigating The Non-Capital Sentencing Hearing At Trial

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The verdict comes in…

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Your client expresses his opinion…

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How do you go from this…

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…to this?

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Key statutes Pretrial investigation Pretrial motion practice Trial strategy and tactics

So what do we talk about today?

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Persistent Felony Offender (PFO), KRS 532.080

Parole Eligibility and Violent Offender, KRS 439.340 and 439.3401

Truth in Sentencing (TIS), KRS 532.055

Key Statutes

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Kentucky’s recidivist statute PFO proceeding combined with TIS hearing PFO is a status, not an offense Each element must be proven by CW

beyond a reasonable doubt PFO status affects

◦ Length of sentence◦ Probation eligibility◦ Parole eligibility

KRS 532.080 – Persistent Felony Offender (PFO)

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These statutes establish baseline parole eligibilities

Range from 15% for Class D felons to 85% for Violent Offenders

20% parole eligibility is via regulation, not in statute

Multiple exceptions throughout

KRS 439.340 and 3401: Parole eligibility; Violent Offenders

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Procedure – Establishes the framework for a non-capital sentencing hearing

Admissible evidence – Defines what evidence is admissible in sentencing hearing

KRS 532.055 – Truth-In-Sentencing (TIS) Statute

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Upon return of a verdict of guilty or guilty but mentally ill against a defendant, the court shall conduct a sentencing hearing before the jury, if such case was tried before a jury. In the hearing the jury will determine the punishment to be imposed within the range provided elsewhere by law. The jury shall recommend whether the sentences shall be served concurrently or consecutively.

KRS 532.055(2)

Procedural Framework

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Upon conclusion of the proof, the court shall instruct the jury on the range of punishment and counsel for the defendant may present arguments followed by the counsel for the Commonwealth. The jury shall then retire and recommend a sentence for the defendant.

KRS 532.055(2)(c)

Procedural Framework

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Minimum parole eligibility Prior convictions (both felony and

misdemeanor) Nature of prior offenses Date of commission, sentencing and date of

release from confinement or supervision from all prior offenses

Maximum expiration of sentences for all current and prior offenses

KRS 532.055(2)(a)

Admissible Evidence

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Defendant’s status on probation, parole, postincarceration supervision, conditional discharge, or any other form of legal release

Juvenile felony adjudications of guilt Victim impact evidence, including physical,

psychological, or financial harm

KRS 532.055(2)(a)

Admissible Evidence (cont’d)

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The defendant may introduce evidence in mitigation or in support of leniency.

KRS 532.055(2)(b)

Admissible Evidence (cont’d)

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Non-statutory but allowed by caselaw Parole violations

◦ Garrison v. Com., 338 S.W.3d 257 (Ky. 2011) Statutory good time

◦ Com. v. Higgs, 59 S.W.3d 886 (Ky. 2001) Credit time served

◦ Cornelison v. Com., 990 S.W.2d 609 (Ky. 1999) On the horizon

◦ Probation violations◦ Educational Credits◦ Street credit

Admissible evidence (cont’d)

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Parole statistics◦ Young v. Com., 129 S.W.3d 343 (Ky. 2004)

Evidence we want in but the Court won’t allow

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Prior Convictions

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A judgment is final when:◦ Time for appeal has expired without an appeal.◦ Matter of right appeal affirmed and time for petition for rehearing

has lapsed.◦ Appellate court has granted, and disposed of, Motion for

Discretionary Review.

Admission of a prior conviction is not barred because it is: ◦ Pending a Motion for Discretionary Review◦ Pending an RCr 11.42 motion◦ Pending a CR 60.02 motion

Melson v. Com., 772 S.W.2d 631 (Ky. 1989).

A prior conviction must be a final judgment

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Judgment not yet final Dismissed or merged charges –

◦ Robinson v. Com., 926 S.W.2d 853 (Ky. 1996) Original charges subsequently amended -

◦ Blane v. Com., 364 S.W.3d 140 (Ky. 2012)◦ Chavies v. Com., 354 S.W.3d 103 (Ky. 2011)

Diverted sentences EPO’s DVO’s CPS reports/findings

Not prior convictions:

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As long as a conviction is final before the trial of the present offense, it is admissible as a “prior conviction,” even if the offense date of the prior offense was after the commission of the present offense.

Logan v. Com., 785 S.W. 2d 497 (Ky. App. 1989).

What is a “prior” conviction?

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Q - What if a prior conviction was pending on appeal and was erroneously introduced during TIS phase, but it was subsequently affirmed on appeal?A – Harmless error.

Melson v. Com. 772 S.W.2d 631 (Ky. 1989).

Importance of a contemporaneous objection to a conviction not being “prior”:

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This applies to both felonies and misdemeanors

Contrast this with time limits for PFO

No time limits for admissibility of prior convictions

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Nature of prior offenses

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“The nature of a prior conviction is closely akin, if not identical to, the definition of prior conviction.”

“(E)vidence of prior convictions is limited to conveying to the jury the elements of the crimes previously committed.”

Mullikan v. Commonwealth, 341 S.W.3d 99 (Ky. 2011)

What is “Nature of prior offenses?”

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“We suggest this be done either by a reading of the instruction of such crime from an acceptable form book or directly from the Kentucky Revised Statute itself.”

Mullikan v. Commonwealth, 341 S.W.3d 107 (Ky. 2011)

Procedure for introducing “Nature of prior offenses”

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“[R]ecitation [of the elements] for the jury’s benefit... is best left to the judge. The description of the elements of the prior offense may need to be customized to fit the particulars of the crime, i.e., the burglary was of a building as opposed to a dwelling. The trial court should avoid identifiers, such as naming of victims, which might trigger memories of jurors who may – especially in rural areas – have prior knowledge about the crimes.” Mullikan v. Commonwealth, 341 S.W.3d 109 (Ky. 2011)

Procedure for introducing “Nature of prior offenses”

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“The concern in allowing the prosecutor to read the judgments into the record is that the roles of advocate and witness become blurred.”

Webb v. Com., 387 S.W.3d 319 (Ky. 2012).

Procedure for introducing “Nature of prior offenses”

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Victim Impact Testimony

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“The impact of a crime upon the victim or victims, as defined in KRS 421.500, including a description of the nature and extent of any physical, psychological, or financial harm suffered by the victim or victims” may be offered by the Commonwealth relative to sentencing.

KRS 532.055(2)(a)(7)

Victim Impact Testimony

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“[V]ictim” means an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime classified as stalking, unlawful imprisonment, use of a minor in a sexual performance, unlawful transaction with a minor in the first degree, terroristic threatening, menacing, harassing communications, intimidating a witness, criminal homicide, robbery, rape, assault, sodomy, kidnapping, burglary in the first or second degree, sexual abuse, wanton endangerment, criminal abuse, human trafficking, or incest. If the victim is a minor or legally incapacitated, “victim” means a parent, guardian, custodian or court-appointed special advocate.

KRS 421.500

Victim defined particularly:

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Pretrial Investigation: Mitigation

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Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.

ABA Criminal Justice Standards: Defense Function 4.1

Ethical Obligation

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“The defendant may introduce evidence in mitigation or in support of leniency.”

KRS 532.055(2)(b): Mitigation

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Use capital litigation as template

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Intellectual disability Mental illness Raised in poverty; neglect Abusive upbringing Single parent household Substance abuse history for defendant or in

family Lack of education

Mitigation Evidence: Challenges in Defendant’s life

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Lack of prior record Did well in school, athletics, etc. Family, community support Good employment history Supports family, dependents Loving parent Military service Good institutional record

Mitigation Evidence: Strengths in a Defendant’s Life

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Family Friends Former teachers Former counselors Ministers Coaches

Defense witnesses

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Short Simple Evocative Emotional

Never underestimate the power of small stories

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Prison conditions Lack of programs Classification into county jail for entirety of

sentence

Institutional issues as mitigation

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Prison retirees◦ Wardens◦ Counselors ◦ Guards

Ex-inmates

Institutional issues: Get a witness

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Have you got all the material you are entitled to?

Have you insured that only admissible evidence is introduced?

Pretrial Motion Practice: Two goals

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Make the Commonwealth provide documents relevant to sentencing hearing

◦ Documents they intend to introduce◦ Documents they intend to rely upon

Be aware of your own Reciprocal Discovery obligations

Discovery Issues

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File Motion To Compel Discovery File Motions In Limine File Motions To Exclude

Consider NOT filing a motion

If Commonwealth doesn’t provide records:

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Court documents are public records; as available to defense as to Commonwealth

Defendant is aware of his own criminal record

Commonwealth’s Position:

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“… Appellant was entitled to production of the theft by deception conviction before her trial began. We reject the Commonwealth's assertion that no error occurred because Appellant was aware of her prior conviction… the premise underlying RCr 7.24 is not only to inform the defendant of her prior convictions (of which she should be aware), but to inform her that the Commonwealth has knowledge thereof.”

Baumia v. Com., 402 S.W.3d 530, 544-45 (Ky. 2013)

Commonwealth is wrong

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That in the event that defendant is convicted of the charges alleged here, pursuant to KRS 532.055, defendant be entitled to inspect and copy all documents which would be used to establish any prior conviction to be introduced under KRS 532.055. In addition, defendant is entitled to evidence which the Commonwealth intends to introduce regarding minimum parole eligibility, the nature of prior offenses for which defendant was convicted, the court, docket number and date of any prior conviction, the date of the commission, date of sentencing, and date of release from confinement or supervision from all prior offenses, the maximum expiration of sentence as determined by the Commonwealth for all such current and prior offenses, and defendant's statutes if on probation, parole, conditional discharge, or any other form of legal release. Because KRS 532.055 gives the defendant the right to introduce evidence in mitigation, defendant also moves for any exculpatory evidence, including whether the charges for which the defendant has been previously convicted differ in any way from the crimes originally charged, all evidence of an exculpatory nature in relation to the original charges, all evidence of any specific treatment received by defendant during prior incarceration concerning mental or emotional problems, and any indication that any prior pleas of guilty were entered without counsel or full advisement of all constitutional rights.

8 Ky. Prac. Crim. Prac. & Proc. § 21:45 (5th ed.)

From Prof. Abramson:

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Admissibility Issues

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The PFO Statute – KRS 532.080; or The TIS Statute – KRS 532.055

Records must be admissible under either:

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PFO◦ Defendant’s age ◦ Length of prior terms ◦ Dates of prior convictions; release from prison, probation, etc. ◦ Status of defendant at time of commission of new offense

TIS◦ Minimum parole eligibility◦ Prior convictions (felony and misdemeanor)◦ Nature of prior offenses (elements only)◦ Date of commission of prior offenses◦ Date of sentencing of prior offenses◦ Date of release from confinement or supervision from prior offenses◦ Maximum expiration of sentences (current and priors)◦ Defendant’s status if on probation, parole, etc.◦ Adjudications of guilt for felonies in juvenile court

Make a checklist derived from the statutes:

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A document is inadmissible unless:

It proves at least one statutory element on the checklist; and

It only proves a statutory element on the checklist.

Limiting Principle

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Uncertified records not admissible◦ Robinson v. Com., 926 S.W.2d 853 (Ky. 1996)

Courtnet printouts not admissible◦ Finnell v. Com., 295 S.W.3d 829 (Ky. 2009)

Insist that only CERTIFIED records be introduced or relied upon

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Irrelevant Prejudicial Contain hearsay Potential to confuse jury

Argue against introduction of documents themselves

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The entire record Indictment Plea sheets Probation revocation documents Judgments

Guard against Commonwealth overkill:

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To Exclude Dismissed charges Original charges prior to amendment Plea sheets Discovery MotionsTo Redact Judgments Shock probation orders Revocation documents

Motions In Limine RE: Records and Documents

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No details of prior crimes◦ Name of victim◦ Status of victim◦ Type of weapon

Be particularly sensitive to this issue where prior conviction had sympathetic victims, salacious, etc.

