Opinion
NO. 2011-CA-002117-MR
03-29-2013
BRANDEN T. BALDRIDGE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Linda Roberts Horsman Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE GEORGE DAVIS, JUDGE
IINDICTMENT NO. 09-CR-00291
OPINION
REVERSING AND REMANDING
BEFORE: KELLER, LAMBERT, AND MOORE, JUDGES. LAMBERT, JUDGE: Branden Baldridge appeals from the judgment of the Boyd Circuit Court finding him guilty of complicity to commit burglary in the first degree and criminal mischief in the first degree. Baldridge was sentenced to ten years' imprisonment and must serve 85% of that sentence before being considered for parole, due to his classification as a violent offender. Baldridge argues that the trial court erred when it determined that he was a violent offender and designated him as such in the final judgment without submitting the issue to a jury. Because we agree with Baldridge that a palpable error occurred, we reverse and remand.
On June 14, 2009, Ashleigh Smith arrived at her home in Boyd County and noticed a strange vehicle parked in her driveway. The same bright blue truck had been at her residence previously, and a man knocked on her door but left when she kicked the door and her dog barked. Thus, when she saw the bright blue truck again, she immediately became suspicious and did not pull into her driveway, but instead pulled to the side of the road and phoned relatives. When her relatives arrived, they all proceeded down her driveway. As the family pulled up outside the trailer home, they observed two men run from behind the trailer and jump into the blue truck. The driver of the truck backed up, hitting a sandbox, and then he gunned the engine and the tires spun on the gravel. The truck came towards them, and it glanced off Ms. Smith's aunt, Juanita Holbrook's, car. Ms. Smith's uncle, Paul Bartley, Jr. (Mr. Bartley) ran toward the truck, as if to stop it. The truck did not stop. Mr. Bartley jumped onto the hood, smashing the windshield with the impact of his body. Mr. Bartley was thrown to the ground as the truck continued driving away from Ms. Smith's home. The parties noted the license plate number of the truck and tended to Mr. Bartley until the police arrived.
Mr. Bartley was checked by paramedics, but because his wife was recovering from surgery herself, he did not want her to get a call from someone else telling her that he was at the hospital, so he went home prior to being driven to the hospital. An examination revealed that both of his shoulders were damaged, and it was later determined he suffered permanent loss of range of motion in his left shoulder. His leg, arm, chest, and face also have permanent scars from the impact with the windshield and the glass imbedded in his skin. The eyeglasses he was wearing were never recovered, and the hat he was wearing was recovered by police in the back of the blue truck the appellant, Baldridge, was driving. A local body shop repaired Ms. Holbrook's car, which suffered damages of over two thousand dollars.
Baldridge and a co-defendant were later apprehended. Baldridge told police he was not involved in the burglary in the home, that he only drove the truck used in the burglary. Baldridge was charged by criminal information with first-degree burglary and first-degree criminal mischief for the damage to Ms. Holbrook's car. The jury found Baldridge guilty of complicity to commit burglary in the first degree and criminal mischief in the first degree, as stated above. Prior to the sentencing phase, the Commonwealth asked the trial court to make a ruling, as a matter of law, as to whether Mr. Bartley suffered serious physical injuries. The Commonwealth tendered a copy of the unpublished opinion of the Kentucky Supreme Court in Clay v. Commonwealth, 2008 WL 2167892 (Ky. 2008), arguing that Clay made it clear that the trial court should determine whether Mr. Bartley suffered a simple physical injury or a serious physical injury for purposes of Kentucky Revised Statutes (KRS) 439.3401. If Baldridge was found to have inflicted a serious physical injury, Baldridge would be considered a violent offender by the Department of Corrections and would thus have to serve 85% of his sentence before being eligible for parole.
The trial court found that Clay made it clear that the trial court was the finder of fact on the question of whether a simple physical injury or a serious physical injury had been suffered. The trial court instructed that defense counsel could question a probation and parole officer who testified in the penalty phase about the consequences to Baldridge if the court were to find him to have caused serious physical injury and thus be classified as a violent offender. Defense counsel stated that she did not think she was entitled to a jury instruction on the issue, based on the statute. Otherwise, there was no objection to the trial court's ruling or the Commonwealth's request for a finding on the serious physical injury issue.
The jury recommended a sentence of ten years, running the minimum sentences for both offenses concurrently. Baldridge now appeals, arguing that the trial court erred when it determined that it was the proper party to determine whether Mr. Bartley suffered a serious physical injury. Because his original trial counsel did not properly preserve the issue and actually stated that she did not think Baldridge was entitled to a jury instruction on the issue, Baldridge acknowledges that his argument is not preserved for review. He urges this Court to review for palpable error under Kentucky Rules of Criminal Procedure (RCr) 10.26.
Under RCr 10.26, an unpreserved error may be noticed on appeal only if the error is "palpable" and "affects the substantial rights of a party," and even then relief is appropriate only "upon a determination that manifest injustice has resulted from the error." An error is palpable if it "affects the substantial rights of a party" and if "it is more likely than ordinary error to have affected the judgment." Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005). An unpreserved error that is both palpable and prejudicial still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice, unless, in other words, the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
We agree with Baldridge that a sentencing error, or a clerical error that results in a sentencing error, such as being designated a violent offender, qualifies as a palpable error and warrants our review.
In particular, Baldridge argues that the trial court erroneously determined that he was a violent offender in the final judgment and sentence of conviction. Baldridge argues that this determination should be made by a jury and not by the trial court.
The applicable statute, KRS 439.3401, states:
(1) As used in this section, "violent offender" means any person who has been convicted of or pled guilty to the commission of:(Emphasis added). Baldridge contends that Kentucky case law indicates that the jury must determine whether a serious physical injury occurred, as opposed to the trial court making that designation. Baldrige argues that the judge noting the occurrence of a serious physical injury on the final judgment is clerical in nature, and that the Department of Corrections then uses this notation when it classifies inmates as violent offenders.
(a) A capital offense;
(b) A Class A felony;
(c) A Class B felony involving the death of the victim or serious physical injury to a victim;
(d) The commission or attempted commission of a felony sexual offense described in KRS Chapter 510;
(e) Use of a minor in a sexual performance as described in KRS 531.310;
(f) Promoting a sexual performance by a minor as described in KRS 531.320;
(g) Unlawful transaction with a minor in the first degree as described in KRS 530.064(1)(a);
(h) Human trafficking under KRS 529.100 involving commercial sexual activity where the victim is a minor;
(i) Criminal abuse in the first degree as described in KRS 508.100;
(j) Burglary in the first degree accompanied by the commission or attempted commission of an assault described in KRS 508.010, 508.020, 508.032, or 508.060;
(k) Burglary in the first degree accompanied by commission or attempted commission of kidnapping as prohibited by KRS 509.040; or
(l) Robbery in the first degree.
The court shall designate in its judgment if the victim suffered death or serious physical injury.
(2) A violent offender who has been convicted of a capital offense and who has received a life sentence (and has not been sentenced to twenty-five (25) years without parole or imprisonment for life without benefit of probation or parole), or a Class A felony and receives a life sentence, or to death and his sentence is commuted to a life sentence shall not be released on probation or parole until he has served at least twenty (20) years in the penitentiary. Violent offenders may have a greater minimum parole eligibility date than other offenders who receive longer sentences, including a sentence of life imprisonment.
(3) A violent offender who has been convicted of a capital offense or Class A felony with a sentence of a term of years or Class B felony who is a violent offender shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed.
(4) A violent offender shall not be awarded any credit on his sentence authorized by KRS 197.045(1)(b)1. In no event shall a violent offender be given credit on his sentence if the credit reduces the term of imprisonment to less than eighty-five percent (85%) of the sentence.
(5) This section shall not apply to a person who has been determined by a court to have been a victim of domestic violence or abuse pursuant to KRS 533.060 with regard to the offenses involving the death of the victim or serious physical injury to the victim. The provisions of this subsection shall not extend to rape in the first degree or sodomy in the first degree by the defendant.
(6) This section shall apply only to those persons who commit offenses after July 15, 1998.
(7) For offenses committed prior to July 15, 1998, the version of this statute in effect immediately prior to that date shall continue to apply.
(8) The provisions of subsection (1) of this section extending the definition of "violent offender" to persons convicted of or pleading guilty to robbery in the first degree shall apply only to persons whose crime was committed after July 15, 2002.
Baldridge urges this Court to review several unpublished cases by the Kentucky Supreme Court addressing the existence of a serious physical injury under KRS 439.3401. In Rogers v. Commonwealth, 2003 WL 22974913, 4-5 (Ky. 2003), the Court held that a trial court erred in designating a defendant as a "violent offender" on multiple counts when the jury was only charged with determining whether serious physical injuries were inflicted on one offense.
As earlier explained, Appellant was originally charged with inflicting serious physical injury in the course of committing first-degree robbery and attempted murder. That indictment was amended to eliminate the serious physical injury element, and Appellant was indicted again and charged with infliction of serious physical injury in the course of committing first-degree assault. In this posture the case went to trial and the instructions on criminal attempt to commit murder and first-degree robbery were without any serious physical injury element. The only instruction that permitted a finding of serious physical injury was the first-degree assault instruction. Appellant was determined to be guilty of all three crimes with the court entering judgment on attempt to commit murder and first-degree robbery, and a separate judgment on first-degree assault.(Citations and footnotes omitted).
Despite the amended indictment that omitted serious physical injury from the first-degree robbery charge and the failure to include serious physical injury as an element in either the first-degree robbery or the attempted murder instructions, the trial court designated all three offenses as violent offenses, yet in only one of those offenses was there a finding of serious physical injury. Under the prevailing statute, there must be a death or a serious physical injury related to the commission of a Class B felony (first-degree robbery and attempted murder) if it is to be treated as a violent offense. Here the jury found that Appellant caused serious physical injury to the victim only while committing assault in the first degree. As to the other convictions, a violent offense designation was not available. Accordingly, it was error to designate the attempted murder conviction and the first-degree robbery conviction as violent offenses.
The Supreme Court affirmed the holding in Rogers and in Floyd v. Commonwealth, 2009 WL 736002 (Ky. 2009). There, the appellant was indicted for multiple offenses, including rape in the first degree and burglary in the first degree. At trial, however, he was acquitted of the rape charge, and the jury was not charged with qualifying whether the victim of his burglary suffered serious physical injuries. Id. at *9. The Court held it was error to designate Floyd as a violent offender because there had been no finding by a jury that he had caused a serious physical injury while committing burglary in the first degree.
Although Floyd was convicted of first-degree burglary, a Class B felony, he correctly observes that by itself that fact does not render him a "violent offender," and he contends that none of the other necessary conditions applies: he was acquitted of rape, was not charged with, much less convicted of, either another sexual offense, assault, kidnapping, or robbery, and, he claims, he did not seriously injure D.W.Id. at 10-11. (Emphasis added).
The Commonwealth rejoins that Floyd's burglary may be deemed to have been "accompanied" by a qualifying assault, since Floyd admitted that he struck and strangled D.W. and the evidence showed that he injured her. It also insists that D.W.'s injuries may be deemed "serious" under the statute. We disagree with both of these arguments.
Addressing the Commonwealth's second argument first, we may begin by noting, as do the parties, that the statute requires a "serious physical injury," not just a physical injury and that under the Penal Code "serious physical injury" means
physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or
impairment of the function of any bodily organ.KRS 500.080(15). Floyd contends that his choking and striking of D.W. did not leave her disfigured or impaired, and, he insists, it did not result in an injury which posed a substantial risk of death. He notes further that under the burglary instruction the jury found only that he injured D.W., not that he seriously injured her, and that the court's judgment failed to designate that D.W. suffered a serious physical injury.
We agree with Floyd that the Penal Code definition of "serious physical injury" is appropriately applied to the non-Penal Code violent offender statute inasmuch as absent some clear indication to the contrary the General Assembly may be presumed to have intended the two provisions to harmonize. See Brooks v. Commonwealth, 114 S.W.3d 818 (Ky. 2003) (applying the KRS 500.080 definition).
We further agree that the trial court lacked grounds for believing that D.W.'s injury was "serious" for statutory purposes. There was no proof that D.W.'s injuries had a prolonged effect, nor were the injuries themselves-the abrasions and contusions to D.W.'s face, neck, and wrists-life-threatening. Although Floyd's attack was certainly violent enough to threaten death, it is "the severity of the resulting injury rather than . . . the nature of the attack," that is the test for "serious physical injury" under the Penal Code. Commonwealth v. Hocker, 865 S.W.2d 323, 325 (Ky. 1993); Luttrell v. Commonwealth, 554 S.W.2d 75 (Ky. 1977). We agree with Floyd, accordingly, that he may not be deemed a violent offender for having inflicted a "serious physical injury."
With respect to the Commonwealth's argument that Floyd's burglary may be deemed to have been accompanied by an uncharged assault-we are convinced that the statutory "accompanied by" means, rather, that the conviction for first-degree burglary is accompanied by a conviction for one of the other designated offenses. The statutory requirement of a "commission or
attempted commission" of the companion offense connotes a jury determination that the offense was committed or attempted. Otherwise the trial court would be thrust into an inappropriate role as fact finder.
Applying Roger and Floyd to the instant case, Baldridge was charged with complicity to commit first-degree burglary and the jury was instructed that in order to find him guilty, among other things, it had to find that "when in effecting entry or while in the building or in immediate flight there from, he or another participant in the crime caused physical injury to a person who was not a participant in the crime." A serious physical injury was not an element of burglary in the first degree or criminal mischief in the first degree, the only two crimes with which Baldridge was charged. Thus, because the jury did not determine that a serious physical injury was inflicted concurrently with the offense, it was error for the trial court to designate Baldridge as a violent offender in the final judgment and order. The jury was permitted to hear evidence of Mr. Bartley's injury after the guilty phase, during the sentencing phase, but the Commonwealth did not prove this as part of its case in chief, and the trial judge noted on the record that he was the fact-finder as to the serious physical injury. We agree with Baldridge that this is not in keeping with the Kentucky Supreme Court's jurisprudence on this issue, albeit in all unpublished opinions. Until the Court clarifies the issue, we are bound to follow the limited case law on the subject.
Because the trial court improperly determined that a serious physical injury was suffered by the victim, as opposed to the jury making the determination that a serious physical injury occurred during the commission of the charged offenses, we must reverse. Being sentenced as a violent offender subjects Baldridge to a longer sentence before being eligible for parole and prevents him from being eligible for probation. This amounts to a palpable error and affects Baldridge's substantial rights. Accordingly, we reverse the trial court's order indicating that Baldridge is a violent offender and remand for proceedings consistent with this opinion.
KELLER, JUDGE, CONCURS.
MOORE, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Linda Roberts Horsman
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky