Opinion
2023-SC-0218-MR
08-22-2024
JONATHON BRYANT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: SHANNON RENEE DUPREE ASSISTANT PUBLIC ADVOCATE COUNSEL FOR APPELLEE: RUSSELL M. COLEMAN ATTORNEY GENERAL OF KENTUCKY MATTHEW ROBERT KRYGIEL ASSISTANT ATTORNEY GENERAL
NOT TO BE PUBLISHED
ON APPEAL FROM ADAIR CIRCUIT COURT HONORABLE JUDY VANCE MURPHY, JUDGE NO. 22-CR-00157
COUNSEL FOR APPELLANT: SHANNON RENEE DUPREE ASSISTANT PUBLIC ADVOCATE
COUNSEL FOR APPELLEE: RUSSELL M. COLEMAN ATTORNEY GENERAL OF KENTUCKY MATTHEW ROBERT KRYGIEL ASSISTANT ATTORNEY GENERAL
MEMORANDUM OPINION
An Adair County jury convicted Jonathon Bryant of assault in the second degree, two counts of wanton endangerment in the first degree, operating a motor vehicle under the influence of a controlled substance, criminal mischief in the second degree, criminal mischief in the third degree, resisting arrest, operating on a suspended operator's license, and being a persistent felony offender in the first degree. Bryant received a sentence of twenty years in prison, and that sentence was ordered to run consecutively to a ten-year sentence imposed in a different Adair County case. This appeal followed as a matter of right. See KY. CONST. § 110(2)(b). Having reviewed the record and the arguments of the parties, we affirm the Adair Circuit Court.
I. BACKGROUND
At 2:44 a.m. on June 5, 2022, Jonathon Bryant called 911 asking for police and an ambulance to respond to 1657 Vester Road in Columbia, Kentucky. When the dispatcher asked Bryant to identify the emergency, Bryant cursed at the dispatcher and hung up the phone. Just under a half an hour later, Adair County Sheriff's Deputy Chandler Staten arrived on scene. He first made contact with Bryant's mother, Jean Bryant, at the residence at 1657 Vester Road. Jean advised Deputy Staten that Bryant lived behind the residence, in a cabin on the property.
Deputy Staten walked down a gravel driveway towards the cabin. He could hear glass breaking, and it sounded like someone was beating on metal. He could hear someone yelling belligerently. Deputy Staten attempted to make contact with Bryant by yelling his name, but Bryant did not answer. Although Deputy Staten could not tell exactly what was happening inside of the cabin, he had no indication that anyone else was in the cabin or that any crime was being committed. Although he did not knock on the door, Deputy Staten testified that he did not believe there was anything else he could do.
Deputy Staten then contacted Jean again. Jean appeared very concerned and in fear. Because of the surrounding circumstances, Deputy Staten told Jean that he would stay nearby and that Jean should call 911 if she needed anything else. Deputy Staten, along with Adair County Sheriff's Deputy Kenny Perkins and two members of an ambulance crew, stationed themselves a short distance away from the Bryant residence. Both Deputies Staten and Perkins testified that they anticipated that they would receive another call about Bryant and therefore did not want to leave the area.
At 5:22 a.m., Jean called 911 frantic, reporting that Bryant was high on methamphetamine and trying to break into her house. This call lasted approximately three minutes. Meanwhile, at 5:23 a.m., Amy Espey, a neighbor, called 911. She reported that she needed an ambulance because Bryant had hit her husband. Espey testified at trial that Bryant was on her porch for an hour or more throwing things and yelling for her and her husband, Richard Espey, to let him in the house. He broke large decorative porcelain bears that Espey had sitting on her deck, and he ripped up a couch. He also grabbed a brick and threatened to throw it through her glass door. Richard opened the door and tried to scare Bryant away, but it did not work. Bryant got into Espey's Jeep and broke the console. He then grabbed a trailer hitch from the back of the Jeep and threw it at Richard, hitting him. Richard fell backward onto railroad ties and could not get up. Espey was able to help Richard into the house. Espey testified that as Bryant was leaving and walking toward his parents' house, he said that he would burn down Espey's house and rape her.
Richard Espey did not testify at trial, as he had passed away from unrelated cardiopulmonary issues a few months prior.
Bryant then got into his father's truck and began driving down Vester Road. Deputies Staten and Perkins were on their way back to the Bryants' home, with Deputy Perkins driving his police cruiser in front of Deputy Staten's cruiser. The deputies had driven approximately 1 to 1.5 miles when they stopped because Bryant was driving towards them. Vester Road is a one-lane road with no center line and no shoulder, and if two cars need to drive past each other, one needs to go off of the road. Bryant drove straight at the police cruisers, which had their lights activated, and the deputies braced for impact.
When Bryant came within 15 to 20 feet of Deputy Perkins's vehicle, Bryant swerved off of the road and into a field. He then struck a brick column, and the truck became stuck. Deputy Staten approached the driver's side of Bryant's car, while Deputy Perkins approached the passenger side. Deputy Staten ordered Bryant out of the truck, but Bryant ignored all of the commands. Bryant repeatedly shifted gears between drive and reverse while pressing the accelerator, trying to get the truck unstuck. The deputies were able to get both truck doors open, and eventually Deputy Staten deployed his taser. After being hit with the taser, Bryant exited the car from the passenger side. The deputies had to work together to subdue Bryant and place him under arrest. Deputies Staten and Perkins both testified that, based on their training and experience, they believed Bryant was under the influence of methamphetamine.
Bryant was tried in front of an Adair County jury. He was convicted of assault in the second degree, two counts of wanton endangerment in the first degree, operating a motor vehicle under the influence of a controlled substance, criminal mischief in the second degree, criminal mischief in the third degree, resisting arrest, operating on a suspended operator's license, and being a persistent felony offender in the first degree. The jury recommended a total sentence of twenty years in prison, and the trial court sentenced Bryant consistently with that recommendation. The trial court further ordered that Bryant's twenty-year sentence in the case at bar was to run consecutively to any other sentence, including a ten-year sentence imposed in Adair County case number 22-CR-0065. This appeal followed.
II. ANALYSIS
On appeal to this Court, Bryant alleges the trial court made several errors. First, he alleges the trial court erred in denying his motion for a directed verdict on each of the counts of wanton endangerment in the first degree. Second, he argues that the jury instructions on the two wanton endangerment counts violated his right to a unanimous verdict. Third, he argues that the trial court erred in running his sentence in the case at bar consecutively to a sentence previously imposed. Finally, he argues that the trial court erred in denying his request for the jury to be instructed on assault in the second degree under extreme emotional disturbance (EED). We address each contention in turn.
A. Directed Verdict
Bryant first argues that the trial court erred in denying his motion for a directed verdict on the two counts of wanton endangerment in the first degree. Bryant moved the trial court for a directed verdict on these charges, arguing that the Commonwealth failed to prove that his conduct created "a substantial danger of death or serious physical injury" to either of the deputies. See KRS 508.060(1). To that extent, this issue is preserved for this Court's review. However, because he did not challenge the sufficiency of the Commonwealth's evidence on any other element of the offense at the trial court, we will not review the evidence in reference to those elements. See Ray v. Commonwealth, 611 S.W.3d 250, 266 (Ky. 2020) (holding that a defendant must identify the particular elements of the charge that the Commonwealth failed to prove in order to preserve an alleged directed verdict issue for appeal).
Our directed verdict standard has been firmly established in Commonwealth v. Benham:
On a motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purposes of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.816 S.W.2d 186, 187 (Ky. 1991). "So long as the Commonwealth produces more than a mere scintilla of evidence to support the charges, a defendant's motion for directed verdict should be denied." Taylor v. Commonwealth, 617 S.W.3d 321, 324 (Ky. 2020). "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Benham, 816 S.W.3d at 187.
Under Kentucky Revised Statute (KRS) 508.060(1), "[a] person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person." Relevant to this case, KRS 500.080(19) defines "serious physical injury" as "physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, prolonged loss or impairment of the function of any bodily organ, or eye damage or visual impairment." We have explained that whether a defendant's conduct "creates a substantial danger of death or serious physical injury to another person"
will, of course, turn on the unique circumstances of an individual case. Generally speaking, however, we would observe that a substantial risk is a risk that is ample, considerable in degree or extent, and true or real; not imaginary. Accordingly, it is clear that not all risks are substantial-hence the phrase "low risk"-and not every hypothetical scenario of "what might have happened" represents a substantial risk. In any trial, the issue of whether a defendant's conduct creates a substantial risk of death or serious physical injury depends upon proof and reasonable inferences that can be drawn from the evidence.Bell v. Commonwealth, 122 S.W.3d 490, 497 (Ky. 2003) (internal quotation marks, alternations, and footnotes omitted).
In this case, the jury heard that Bryant, who was driving while significantly under the influence of methamphetamine, failed to pull off of the one-lane road until he was within 15 to 20 feet of Deputy Perkins's vehicle, swerved as he did so, and then attempted to dislodge his truck while the deputies were dangerously close to the car commanding him to stop. The Commonwealth certainly presented "more than a mere scintilla of evidence" from which the jury could believe that Bryant's conduct placed Deputies Perkins and Staten in "substantial danger of death or serious physical injury." See Taylor, 617 S.W.3d at 324; KRS 508.060(1). To hold in any other way would itself be unreasonable. Accordingly, the trial court did not err in denying Bryant's motion for a directed verdict.
B. Unanimous Verdict
Bryant next argues that his right to a unanimous verdict on the charges of wanton endangerment in the first degree was violated by the trial court's erroneous instructions. He argues that the jury heard evidence establishing "two separate and distinct episodes of conduct that could meet the elements" of wanton endangerment in the first degree for each of the deputies. Bryant concedes that this issue was not preserved and requests palpable error review pursuant to Kentucky Rule of Criminal Procedure (RCr) 10.26.
Section 7 of the Kentucky Constitution guarantees that "a defendant cannot be convicted of a criminal offense except by a unanimous verdict." Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009). This Court's precedent has explained that a
unanimous-verdict violation occurs when a jury instruction may be satisfied by multiple criminal acts by the defendant. When that is the case, and the instruction does not specify which specific act it is meant to cover, we cannot be sure that the jurors were unanimous in concluding the defendant committed a single act satisfying the instruction. Instead, the jury's verdict only reflects their unanimous view that the defendant committed the crime, without necessarily resulting in a unanimous conclusion that the defendant committed a single criminal act beyond a reasonable doubt. Therefore, in those circumstances, the jury fails to reach a unanimous verdict.Martin v. Commonwealth, 456 S.W.3d 1, 7 (Ky. 2015), overruled on other grounds by Johnson v. Commonwealth, 676 S.W.3d 405 (Ky. 2023). Because alleged unanimity errors are questions of law, we review them de novo. Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015).
The jury instructions for each count of wanton endangerment read as follows, with each count specifying one of the deputies:
You will find the Defendant guilty of First-Degree Wanton Endangerment under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about June 5, 2022, and before the finding of the Indictment herein, he operated a motor vehicle in a wanton manner in close proximity to Adair County Deputy Sheriff Kenny Perkins;
AND
B. That he thereby wantonly created a substantial danger of death or serious physical injury to Kenny Perkins;
AND
C. That under the circumstances, such conduct manifested extreme indifference to the value of human life.
As explained, Bryant argues that he committed two separate acts for which the jury could have convicted him of wanton endangerment in the first degree for each of the deputies. He alleges that he could have been convicted for his actions in driving his truck towards Deputy Perkins's police cruiser on a one lane road and failing to pull off the road until he was within 15 to 20 feet of the cruiser. He further alleges that he could have been convicted based on his actions in attempting to dislodge his truck once it got stuck on the brick column. We disagree with his basic premise that he engaged in two separate actions for which he could have been convicted separately.
Bryant was convicted of two counts of wanton endangerment in the first degree-one count for each deputy. The jury instructions were specific as to which deputy was the victim for each of the counts.
We recently clarified that
[t]he difference between multiple, independent criminal acts and one continuous course of criminal conduct generally is "a sufficient break in the conduct and time so that the acts constituted separate and distinct offenses." Welborn v. Commonwealth, 157 S.W.3d 608, 612 (Ky. 2005). This break need only be "a cognizable lapse in his course of conduct during which the defendant could have reflected upon his conduct, if only momentarily, and formed the intent to commit additional acts." Kiper v. Commonwealth, 399 S.W.3d 736, 745 (Ky. 2012).Johnson v. Commonwealth, 676 S.W.3d 405, 412 (Ky. 2023). In this case, Bryant's conduct for which he was convicted was his continuous wanton operation of the vehicle. There was no "lapse" in that wanton operation that would have allowed for separate charges of wanton endangerment. Were we to view his conduct as each of the individual and specific maneuvers he made while operating the vehicle, we would be left with absurd results. Under that view, he could have been charged with wanton endangerment for each time he switched gears in the truck, from drive to reverse, while trying to get the truck unstuck. This cannot be the intended use of the wanton endangerment statute. But cf. Hennemeyer v. Commonwealth, 580 S.W.2d 211, 215 (Ky. 1979) (holding the wanton endangerment statute is not designed to punish a continuous course of conduct but instead is "designed to protect each and every person from each act coming within the definition of the statute").
Because Bryant was charged with and convicted of the single act of operating his vehicle in a wanton manner, the jury instructions in this case did not violate his right to a unanimous verdict.
C. Consecutive Sentencing
Bryant next argues that the trial court erred in ordering that this twentyyear sentence in the case at bar run consecutively to a ten-year sentence he received in Adair County case number 22-CR-0065, as the resulting thirty-year sentence violates the sentencing cap set forth in KRS 532.110(1)(c). Bryant concedes that this issue is not preserved. However, we can correct an illegal sentence at any time. Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007).
When Bryant committed the offenses for which he was convicted in this case, he was out of jail, on bond, in Adair County case number 22-CR-0065. He had already entered a guilty plea to the charges in 22-CR-0065 and was awaiting sentencing. KRS 533.060(3) states that
[w]hen a person commits an offense while awaiting trial for another offense, and is subsequently convicted or enters a plea of guilty to the offense committed while awaiting trial, the sentence imposed for the offense committed while awaiting trial shall not run concurrently with confinement for the offense for which the person is awaiting trial.
A defendant is considered "awaiting trial" during the time period in which he is "awaiting sentencing." Cosby v. Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004). Thus, KRS 533.060(3) would mandate that Bryant's sentences run consecutively.
However, KRS 532.110(1)(c) would seemingly cap Bryant's total sentence at twenty years. That statute states, "The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed...." KRS 532.110(1)(c). Bryant was convicted of only class C and D felonies in the two cases at issue, and therefore, under KRS 532.080, his sentence should be capped at 20 years.
This Court recently addressed the interplay between KRS 533.060(3) and KRS 532.110(1)(c) in Kimmel v. Commonwealth, 671 S.W.3d 230 (Ky. 2023). In that case, we held, "To harmonize and give effect to both statutes, we conclude that while sentences under KRS 533.060(3) must be consecutive, the resulting total term of years cannot violate the maximum aggregate sentence cap set forth in KRS 532.110(1)(c)." Id. at 239.
However, the facts of the case before us are distinguishable from those presented in Kimmel. In Kimmel, the defendant agreed to have both the offense for which he was awaiting trial and the offense which he committed while awaiting trial, tried together. Id. at 234. Such was not the case here, as Bryant had already pled guilty to the charge for which he was awaiting trial when he committed the new offenses; therefore, the two cases could not be, and were not, tried together.
This distinction makes a difference. In Johnson v. Commonwealth, 553 S.W.3d 213, 220 (Ky. 2018), we held that "the relevant sentencing statutes do not extend to sentences resulting from previous cases. Appellant's ten-year sentence resulted from a previous indictment and trial....There was no sentencing error here." In that case, we were not examining the interplay between KRS 532.110(1)(c) and KRS 533.060(3). Instead, we had to determine whether the twenty-year sentencing cap in KRS 532.110(1)(c) operated to prohibit the trial court's discretionary decision to run a sentence it was imposing consecutively to a sentence previously imposed in such a manner that the defendant's aggregate sentence exceeded the twenty-year cap. Id. at 219. We held that it did not. Id. at 220. Our analysis in that case is even more persuasive in this case, where the sentencing cap conflicts with a mandatory consecutive sentencing statute as opposed to merely the trial court's use of its discretion.
Finally, we note that after this Court rendered the Kimmel opinion, the General Assembly amended KRS 532.110(1)(c) to explicitly except out of the sentencing cap sentences imposed consecutively pursuant to KRS 533.060(2) or (3). The amended version of KRS 532.110(1)(c) now reads as follows:
The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed, except as described in KRS 533.060(2) or (3). In no event shall the aggregate of consecutive indeterminate terms exceed seventy (70) years[.]H.B. 619, 2024 Leg., Reg. Sess. (Ky. 2024) (amendment in bold). This amendment is clear evidence of the legislature's intent that the consecutive sentencing requirement found in KRS 533.060(3) controls over the sentencing cap found in KRS 532.110(1)(c).
Accordingly, the trial court did not err in ordering that the twenty-year sentence in the case at bar run consecutively to a ten-year sentence he received in Adair County case number 22-CR-0065.
D. Extreme Emotional Disturbance
Finally, Bryant argues that the trial court erred in denying his request for a jury instruction on assault in the second degree under EED. He orally requested and tendered a written instruction on assault in the second degree under EED and, therefore, this issue is preserved. See RCr 9.54; Elery v. Commonwealth, 368 S.W.3d 78, 89 (Ky. 2012). We review the trial court's ruling on the EED jury instruction for abuse of discretion. Tunstull v. Commonwealth, 337 S.W.3d 576, 583 (Ky. 2011). In doing so, we are mindful that "it is the duty of the trial judge to prepare and give instructions on the whole law of the case . . . [including] instructions applicable to every state of the case deducible or supported to any extent by the testimony." Holland v. Commonwealth, 114 S.W.3d 792, 802 (Ky. 2003) (quoting Taylor, 995 S.W.2d at 360) (internal quotation marks omitted). However, the trial court should instruct on a lesser-included offense "only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense." Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998). In considering this issue, we review the evidence in the light most favorable to the party that requested the instruction. Thomas v. Commonwealth, 170 S.W.3d 343, 347 (Ky. 2005). "[T]he presence of evidence which supports a finding of EED necessitates an instruction including it as a statutory element[.]" Benjamin v. Commonwealth, 266 S.W.3d 775, 782 (Ky. 2008). We have previously defined EED as follows:
Extreme emotional disturbance is a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under circumstances as defendant believed them to be.McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986). Under this definition, there must be "a provocation or 'triggering event' that caused the state of EED." Holland, 114 S.W.3d at 807. We have "broadly construed" what constitutes a triggering event. Luna v. Commonwealth, 460 S.W.3d 851, 883 (Ky. 2015). It can "relate to any circumstance that could reasonably cause an extreme emotional disturbance." McClellan, 715 S.W.2d at 468. In fact, we have said that "it is possible for any event, or even words, to arouse extreme mental or emotional disturbance." Holland, 114 S.W.3d at 806 (quoting Spears v. Commonwealth, 30 S.W.3d 152, 155 (Ky. 2000)). "[T]he triggering event need only be 'sudden and uninterrupted.'" Id. at 807.
Bryant argues that the triggering event occurred when he called 911 and asked for help but did not receive it. The Commonwealth, on the other hand, argues that Bryant's 911 call was not a call for help, and that Bryant was already enraged when police arrived at his residence after that call. The Commonwealth further argues that "[t]he speculative, perceived anger over the lack of response to his 911 call was clearly not an event so dramatic as to render his mind temporarily uncontrollable and provoke an explosion of violence." We agree.
We have repeatedly held that a request for an EED instruction "must be supported by some definite, non-speculative evidence." Padgett v. Commonwealth, 312 S.W.3d 336, 341 (Ky. 2010). Furthermore, there must be evidence of more than just mere hurt or anger. Talbott v. Commonwealth, 968 S.W.2d 76, 85 (Ky. 1998). This evidence can be introduced in a variety of ways, including through a defendant's testimony, a defendant's statements to police, see, e.g., Lasure v. Commonwealth, 390 S.W.3d 139, 143 (Ky. 2012); Hudson v. Commonwealth, 979 S.W.2d 106, 108 (Ky. 1998), or the testimony of a psychologist, Talbott, 968 S.W.2d at 85. In this case, no such evidence existed. Evidence of an event "so dramatic as to render [Bryant's] mind temporarily uncontrollable and provoke an 'explosion of violence'" was not introduced. Luna, 460 S.W.3d at 883 (quoting Baze v. Commonwealth, 965 S.W.2d 817, 823 (Ky. 1997)). Any connection between Deputy Staten's failure to make contact with Bryant and Bryant's subsequent assault on Richard would be merely speculative. We cannot hold that the trial court abused its discretion when it denied Bryant's request for an assault in the second degree under EED instruction.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Adair Circuit Court.
VanMeter, C.J.; Bisig, Conley, Keller, Lambert and Nickell, JJ., sitting. VanMeter, C.J., Bisig, Keller and Lambert, JJ., concur. Conley, J., concurs in part and dissents in part by separate opinion. Nickell, J., concurs in part and dissents in part by separate opinion, in which Conley, J., joins. Thompson, J., not sitting.
CONLEY, J., CONCURRING IN PART AND DISSENTING IN PART:
I agree with the majority on all issues except for the application of the sentencing cap. In an ironic twist of fate not lost upon me, I agree that Kimmel v. Commonwealth, 671 S.W.3d 230 (Ky. 2023) controls to cap Bryant's sentence despite the fact that I believed, and continue to believe, Kimmel was wrongly decided on that issue. Id. at 251-53. Therefore, I dissent from that portion of this decision.
I agree with the sentiment expressed by Justice Nickell, that the distinction between this case and Kimmel adopted by the majority is too strained. Bryant committed his second offense whilst awaiting sentencing for the first offense. KRS 533.060(3) and our decision in Cosby v. Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004), dictate that his two sentences for these offenses run consecutively. In Kimmel, however, the majority rejected the proposition that KRS 533.060(3) applies over KRS 532.110(1)(c). Kimmel, 671 S.W.3d at 239. As I noted in dissent, the Court's analysis failed to reckon with the fact that "by the time the General Assembly amended KRS 532.110 in 2002, it was presumably aware for thirteen years that the courts of the Commonwealth were applying KRS 533.060(3) over KRS 532.110(1)(c), despite the latter's statutory cap." Id. at 252 (citing White v. Commonwealth, 5 S.W.3d 140, 142 (Ky. 1999); Handley v. Commonwealth, 653 S.W.2d 165, 166 (Ky. App. 1983); Martin v. Commonwealth, 777 S.W.2d 236, 238 (Ky. App. 1989)). This brought the issue of applying KRS 533.060(3) over KRS 532.110(1)(c) firmly within the rule that the legislature is presumed to agree "with a prior court interpretation of its statute when it does not amend the statute interpreted." Id. at 253 (quoting Bloyer v. Commonwealth, 647 S.W.3d 219, 225 (Ky. 2022)).
As the majority rightly notes, in response to Kimmel, the General Assembly amended the language of KRS 532.110(1)(c) to explicitly make an exception for situations covered by KRS 533.060(3). H.B. 619, 2024 Leg., Reg. Sess. (Ky. 2024). Respectfully, this is an unmistakable act that the General Assembly concurred with my construction of the statutes, which was nothing more than the construction given by previous Kentucky courts going back to 1983. From these facts, it is readily apparent that Kimmel is an anomalous decision which principles of stare decisis do not require us to affirm. If the majority wishes to not apply the sentencing cap to Bryant's case, then the solution is simple: overrule Kimmel.
Unfortunately, the majority does not do so and instead affirms Kimmel while attempting to distinguish it from applicability in this case. As I and Justice Nickell have said, I find that distinction unpersuasive. If Kimmel remains good law as the majority seems to affirm, then it applies to Bryant's case. Thus, while I would readily agree the sentencing cap does not apply to Bryant's case if the Court overruled Kimmel, I believe we ought to be consistent; and if the Court is unwilling to overrule Kimmel, then Kimmel plainly controls in this case, and Bryant's thirty-year consecutive sentences violated KRS 532.110(1)(c) as this Court construed that statute at the time he committed and was sentenced for his offenses.
NICKELL, J., CONCURRING IN PART AND DISSENTING IN PART:
I agree with much of the majority's analysis, but part ways relative to its determination that Bryant's total sentence did not violate the maximum aggregate sentence cap under KRS 532.110(1)(c). I believe the logic and holdings of Kimmel cannot be distinguished from the instant case, and are, therefore, applicable and controlling. Thus, I concur in part and dissent in part.
As the majority correctly notes, just over a year ago, this Court determined that mandatory consecutive sentences under KRS 533.060(3) are subject to the maximum aggregate sentencing cap set forth in KRS 532.110(1)(c). Kimmel, 671 S.W.3d at 239. In the present case, Bryant committed additional offenses while awaiting sentencing in another case, thereby bringing him within the purview of the mandatory consecutive sentencing provisions of KRS 533.060(3). See Cosby, 147 S.W.3d at 59. However, because he was convicted of class C and D felonies, KRS 532.110(1)(c) dictates that his sentence should be capped at 20 years, regardless of the mandate that his sentences be run consecutively. That is the plain holding of Kimmel.
Although recognizing Kimmel's directive, the majority adopts a strained factual distinction in avoiding its application. In my view, the distinction drawn makes no real difference relative to application of Kimmel's well-reasoned holding. The broad statutory interpretation announced in Kimmel was not subject to a constricted factual limitation pertaining only to those rare situations involving joint trials.
In Kimmel, the defendant agreed to a joint trial of originally charged crimes alongside additional charges acquired while awaiting trial on his prior charges. Conversely, in the present case, Bryant had previously entered a guilty plea and was awaiting sentencing relative to the originally charged crimes when he acquired new charges for which he was tried separately. The majority utilizes this inconsequential distinction to neuter Kimmel of relevance and imbue reliance on Johnson.
In Johnson, the defendant had been tried, convicted, and sentenced in a previous case. Exercising its discretion, the trial court ordered the defendant's new sentence to run consecutively to the prior sentence. This Court held "the relevant sentencing statutes do not extend to sentences resulting from prior cases." 553 S.W.3d at 220 (emphasis added). Thus, the sentencing cap of KRS 532.110(1)(c) did not apply to limit Johnson's term of incarceration. In Johnson, the crux of the Court's legal analysis was whether the defendant had been sentenced relative to the prior criminal conviction at the time the new sentence was imposed.
Here, Bryant had previously pled guilty to criminal charges, was out on bond, and was awaiting sentencing when he committed additional crimes for which he was subsequently tried and convicted. Contrary to the facts in Johnson, Bryant had no previously imposed sentence. Thus, the sentencing cap of KRS 532.110(1)(c) did apply to preclude consecutive sentences imposing more than 20 years' incarceration for the aggregate criminal offenses. In short, because multiple sentences were being imposed for more than a single crime, the provisions of KRS 532.110(c) controlled, and the trial court erred in failing to limit Bryant's sentence to a maximum of twenty years. Kimmel, 671 S.W.3d at 239.
Finally, while the majority posits the General Assembly's amendment of KRS 532.110(1)(c) following Kimmel evidences its present intent that the mandatory consecutive sentencing provisions of KRS 533.060 should control over the sentencing cap, such a policy decision is of no moment to the case at bar. The statutory amendment was plainly not in effect at the time of Bryant's sentencing and was not designated as having retroactive effect. Thus, the amendment could have no bearing whatsoever on Bryant's sentence and the legislature's showing of its intent post-Kimmel is inapposite.
For the foregoing reasons, I would vacate Bryant's sentence to the extent the aggregate sentence in his two cases exceeds twenty years in accordance with our holding in Kimmel and would remand to the trial court for entry of a judgment consistent therewith. Therefore, I concur in part and dissent in part.
Conley, J., joins.