May be greatest danger on misdemeanors where charging document is arrest slip

Motions In Limine RE: Nature of prior offenses

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Victim Impact Testimony

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…stalking, unlawful imprisonment, use of a minor in a sexual performance, unlawful transaction with a minor in the first degree, terroristic threatening, menacing, harassing communications, intimidating a witness, criminal homicide, robbery, rape, assault, sodomy, kidnapping, burglary in the first or second degree, sexual abuse, wanton endangerment, criminal abuse, human trafficking, or incest. KRS 421.500

Victim impact testimony limited to…

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Theft CPFI Receiving Stolen Property Arson Burglary Third Sexual Misconduct Witness Tampering Bribery Perjury KRS 421.500

Definition of “victim” does not include these crimes:

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In Brand v. Com., 939 S.W.2d 358 (Ky. App. 1997) Ct of App. held that victim impact testimony from Burg. 3rd was admissible

BUT, Brand not a TIS case; it involved judge sentencing upon a guilty plea. KRS 532.055 not even mentioned.

Don’t let the CW cite Brand

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Don’t let victim testify about impact of crimes for which

your client was just acquitted

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Scenario 1◦ Client is tried for Rape and Robbery 1st

◦ Jury acquits of Rape; convicts on Robbery 1st ◦ Victim can testify about effects of Robbery 1st, not

Rape Scenario 2

◦ Client is tried for Rape, Robbery 1st ◦ Jury acquits of Rape; convicts on lessor (TBUT)

instead of Robbery 1st ◦ Victim doesn’t testify at all

Examples

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Spouse Adult child Parent Sibling Grandparent

If “victim” is deceased, the following are designated as “victims”

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Girlfriends/boyfriends Fiancées Roommates Friends Aunts, uncles, cousins, etc. Teachers Coaches

McGuire v. Com., 368 S.W.3d 100 (Ky. 2012)

If they aren’t on that list, they don’t testify

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That only “victims” testify That they testify only to direct harm to

selves No description as to effects of crime on

others Not cumulative No opinions/recommendations regarding

punishment Cannot directly address the defendant

Motions in Limine Re: Victim Impact Testimony

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Prior conviction where judgment is otherwise final is admissible

Hot issues for collateral attack◦ Farreta issues◦ Collateral consequences

Pretrial Collateral Attack:

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Cross Examination

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Maximize penalties client facing Reduce discretion of court or parole board Reduce likelihood of parole Any credits, reductions, etc. contingent on

defendant working for them Make reductions in sentence only possible,

not probable

Thrust of Cross:

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Documentary – Judgments, ages, dates of conviction, etc. Usually court clerk, CW paralegal

Based in statute/regulation – Parole eligibility, credits, etc. Usually Probation and Parole Officer

Victim impact

Cross examination: Three Clusters

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Was not a crime(s) of violence Defendant young when occurred Offenses arose out of one transaction Priors show underlying substance abuse

issue Extended periods between offenses If on probation/parole:

◦ Successfully completed supervision◦ Violations were technical/not for new crimes

Cross Examination: Court Clerk; CW paralegal

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Eligibility does not mean release 85% means 85% Poor institutional record hurts chances for release If released, will be on supervision New conviction will have to run consecutive to prior

sentences Prior sentences have been/in process of being revoked Defendant not eligible for probation, shock probation,

etc.

Cross Examination: Probation and Parole Officer

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Parole eligibility Credit Concurrent/consecutive

Cross on their mistakes, BUT ONLY IF THE MISTAKES HURT YOU

The mistaken witness

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Default Position: No cross

Cross Examination: Crime Victim

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Cons◦ You can’t relitigate guilt◦ Victim is naturally sympathetic◦ Generally, very little to impeach with

Pros◦ Witness may open door to character, etc.◦ May be specific losses open to dispute (amount of

lost wages, property insured, etc.)

Issues on crossing the victim

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Will sentencing testimony be consistent with case-in-chief?

Will sentencing testimony be cumulative? Did client already testify?

Can others tell story instead of client? Will you open door to otherwise

inadmissible evidence? Can client say he’s sorry? Should he? Can client project appropriate demeanor?

Should the client testify?