Opinion
NO. 2013-CA-000572-MR
06-27-2014
PASCO EDWARD BRAIMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Pasco Edward Braiman LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Tami Allen Stetler Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NOS. 06-CR-000063, 06-CR-000741, 06-CR-001150, 06-CR-002218
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES. DIXON, JUDGE: Appellant, Pasco Braiman, appeals pro se from an order of the Jefferson Circuit Court denying his motion to amend his sentence under CR 60.02. Finding no error, we affirm.
In 2006, Appellant was charged in multiple indictments for numerous counts of first-degree rape, use of a minor in a sexual performance, first-degree sexual abuse, incest, promoting a sexual performance by a minor, and distribution of obscene material to minors. The charges stemmed from acts committed over several years by Appellant and his half-sister/codefendant against their children as well as friends of those children. Ultimately all of the cases under the various indictments were consolidated for trial purposes.
In October 2007, Appellant entered into a plea agreement with the Commonwealth whereby the Commonwealth amended the first-degree rape charge to second-degree rape in exchange for Appellant's guilty plea on all charges. At the subsequent sentencing hearing, the trial court sentenced Appellant to a total of fifty years' imprisonment. Further, the final judgment provided that Appellant would serve the then statutorily-mandated three-year period of conditional discharge following the expiration of his sentence or completion of parole pursuant to KRS 532.043 . Appellant did not file a direct appeal from the judgment, nor did he pursue timely post-conviction relief.
The current version of KRS 532.043 provides for a five-year period of conditional discharge.
On February 12, 2013, Appellant filed a pro se CR 60.02 motion to amend his sentence, arguing that the Kentucky Supreme Court declared the conditional discharge statute unconstitutional in Jones v. Commonwealth, 319 S.W.3d 295 (Ky. 2010), and that such should not be applied to him. Accordingly, Appellant sought to have the conditional discharge requirement removed from his judgment of conviction. Thereafter, on March 4, 2013, the trial court denied the motion, finding that only the revocation proceedings section of the statute was held unconstitutional, with the remaining provisions still in force. Further, the trial court noted that "insofar as the Defendant has neither begun service of nor had his conditional discharge revoked, Jones has no application to the Defendant's present circumstances." Appellant thereafter appealed to this Court.
On appeal, we review the denial of a CR 60.02 motion under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000); Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). As such, we will affirm the trial court's decision unless there is a showing of some "flagrant miscarriage of justice." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
The version of KRS 532.043(5) under which Appellant was sentenced provided, in relevant part:
(5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing to the Commonwealth's attorney in the county of conviction. The Commonwealth's attorney may petition the court to revoke the defendant's conditional discharge and reincarcerate the defendant as set forth in KRS 532.060.However, in Jones v. Commonwealth, 319 S.W.3d 295 (Ky. 2010), our Supreme Court held that subsection (5) violated the separation of powers doctrine by giving the judicial branch rather than the executive branch the power to revoke conditional discharge imposed after a period of incarceration:
This statutory mixture of the role of the judiciary within the role of the executive branch is fatal to the legislative scheme. Section 27 of the Kentucky Constitution creates three distinct branches of government, and Section 28 precludes one branch from exercising any power belonging to the other branches. . . .Jones, 319 S.W.3d 299-300 (footnote omitted). However, the Court specifically set forth that their "ruling [was] limited to KRS 532.043(5)[,]" and went on to opine that "[o]nly the revocation procedure established by this subsection is unconstitutional. Because subsection (5) is severable from the remainder of the statute, the statute's other provisions remain in force." Id. (footnote omitted).
. . . .
The General Assembly can, consistent with the separation of powers doctrine, create a form of conditional release with terms and supervision by the executive branch. However, the statutory scheme runs afoul of the separation of powers doctrine when revocation is the responsibility of the judiciary. Once a prisoner is turned over to the Department of Corrections for execution of the sentence, the power to determine the period of incarceration passes to the executive branch.
The Jones Court clarified that the conditional discharge imposed under KRS 532.043 is a form of post-sentence conditional release unlike the conditional discharge under KRS Chapter 533, which is imposed in lieu of incarceration. 319 S.W.3d at 295, FN 1.
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Subsequently, in 2011 the legislature amended KRS 532.043 and placed revocation authority with the parole board:
(5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing by the Division of Probation and Parole. Notice of the violation shall be sent to the Parole Board to determine whether probable cause exists to revoke the defendant's postincarceration supervision and reincarcerate the defendant as set forth in KRS 532.060.KRS 532.043(5).
Contrary to Appellant's argument on appeal, the amendment to KRS 532.043(5) is clearly not an ex post facto law as it does not "reach[ ] back in time to punish acts which occurred before enactment of the law." 16B Am.Jur.2d Constitutional Law §690 (2013). See also Hyatt v. Commonwealth, 72 S.W.3d 566 (Ky. 2002), cert. denied, 538 U.S. 909 (2003). The 2011 amendment to KRS 532.043(5) merely established a new procedure for adjudicating the revocation of conditional discharge. It did not create a new crime or enhance an existing crime, it did not in itself enhance the penalty for an existing crime, and it did not in any way alter the rules of evidence in regards to the offense charged.
Further, we find no merit in Appellant's claim that because KRS 532.043 (5) does not expressly declare the statute's retroactivity, KRS 446.080(3) bars retroactive application to his sentence. The amendment to subsection (5) is nothing more than a procedural change in response to the Jones decision, reassigning the authority to revoke conditional discharge to the executive branch, or parole board, rather than the judiciary. See Rodgers v. Commonwealth, 285 S.W.3d 740, 741 (Ky. 2009)(Procedures "are to be retroactively applied . . . so that proceedings shall confirm, so far as practicable, to the laws in force at the time of such proceedings.") The Jones Court explicitly held that only the enforcement provision in subsection (5) was unconstitutional and the remainder of the statute remained in full effect. 319 S.W.3d at 300.
In Baker v. Fletcher, 204 S.W.3d 589, 597 (Ky. 2006), our Supreme Court explained, "Though it is clear that the General Assembly must expressly manifest its desire that a statute apply retroactively, magic words are not required. What is required is that the enactment make it apparent that retroactivity was the intended result." Clearly, in enacting KRS 532.043 and its subsequent amendments the legislature expressed its intent to impose additional supervision requirements on individuals convicted of certain felonies. For this Court to interpret KRS 532.043 as lacking an enforcement mechanism would be not only contrary to legislative intent but also to our Supreme Courts reading of KRS 532.043 (1)-(4) and (6) in Jones.
We are not to interpret statutes in such a manner that deprives them of their intended effect either by the addition or omission of language. Commonwealth v. Harrleson, 14 S.W.3d 541 (Ky. 2000). We conclude that the 2011 version of KRS 532.043(5) is not an ex post facto law and its application herein does not warrant amendment of Appellant's sentence.
The order of the Jefferson Circuit Court denying Appellant's CR 60.02 motion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Pasco Edward Braiman
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky