Opinion
NO. 2012-CA-002044-MR
02-21-2014
DEANDREA SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Deandra Smith, Pro Se Eddyville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Tami Allen Stetler Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NOS. 10-CR-002339 AND 10-CR-002700
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES. VANMETER, JUDGE: Deandrea Smith appeals from the November 13, 2012, order of the Jefferson Circuit Court which denied his motion for a declaration of rights and asks us to vacate his December 6, 2011, judgment of conviction and sentence. Finding no error, we affirm.
In 2010, Smith was indicted for one count of first-degree robbery and one count of being a persistent felony offender (PFO). On December 5, 2011, Smith filed a motion to enter guilty plea as to both charges. In conformity therewith, Smith waived his right to a jury trial, as well as his right of an appeal. An order of guilty plea was then entered on December 6, 2011, in which the trial court found Smith guilty of both crimes and sentenced him to twenty years for the robbery charge, enhanced to thirty years by the PFO charge.
On September 27, 2012, Smith filed a "Motion for Declaration of Rights for Vacatur of Enhanced Judgment of Sentence." Therein, Smith argued that his PFO sentence enhancement was an "impermissible Bill of Pain[s] and Penalt[ies]." The motion was denied and this appeal followed.
Smith's sole argument to this Court is that the trial court abused its discretion when it denied his constitutional challenge to the PFO statute. We disagree. The PFO statute, formerly known as the Habitual Offender Statute, serves to enhance the sentence(s) of those offenders who commit multiple serious offenses and are subjected to repeated terms of incarceration. Kentucky Revised Statutes (KRS) 532.080. Smith argues that the statute is an unconstitutional bill of attainder known as a bill of pains and penalties. In short, a bill of pains and penalties is a legislative act which inflicts a punishment less severe than the death penalty without a judicial trial. See Black's Law Dictionary 165 (6th ed. 1990). It has consistently been held that the PFO statute is not unconstitutional on its face. Harris v. Commonwealth, 338 S.W.3d 222, 229 (Ky. 2011); Barber v. Thomas, 355 S.W.2d 682 (Ky. 1962); Hampton v. Whaley, 233 S.W.2d 273 (Ky. 1950). Moreover, Smith's argument is without merit because he chose to plead guilty to both the robbery charge and the PFO charge and thereby waived his rights to both a trial and an appeal. See Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983). Accordingly, we find no error with the trial court's denial of his motion for relief.
For the foregoing reasons, the November 13, 2012, order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Deandra Smith, Pro Se
Eddyville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky