Opinion
NO. 2016-CA-001328-MR
07-07-2017
STACEY SPENCER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Stacey Spencer, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jesse L. Robbins Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 06-CR-00280-002 OPINION
AFFIRMING
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BEFORE: CLAYTON, J. LAMBERT, AND THOMPSON, JUDGES. CLAYTON, JUDGE: Stacey Spencer appeals from an order of the Campbell Circuit Court that denied his Motion for Resentencing filed pursuant to Kentucky Revised Statute (KRS) 532.050. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 8, 2006, Spencer was indicted for murder (and complicity) (KRS 507.020 and 502.020), assault in the first degree (and complicity) (KRS 508.010 and 502.020), robbery in the first degree (and complicity) (KRS 515.020 and 502.020), and being a persistent felony offender in the first degree (KRS 532.080), based on an incident where he and another man forcibly took money from two individuals and in the process stabbed both of them with a knife. One of the victims died as a result of his injuries and the second victim was seriously injured. On May 15, 2007, the circuit court conducted a hearing at which Spencer entered a plea of guilty in exchange for the Commonwealth's recommendation for a sentence of five years on a count of criminal facilitation to murder, twenty years on a count of assault in the first degree, twenty years on a count of robbery in the first degree, all to be served concurrently, and twenty-five years on the count of being a persistent felony offender in the first degree in lieu of the sentences on the other counts for a total sentence of twenty-five years. The circuit court ordered that a presentence investigation report (PSI) be prepared by the Division of Probation and Parole and scheduled a sentencing hearing for June 2007. Prior to the sentencing hearing held on June 19, 2007, defense counsel was provided a copy of the PSI. At the hearing, the circuit court asked Spencer if he had had an opportunity to read the PSI and he responded that he had. When the court asked defense counsel if any changes or corrections to the PSI were needed, he responded negatively and concurred that there was no legal cause why sentencing should not proceed. When the court inquired about whether the defendant wanted to make any statements on mitigation, defense counsel indicated that he had spoken with Spencer and he did not wish to make a statement. The court noted that it had reviewed the PSI, and while it revealed numerous prior offenses, the court would accept the recommendations of the Commonwealth.
On July 1, 2016, Spencer filed a Motion for Resentencing Based on a Corrected Pre-Sentence Investigation Report Pursuant to KRS 532.050 requesting that the circuit court order Probation and Parole to prepare a corrected PSI and enter an order re-sentencing him. The circuit court denied the motion stating that it had complied with KRS 532.050. This appeal followed.
ANALYSIS
Spencer stated in his motion that an inmate's PSI impacts several aspects of his incarceration including: transfers; eligibility for participation in education programs and employment; classification for custody level, prison placement, and cell and dorm assignments; and parole determinations. He contends that the PSI prepared for his sentencing contains inaccurate, untruthful, and derogatory facts but the only allegedly incorrect information he specifically addresses is a statement that he "forced entry into a residence, wherein in this case it is clearly stated that a drug-dealer's domain was the actual place entered, not his home." Spencer relies on KRS 532.050(6), which provides as follows:
Before imposing sentence, the court shall advise the defendant or his or her counsel of the factual contents and conclusions of any presentence investigation or psychiatric examinations and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The court shall provide the defendant's counsel a copy of the presentence investigation report. It shall not be necessary to disclose the sources of confidential information.
Spencer alleges in his brief that trial counsel never informed him about the impact of the PSI on his conditions in prison and assured him it was "no big deal." Spencer's reliance on KRS 532.050(6) is misplaced. The record indicates that the circuit court followed the requirements of that statute. Defense counsel was provided a copy of the PSI prior to the sentencing hearing and discussed the contents with Spencer as shown by counsel's statement that there were no corrections to the PSI necessary. The court also specifically asked Spencer if he had reviewed the PSI, which he replied affirmatively. The record establishes that Spencer was aware of and given a fair opportunity to controvert the contents of the PSI. See Commonwealth v. Bush, 740 S.W.2d 943 (Ky. 1987). The statute does not require the circuit court to correct a PSI after the conviction has become final. Thus, the circuit court complied with the requirements of KRS 532.050(6).
Spencer did not include these assertions in his motion filed in the circuit court.
Moreover, even if he could raise a belated challenge to the PSI, Spencer has not shown that any misinformation in the PSI has actually negatively affected his conditions of imprisonment. First, it is unclear that the information in the PSI was actually incorrect. Second, the parole statute does not create a liberty interest in parole since it does not create an entitlement to parole. Belcher v. Kentucky Parole Bd., 917 S.W.2d 584 (Ky. App. 1996). Parole is a privilege in Kentucky and its denial does not carry any constitutional implications. Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999). Spencer's claim that errors in a PSI could potentially affect his eligibility for parole review is too speculative and not ripe for review. See Smith v. Commonwealth, 2004-SC-000259, 2006 WL 734008 (Ky. Mar. 23, 2006). Also, it is well established that a prisoner has no inherent right to a particular security classification or to be housed in a particular institution. Mahoney v. Carter, 938 S.W.2d 575, 576 (Ky. 1997). Spencer has not shown that he has suffered any cognizable injury because of alleged inaccuracies or problems with the content of the PSI. Consequently, we conclude that the circuit court did not err in denying Spencer's motion for resentencing or to correct the PSI.
Spencer's assertion that the building where the crimes were committed would not qualify as a residence because it was a drug-dealer's "domain" is questionable. --------
For the foregoing reasons, we affirm the order of the Campbell Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Stacey Spencer, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jesse L. Robbins
Assistant Attorney General
Frankfort, Kentucky