Opinion
NO. 2019-CA-000752-MR
02-07-2020
ROY LUKE SUTHERLAND, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Roy Luke Sutherland, Jr., pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 79-CR-001351 OPINION
REVERSING AND REMANDING
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BEFORE: ACREE AND DIXON, JUDGES; BUCKINGHAM, SPECIAL JUDGE. BUCKINGHAM, SPECIAL JUDGE: Roy Luke Sutherland, Jr., appeals from an order of the Jefferson Circuit Court denying his pro se motion pursuant to CR 60.02 for relief from a prison sentence of life plus 40 years following a remand from this Court. We reverse and remand for resentencing.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Kentucky Rules of Civil Procedure.
In late 1979, Sutherland was indicted by a Jefferson County grand jury on charges of murder and first-degree rape. He eventually entered an "open plea" of guilty to the charges with the understanding that the plea agreement sparing him the death penalty was not binding on the court. On November 30, 1981, the trial court sentenced Sutherland to life in prison for murder and 40 years in prison for first-degree rape. The court ordered the sentences to run consecutively.
In the years that followed, Sutherland filed a number of unsuccessful CR 60.02 motions. Another such motion was filed on October 4, 2017. Sutherland argued in that motion that his 1981 sentence was illegal since a sentence to a term of years cannot run consecutive to a life sentence. The court denied the motion, but on appeal this Court remanded the case to the trial court for consideration of Sutherland's CR 60.02 motion under the recent case of Phon v. Commonwealth, 545 S.W.3d 284 (Ky. 2018).
In an order entered on April 24, 2019, the trial court again denied the motion. This pro se appeal by Sutherland followed.
SUTHERLAND'S SENTENCE WAS ILLEGAL
The Commonwealth concedes in its brief that the case must be remanded to the trial court for resentencing. "A sentence that lies outside the statutory limits is an illegal sentence, and the imposition of an illegal sentence is inherently an abuse of discretion." McClanahan v. Commonwealth, 308 S.W.3d 694, 701 (Ky. 2010).
As noted by the Commonwealth in its brief, our Supreme Court held in Phon that the necessity of correcting an illegal sentence overcomes collateral attack procedural bars. "We hold today that a sentence imposed beyond the limitations of the legislature as statutorily imposed is unlawful and void." Phon, 545 S.W.3d at 304. Further, "[i]t is logical that such illegal sentences are considered void and correctable at any time, as contrasted to an attack on the underlying conviction. If the sentence goes beyond the jurisdiction of the court imposing it, then it must be considered a legal nullity." Id. at 305. Also, "[i]llegal sentences must always be correctable. To hold otherwise would fly in the face of the separation of powers doctrine and grant the judiciary powers it was never intended to hold." Id. at 307.
Sutherland's sentence was illegal because the 40-year sentence for first-degree rape should not have been ordered to run consecutive to the life sentence for murder. The sentence violates KRS 532.110 and KRS 532.080 since "no sentence can be ordered to run consecutively with a life sentence in any case." Mabe v. Commonwealth, 884 S.W.2d 668, 673 (Ky. 1994) (citing Bedell v. Commonwealth, 870 S.W.2d 779 (Ky. 1993)). That is the current law, Goben v. Commonwealth, 503 S.W.3d 890, 923 (Ky. 2016), and that was the law in effect at the time Sutherland was sentenced, Shannon v. Commonwealth, 562 S.W.2d 301, 303 (Ky. 1978), overruled on other grounds by Wellman v. Commonwealth, 694 S.W.2d 696 (Ky. 1985). Therefore, this Court must reverse and remand to the trial court for resentencing.
Kentucky Revised Statutes.
SENTENCE TO BE SET ON REMAND
On remand, we direct the trial court to enter an amended sentence of life on the murder charge and 40 years on the rape charge, to run concurrently. In Phon our Supreme Court stated: "Kentucky's courts have implied that, even if an illegal sentence is void, it is void only as to the excess portion of the sentence." Phon, 545 S.W.3d at 306. In Phon the matter was remanded to the trial court for sentencing to life without parole for 25 years in lieu of life without parole. Id. at 310.
Also, in Department of Public Welfare of Kentucky v. Polsgrove, 245 Ky. 159, 53 S.W.2d 341, 342 (1932), the appellate court held: "Sound reasoning and the weight of authority support the rule that the whole sentence is not illegal and void but valid to the extent authorized by the statute." In that case, the maximum sentence for robbery was 10 years, but the defendant had been sentenced to 12 years. Id. The appellate court remanded the case to the trial court for the imposition of a 10-year sentence. Id. at 343.
VALIDITY OF CONVICTION
Sutherland contends that not only was his sentence illegal, but the plea agreement itself was void ab initio and was illegal because he was still subject to the death penalty when he entered his guilty pleas. He contends that United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), is applicable.
In Jackson the defendants were charged under the Federal Kidnaping Act, the applicable portion of which provided that if a defendant was found guilty by a jury, the death penalty could be imposed. Id., 390 U.S. at 571, 88 S. Ct. at 1210. The death penalty could not be imposed, however, for those defendants who pled guilty or waived their rights to a jury trial. Id. The Supreme Court in Jackson held that portion of the statute unconstitutional as being in violation of a constitutional right. Id., 390 U.S. at 572, 88 S. Ct. at 1211.
Sutherland summarizes his argument as follows: "Because the initial plea negotiations were pursued while the death penalty remained a viable sentence, the plea agreement contract must be voided as it is a widely accepted principle in contract law that agreements that run contrary to law, or are designed to avoid the effect of a statute, are illegal and cannot be enforced."
We conclude that the facts in Jackson are sufficiently different from the facts in this case so as to warrant a different result. Under the Federal Kidnaping Act in effect in Jackson, any defendant desiring to assert his right to a trial by jury could potentially receive the death penalty, while those who pled guilty or otherwise waived their rights to jury trials could not. Id., 390 U.S. at 571, 88 S. Ct. at 1210. The Court in Jackson held that the statutory provision was unconstitutional. Id., 390 U.S. at 582-83, 88 S. Ct. at 1217. Here, however, Sutherland was not coerced or enticed to enter a guilty plea to avoid the death penalty; in fact, he entered an "open plea" and could have received the death penalty.
Our Supreme Court in Kentucky has explained the relief to which a defendant is entitled under CR 60.02 when he has received an illegal sentence:
Additionally, there is a fine distinction between a plea for relief from a conviction and relief through remedy of a sentence. In a Kansas Supreme Court case, the Court clarified that correction of an illegal sentence is distinct and separate from a collateral attack on a conviction. Thus, even if CR 60.02 may not apply to judicial errors in attacking a conviction, this is separate and distinct. It is a limited attack on the illegality of a sentence and the remedy is not reversal of a conviction, but correction of a sentence.Phon, 545 S.W.3d at 305 (emphasis in original) (citations omitted).
We reverse the order of the Jefferson Circuit Court denying Sutherland's CR 60.02 motion and remand this case for the resentencing of Sutherland to life on the murder charge and 40 years on the rape charge, with the sentences to run concurrently. Further, we reject Sutherland's argument that the illegal sentence he received in 1981 likewise voids his conviction of the offenses.
ALL CONCUR. BRIEFS FOR APPELLANT: Roy Luke Sutherland, Jr., pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky