Opinion
NO. 2016-CA-000748-MR
07-21-2017
FREDERICK LOUIS MILLER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Steven J. Buck Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 15-CR-00751 OPINION
AFFIRMING
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BEFORE: MAZE, STUMBO AND TAYLOR, JUDGES. STUMBO, JUDGE: Frederick Louis Miller appeals from a Judgment and Sentence of the Warren Circuit Court following a jury trial with respect to the denial of his motion for a directed verdict on the offense of being a persistent felony offender in the first degree. For the reasons set forth below, we affirm.
On September 23, 2015, Miller was indicted on multiple counts of criminal activity primarily relating to the possession of and trafficking in controlled substances. Miller was also indicted on one count of being a persistent felony offender in the first degree (PFO I). The predicate offenses for the PFO I charge included a December 23, 2009 conviction for unlawful transaction with a minor in the second degree in Warren Circuit Court in Case No. 03-CR-00204; an April 2, 2004 conviction for failure to register as a sexual offender in Warren Circuit Court in Case No. 03-CR-00014, enhanced by a conviction for PFO I in Case No. 03-CR-00379; a November 18, 1987 conviction for trafficking in a schedule two narcotic controlled substance in Warren Circuit Court Case No. 87-CR-00390; a June 4, 1987 conviction for criminal attempt to commit sodomy in the first degree and being a persistent felony offender in the second degree in Franklin Circuit Court Case No. 86-CR-00150; and a February 24, 1982 conviction for two counts of wanton endangerment in the first degree in Warren Circuit Court Case No. 81-CR-00452.
Kentucky Revised Statute (KRS) 532.080.
The circuit court conducted a jury trial between March 1 and 16, 2016. During the trial, defense counsel filed two motions to prohibit the use of Miller's convictions in Case Nos. 03-CR-00014, 03-CR-00204, and 03-CR-00379 for purposes of penalty enhancement as a persistent felony offender under KRS 532.080. Also, between the guilty phase and penalty phase of the trial, counsel raised the same issues in a motion for directed verdict on the PFO I count. The circuit court denied these motions and allowed the Commonwealth to present evidence on these convictions. The jury found Miller guilty of several offenses. Ultimately, he received a sentence of eighteen years in prison due to the PFO I enhancement. On April 26, 2016, the circuit court sentenced Miller to eighteen years in prison consistent with the jury's recommendation. This appeal followed.
ANALYSIS
Miller contends the circuit court erred by denying his motion for a directed verdict of acquittal on the offense of being a persistent felony offender in the first degree. The standard for a directed verdict is set out in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991):
On 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 purpose 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.Moreover, Benham states, "[o]n 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." Id. (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). A directed verdict motion is reviewed in light of the proof at trial and the statutory elements of the alleged offenses. Acosta v. Commonwealth, 391 S.W.3d 809, 816 (Ky. 2013) (citing Lawton v. Commonwealth, 354 S.W.3d 565, 575 (Ky. 2011)). As stated in Sawhill, there must be evidence of substance, and the trial court is expressly "authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence." Sawhill, 660 S.W.2d at 5; Benham, 816 S.W.2d at 187-88. As to a trial court's decision to deny a motion for a new trial, "[an appellate court is] to affirm ... 'unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ.'" Fister v. Commonwealth, 133 S.W.3d 480, 487 (Ky. App. 2003) (citation omitted). The reviewing court is not to make determinations regarding credibility or weight of the evidence. Benham, 816 S.W.3d at 187.
Miller's arguments center on the statutory requirements for establishing the offense of being a persistent felony offender under KRS 532.080. Thus, the question before the Court relates to the interpretation of KRS 532.080, and the law related to statutory interpretation is well-settled in the Commonwealth. "The primary purpose of judicial construction is to carry out the intent of the legislature." Monumental Life Ins. Co. v. Dept. of Revenue, 294 S.W.3d 10, 19 (Ky. App. 2008). In doing so, a court "must consider the intended purpose of the statute and the mischief intended to be remedied. A court may not interpret a statute at variance with its stated language." Id. (citing SmithKline Beecham Corp. v. Revenue Cabinet, 40 S.W.3d 883, 885 (Ky. App. 2001)) (internal quotations omitted). Furthermore, we "must interpret the statute according to the plain meaning of the act and in accordance with the legislative intent." McGruder v. Commonwealth, 487 S.W.3d 884, 887 (Ky. 2016) (quoting Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002)) (internal quotations omitted); KRS 446.080(4). The interpretation of a statute is a matter of law, which we review de novo. Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky. 2011).
A. Case No. 03-CR-00014.
In Case No. 03-CR-00014, a jury convicted Miller in February, 2004, of failure to register as a sex offender. In the same trial, the jury convicted Miller of being a PFO I under indictment No. 03-CR-000379. In April, 2004, the circuit court sentenced Miller to ten years in prison. Miller argues that a prior conviction in Franklin Circuit Court Case No. 86-CR-00150 was improperly used both as the predicate offense supporting the charge of failure to register as a sexual offender in Case No. 03-CR-00014 and the PFO I charge in Case No. 03-CR-00379. See, e.g., France v. Commonwealth, 320 S.W.3d 60 (Ky. 2010). The circuit court rejected this argument based on the Commonwealth's representation that during the trial in Case Nos. 03-CR-00014 and 03-CR-00379, the prosecutor withdrew the conviction in Case No. 86-CR-00150 as a predicate for the PFO I charge. Miller has presented no evidence disputing the Commonwealth's representation, so the circuit court did not err with respect to this issue.
Miller also argues that the conviction in Case No. 03-CR-00014 did not qualify as a predicate for the PFO I charge because service of the sentence was not completed within five years of the commission of the offenses in the current case. During the trial, the Commonwealth had Detective Gordon Turner testify based on official court documents and documents from the Department of Corrections on Miller's prior criminal history. The evidence indicated that Miller was discharged from further service of his sentence in Case No. 03-CR-00014 on December 23, 2009. Miller contends that the date of discharge is not the operative date for determining the date of completion of service for purposes of KRS 532.080(3)(c)(1). He argues that the Commonwealth must establish the date of completion of a sentence under the statute beyond a reasonable doubt. This would include the application of the various provisions involving service credit available while imprisoned, such as good time credit, that must be applied to determine completion of service. However, he has presented no other legal authority directly supporting this interpretation of the statute. In Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky. 2000), the Supreme Court held that "[a] reasonable inference is sufficient to meet the requirements of the PFO statute." See also Shabazz v. Commonwealth, 153 S.W.3d 806, 813 (Ky. 2005). The Supreme Court has addressed this issue in an unpublished case, Martindale v. Commonwealth, No. 2005-SC-000942-MR, 2008 WL 3890037, at 13 (Ky. Aug. 21, 2008), wherein it stated:
KRS 532.080(3)(c)(1) provides that the offender must have "completed service of the sentence imposed on any of the previous felony convictions within five (5) years prior to the date of the commission of the felony for which he now stands convicted."
Appellant argues that inferences such as these "fail to take into consideration [Appellant's] credit for time served prior to trial, good time credits, and any other factors which would result in his release from the
sentence by May 1999 (5 years from the date of the commission of the offense)." However, this would require the Commonwealth to prove a negative. We addressed a nearly identical argument in Shabazz v. Commonwealth. In Shabazz, which also dealt with the denial of a directed verdict in a PFO proceeding, the Court acknowledged that the Commonwealth had failed to present "any evidence as to whether Appellant had been released from probation 'by virtue of executive clemency, reversal on appeal, release by way of habeas corpus, or by other means whereby persons serving felony sentences may gain relief.'" But we concluded that the Commonwealth is not required to engage in "the almost impossible task of proving a negative." We further stated that "the burden of proving such negatives is on the defendant."(Emphasis in original and footnotes omitted).
The Commonwealth is not required to prove that Appellant did not receive good time credit, or that he did not serve time in jail prior to his conviction. Appellant has the burden of proving that such a circumstance did in fact exist. At trial, Appellant presented no evidence suggesting that he had completed his sentence more than five years prior to the present offense. Under the evidence presented, it was not clearly unreasonable for the jury to make inferences and find Appellant guilty of being a PFO in the first degree. The trial court did not err in denying Appellant's motion for a directed verdict.
B. Case No. 03-CR-00204
In Case No. 03-CR-00204, Miller was initially convicted by a jury in January, 2006, of four counts of third-degree rape, one count of third-degree sodomy, and being a first-degree persistent felony offender. On February 22, 2006, the circuit court sentenced him to twenty years in prison to be served concurrently with Case No. 03-CR-00014. Miller appealed to the Supreme Court, and the Court reversed his convictions and remanded his case for a new trial. See Miller v. Commonwealth, 283 S.W.3d 690 (Ky. 2009). On remand, Miller pled guilty to the single count of unlawful transaction with a minor in the second degree on November 25, 2009, with the Commonwealth recommending a sentence of one year. On December 22, 2009, the circuit court entered a sentence of one year consistent with the Commonwealth's recommendation. He was officially discharged on the sentence the same day because he was given credit for the time he had already served on the original conviction.
Miller was discharged on Case No. 03-CR-00014 on the same date because he had been serving time on the ten-year sentence in that case concurrently with Case No. 03-CR-00204. --------
Miller maintains that the completion date for service of his sentence on 03-CR-00204 for purposes of KRS 532.080 was some unspecified date prior to the December 23, 2009 date of discharge. This argument is contrary to the plain language and intent of the statute. Between his original conviction and the date that he entered his guilty plea on the amended offense, Miller was properly serving a twenty-year sentence on the several sexual offenses. Miller voluntarily entered into the guilty plea and received credit on the time he had served on the original sentence. Completion of his sentence on the amended conviction was not officially recognized until entry of the judgment and sentence in December, 2009. Miller's appeal delayed finality of the case and the determination of its application for persistent felony offender status. Thus, we conclude that the circuit court did not err in holding that the conviction in Case No. 03-CR-00204 could be used for purposes of the persistent felony offender statute and denying Miller's motion for directed verdict.
For the foregoing reasons, we affirm the judgment of the Warren Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Steven J. Buck
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky