Opinion
NO. 2018-CA-000910-MR
06-29-2018
JANISHA ELERY APPELLANT v. MARK E. BOLTON, DIRECTOR, LOUISVILLE METRO DEPARTMENT OF CORRECTIONS APPELLEE
ATTORNEY FOR APPELLANT: Yvette DeLaGuardia Louisville Metro Public Defender's Office Louisville, Kentucky ATTORNEY FOR APPELLEE: Brenn O. Combs Justice and Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 18-CI-002878 OPINION AND ORDER
REVERSING
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BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Appellant, Janisha Elery, was arrested for various felony charges on August 9, 2017, in Jefferson Circuit Court Case No. 17-CR-000937-002. On August 11, 2017, Elery appeared in Jefferson Circuit Court for Case No. 17-CR-000937-002. At that hearing, Elery was found in contempt of court and was sentenced to serve six months, to begin at the conclusion of Case No. 17-CR-000937-002.
Unable to post the $10,000 full cash bond in Case No. 17-CR-000937-002, Elery remained in custody pending resolution of the case. On April 9, 2018, Case No. 17-CR-000937-002 was resolved and the charges disposed of through a pretrial diversion agreement. At the conclusion of the April 9, 2018, hearing, Elery's counsel attempted to address the circuit court as to whether appellant's pretrial incarceration would be credited against her contempt sentence; however, the circuit court refused to allow counsel to argue such and threatened sanctions if he did so.
On May 18, 2018, Janisha Elery, by counsel, filed a petition for a writ of habeas corpus in Jefferson Circuit Court. Elery argues that, pursuant to KRS 532.120(4), she is entitled to credit against the contempt sentence for the pretrial time she has spent incarcerated on Case No. 17-CR-000937-002. The Jefferson Circuit Court entered an order on May 24, 2018, denying the petition for a writ of habeas corpus, relying on Norton v. Commonwealth, 37 S.W.3d 750 (Ky. 2001) and holding that "the statutory requirement for concurrent sentencing does not apply to terms imposed as a punishment for contempt of court." This appeal followed.
"[T]he 'primary purpose' of habeas corpus relief is to 'determine the legality of the restraint under which a person is held.'" Murrell v. Bottom, 523 S.W.3d 405, 407 (Ky. 2017), citing Walters v. Smith, 599 S.W.2d 164, 165 (Ky. 1980). The purpose of a habeas corpus proceeding is to determine whether the person detained is entitled to immediate release from detention. Hudson v. Commonwealth, 932 S.W.2d 371, 373 (Ky. 1996); Graham v. O'Dea, 876 S.W.2d 621, 622 (Ky. App. 1994). "This writ is an expedited procedure of a summary nature." Commonwealth v. Marcum, 873 S.W.2d 207, 210 (Ky. 1994).
KRS 532.120(4) states:
If a person has been in custody due to a charge that culminated in a dismissal, acquittal, or other disposition not amounting to a conviction, the amount of time that would have been credited under subsection (3) of this section if the defendant had been convicted of that charge shall be credited as provided in subsection (3) of this section against any sentence based on a charge for which a warrant or commitment was lodged during the pendency of that custody.
Diversion is an "other disposition not amounting to a conviction." Id. Elery's contempt sentence was a commitment lodged against her during the pendency of her pretrial custody for charges for which she was granted diversion. While Norton v. Commonwealth, 37 S.W.3d 750 (Ky. 2001), relied on by the circuit court, clearly states that KRS 532.110(1)(a)'s requirement of concurrent sentencing does not apply to contempt sentences, Norton is not clear with respect to application of KRS 532.120. Rather, Norton stated that whether KRS 532.120(3) applied to the contempt sentence in that case was a matter of semantics. However, in this case it is more than semantics because application of KRS 532.120(4) to Elery entitles her to immediate release. Based on a plain reading of the statute, KRS 532.120(4) applies to Elery's contempt sentence.
Therefore, having considered the record on appeal, the applicable law, and being otherwise sufficiently advised, this Court ORDERS that the May 24, 2018, order of the Jefferson Circuit Court is hereby REVERSED. Appellee Mark E. Bolton, Director of the Louisville Metro Department of Corrections, is hereby ORDERED to IMMEDIATELY RELEASE appellant Janisha Elery from her confinement. The Jefferson Circuit Court is ORDERED to enter any orders necessary to the enforcement of this order.
CLAYTON, CHIEF JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS AND WRITES SEPARATE OPINION. ENTERED: June 29, 2018
/s/ Kelly Thompson
JUDGE, COURT OF APPEALS
TAYLOR, JUDGE, DISSENTING: I respectfully dissent from the majority opinion. I would interpret KRS 532.120(4) as being inapplicable to a sentence imposed for contempt.
When interpreting a statute, if possible, the court is obligated to adopt an interpretation that will uphold its constitutionality. Gurnee v. Lexington-Fayette Urban County Gov't, 6 S.W.3d 852 (Ky. App. 1999). And, a statutory term that has acquired a specialized meaning in the law should be afforded such meaning. Williams v. Commonwealth, 354 S.W.3d 158 (Ky. 2011).
KRS 532.120(4) provides:
If a person has been in custody due to a charge that culminated in a dismissal, acquittal, or other disposition not amounting to a conviction, the amount of time that would have been credited under subsection (3) of this section if the defendant had been convicted of that charge shall be credited as provided in subsection (3) of this section against any sentence based on a charge for which a warrant or commitment was lodged during the pendency of that custody. (Emphasis added.)Under KRS 532.120(4), a person held in custody under a charge that culminated in a "disposition not amounting to a conviction" is entitled to credit as provided under subsection (3) "against any sentence based upon a charge for which a warrant or commitment was lodged" during his custody.
Under the terms of KRS 532.120(4), it is unclear whether pretrial diversion constitutes a "disposition not amounting to a conviction." But, the more troublesome question is whether a sentence imposed for contempt comes within the ambit of KRS 532.120(4). KRS 532.120(4) repeatedly utilizes the term "charge." A person "in custody due to a charge" is entitled to credit "against any sentence based on a charge." Although charge is not defined in KRS Chapter 532, the term has acquired a specialized legal meaning. In criminal law, the term "charge" is particularly defined as "[a] formal accusation of a crime as a preliminary step to prosecution" and as "the specific crime the defendant is accused of committing." BLACK'S LAW DICTIONARY 227 (7th ed. 1999); BLACK'S LAW DICTIONARY 233 (6th ed. 1990) (emphasis added). Considering the definition of charge and the particular use of charge in KRS 532.120(4), I simply do not believe that a sentence imposed for contempt of court comes within the purview of the statute, since the contempt power is an inherent power of the judiciary alone. Arnett v. Meade, 462 S.W.2d 940 (Ky. 1971).
If, however, KRS 532.120(4) applies to a sentence imposed for contempt, the statute is unconstitutional in such respect. Our Supreme Court has declared that "any legislation that hampers judicial action or interferes with the discharge of judicial functions is unconstitutional." Norton v. Commonwealth, 37 S.W.3d 750, 754 (Ky. 2001). In delineating the constitutional roles of the judicial and legislative branches of government in relation to contempt, the Supreme Court held:
If we were to permit the KRS 532.110(1)(a) requirement of concurrent sentencing for definite and indeterminate terms to apply to sentences imposed for contempt of court, we have no doubt the requirement would materially limit the court's power of contempt. This we will not do. If the courts are to have the power to control participants in the judicial process and effectively administer justice, the power of contempt must be more than a hollow threat. As we stated in Woods, "[w]itnesses cannot be allowed to freely refuse requests
of the court with the certainty that their penalty will be of limited duration." Woods,712 S.W.2d at 365. Similarly, if a defendant knows with certainty that any contempt conviction will simply be ordered to run concurrently with his felony sentence, the court's power of contempt is made meaningless. If the courts are to have any real power to control the behavior of the defendants in their courtrooms, the power of contempt must carry with it a real punishment - the possibility of serving additional time imprisoned for contemptible behavior. Therefore, we hold that the KRS 532.110(1)(a) requirement of concurrent sentencing does not apply to terms imposed as punishment for contempt of court.Norton, 37 S.W.3d at 755.
This Court has two options: (1) interpret KRS 532.120(4) as being inapplicable to a sentence imposed for contempt of court, or (2) declare KRS 532.120(4) unconstitutional in relation to a sentence imposed for contempt of court. I believe legal precedent mandates that we adopt the former option and hold that KRS 532.120(4) does not apply to a sentence imposed for contempt of court. See Norton, 37 S.W.3d 750; Gurnee, 6 S.W.3d 852.
Therefore, I would affirm the circuit court's denial of Elery's writ of habeas corpus. ATTORNEY FOR APPELLANT: Yvette DeLaGuardia
Louisville Metro Public
Defender's Office
Louisville, Kentucky ATTORNEY FOR APPELLEE: Brenn O. Combs
Justice and Public Safety Cabinet
Frankfort, Kentucky