Opinion
NO. 2014-CA-001265-MR
01-15-2016
FREDERICK STANFORD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Frederick Stanford, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Jeanne Anderson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GARRARD CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 10-CR-00039 OPINION
AFFIRMING BEFORE: DIXON, JONES AND THOMPSON, JUDGES. THOMPSON, JUDGE: Frederick Stanford, pro se, appeals from the denial of his Kentucky Rules of Civil Procedure (CR) 60.02 motion for relief from an illegal sentence.
On October 15, 2010, Stanford was indicted on one count of first-degree sexual abuse of a child under twelve, Kentucky Revised Statutes (KRS) 510.110(1)(d), (2), a class C felony. In 2012, Stanford was charged with nine counts of possession of matter portraying a sexual performance of a minor.
Pursuant to a plea agreement, Stanford's 2010 charge was amended to first-degree sexual abuse of a child under sixteen, KRS 510.110(1)(c)2, a class D felony. The Commonwealth recommended a three-year sentence on the 2010 charge to be served concurrently with one year each on the 2012 charges.
On December 21, 2012, Stanford pled guilty to these charges. During his plea colloquy, it was established that he was informed of his sentencing range and he would be subject to a five-year period of conditional discharge after his release.
On March 15, 2013, at his sentencing hearing, Stanford sought probation. Stanford was again informed that he was subject to an additional five-year period of conditional discharge. The circuit court denied probation, explaining it would diminish the seriousness of his offense and sentenced him in accordance with the Commonwealth's recommendation. The judgment and sentence on plea of guilty included a checked box ordering that "upon release from incarceration or parole, Defendant, being found guilty of a felony under KRS Chapter 510 . . . is sentenced to a five (5) year period of conditional discharge." Stanford did not file a direct appeal.
On June 9, 2014, Stanford filed a motion pursuant to CR 60.02(e) and (f) to vacate the conditional discharge portion of his sentence. The circuit court denied Stanford's motion. Stanford appeals.
CR 60.02 provides for relief of a final judgment based on enumerated grounds. Section (e) includes the basis that "it is no longer equitable that the judgment should have prospective application" and section (f) provides relief for "any other reason of an extraordinary nature[.]"
On appeal, we review the denial of a motion pursuant to CR 60.02 for abuse of discretion. Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996). An abuse of discretion occurs when a trial court's decision is arbitrary, unreasonable, unfair or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Stanford argues the conditional discharge portion of his sentence should be vacated because: (1) under Jones v. Commonwealth, 319 S.W.3d 295 (Ky. 2010), KRS 532.043(5) is unconstitutional and the replacement statute is invalid as an ex post facto law, thus making the imposition of conditional discharge void; (2) when the Supreme Court ruled KRS 532.043(5) was unconstitutional in Jones, the entire statute should have been struck down under KRS 446.090 as not severable; (3) he was convicted without benefit of fair notice through an indictment or information that he would be subject to KRS 532.043; and (4) he was sentenced to a term of years exceeding what is allowed for a class D felony under KRS 532.020.
We review Stanford's first two arguments together. When Stanford was sentenced, our Supreme Court had issued Jones ruling that KRS 532.043(5) was unconstitutional and the General Assembly had already amended KRS 532.043. Therefore, when Stanford pled guilty and was sentenced, and was informed he would have to serve a period of conditional discharge, he was in a position to challenge the applicability of the statute to him. However, he did not do so.
The prior version of KRS 532.043 provided that certain sexual offenders would be subject to an additional period of conditional discharge:
(1) In addition to the penalties authorized by law, any person convicted of, pleading guilty to, or entering an Alford plea to a felony offense under KRS Chapter 510, 529.100 involving commercial sexual activity, 530.020, 530.064(1)(a), 531.310, or 531.320 shall be subject to a period of conditional discharge following release from:
(a) Incarceration upon expiration of sentence; or
(b) Completion of parole.
(2) The period of conditional discharge shall be five (5) years.
(3) During the period of conditional, the defendant shall:
(a) Be subject to all orders specified by the Department of Corrections; and
(b) Comply with all education, treatment, testing, or combination thereof required by the Department of Corrections.
(4) Persons under conditional discharge pursuant to this section shall be subject to the supervision of the Division of Probation and Parole.
(5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing to the Commonwealth's attorney in the county of conviction. The Commonwealth's attorney may petition the court to revoke the defendant's conditional discharge and reincarcerate the defendant as set forth in KRS 532.060.
(6) The provisions of this section shall apply only to persons convicted, pleading guilty, or entering an Alford plea after July 15, 1998.KRS 532.043 (2007).
In Jones, the Kentucky Supreme Court determined that KRS 532.043(5) violated separation of powers by making revocation of a post-parole conditional release the responsibility of the judiciary. Jones, 319 S.W.3d at 299-300. In doing so, the Kentucky Supreme Court determined section five was severable and the other provisions of the statute remained in force under KRS 446.090, which provides:
It shall be considered that it is the intent of the General Assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the General Assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the General Assembly.Jones, 319 S.W.3d at 300 n. 36.
In 2011, the General Assembly amended KRS 532.043, including section five, effective March 3, 2011. 2011 Kentucky Laws Ch. 2 §91, §116 (HB 463). This amendment replaced the words "conditional discharge" with "postincarceration supervision." Section five was amended to establish a new procedure for revocation of postincarceration supervision as follows:
If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing by the Division of Probation and Parole. Notice of the violation shall be sent to the Parole Board to determine whether probable cause exists to revoke the defendant's postincarceration supervision and reincarcerate the defendant as set forth in KRS 532.060.KRS 532.043(5). Section six remained unchanged.
We are bound by and agree with the Jones decision that KRS 532.043(5) was properly severable from the rest of the statute. We determine the 2011 amendments to KRS 532.043 did not create a new crime, enhance an existing crime or enhance the penalty for an existing crime. Both before and after Jones, Stanford was subject to five years of postincarceration supervision as provided by KRS 532.043(1). The amendments only altered vocabulary terms and made a procedural enforcement change which applied to the same group of people subject to the previous version of the statute, persons convicted after July 15, 1998. Because the change made was procedural in nature and it was the clear intent of the General Assembly that it be applied retroactively so that there would be an enforcement mechanism in place for KRS 532.043, there is no merit to Stanford's argument that the new section five is void as an ex post facto law.
Once Stanford completes his sentence and is placed in postincarceration supervision, section five will not apply to him unless he violates a condition. Therefore, it is speculative to assume the change to section five would ever harm him. Compare with Jones, 319 S.W.3d at 296 (defendants mounted the constitutional challenge to section five after they served out their sentences, were released and placed on conditional discharge, violated the terms of their discharge, and were facing revocation and reincarceration).
Stanford's argument that he was convicted without benefit of fair notice through an indictment or information that he would be subject to KRS 532.043 is not well taken. Stanford was not convicted under KRS 532.043; instead his sentence under KRS 510.110(1)(c)2 required a period of conditional discharge pursuant to KRS 532.043. Fair notice does not require that Stanford be informed in his indictment of the conditional discharge period required should he be convicted for sexual abuse.
Fair notice only requires that Stanford not be subjected to a retrospective "change [that] alters the definition of criminal conduct or increases the penalty by which a crime is punishable." Martin v. Chandler, 122 S.W.3d 540, 547 (Ky. 2003) (quoting California Department of Corrections v. Morales, 514 U.S. 499, 506 n.3, 115 S.Ct. 1597, 1602 n.3, 131 L.Ed.2d 588, 595 n.3 (1995)). If KRS 532.043 had not been in effect when Stanford committed his crime, but its additional term imposed on him later for offenses committed prior to the effective date of the act, this would violate the fair notice requirements. Purvis v. Commonwealth, 14 S.W.3d 21, 23-4 (Ky. 2000). However, here, the penalties for Stanford's underlying conduct have not changed at any juncture and he was fully aware at the time he entered his guilty pleas and at sentencing that he would have to serve five years of conditional discharge following his release. Changing this period to being called postincarceration supervision and the procedure for revoking it are not substantive changes that subjected him to any increased criminal liability for past actions.
Stanford's final argument is that he was sentenced to a term of years exceeding what is allowed for a class D felony under KRS 532.020 because of the five year period of conditional discharge added to his sentence. KRS 532.020 does not designate the sentencing range for each class of felony. Instead it assigns a felony class designation to offenses outside the code, based on the range in the length of sentences that can be imposed for them.
The statute that designates the range of penalties for each class of felony is contained in KRS 532.060. At all relevant times KRS 532.060(2)(d) has provided that class D felonies are to be sentenced to between one and five years. The version of KRS 532.060(3) in effect at the time Stanford committed his crimes provides that "[f]or any felony specified in KRS Chapter 510 . . . the sentence shall include an additional five (5) year period of conditional release which shall be added to the maximum sentence rendered for the offense." KRS 532.060(3) (2006).
Although it may at first appear that these two clauses are inconsistent, "[i]t cannot be assumed that the Legislature intended to enact repugnant provisions in a statute, when its purpose was by the entire statute which it enacted at that time to make a consistent and harmonious body of criminal and penal laws." Commonwealth v. Vanmeter, 187 Ky. 807, 221 S.W. 211, 213 (1920). Therefore, these two sections should properly be read together and both be given effect.
While HB 463 amended KRS 532.060 to add the language "unless otherwise provided by law" to section two, which clarifies that there are exceptions to this range including section three, this clarification does not change the substance of the statute any more than changing "conditional discharge" to "postincarceration supervision" in section three does. Therefore, Stanford's additional five year period of postincarceration supervision was always authorized by law pursuant to KRS 532.060 in conjunction with the range of sentences for each class of felony and there was no error in his sentence.
Accordingly, we affirm the Garrard Circuit Court's denial of Stanford's CR 60.02 motion.
ALL CONCUR. BRIEF FOR APPELLANT: Frederick Stanford, Pro Se
LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General Jeanne Anderson
Assistant Attorney General
Frankfort, Kentucky