Commonwealth v. Reneer

734 S.W.2d 794, 1987 Ky. LEXIS 232

• Court: Kentucky Supreme Court
• Decided: August 6, 1987
• Docket: 86-SC-780-CL
• Status: Published

Opinions

OPINION OF THE COURT CERTIFYING THE LAW

The question is whether or not K.R.S. 532.055 (The Truth in Sentencing Statute) violates Section 28 of the Kentucky Constitution relating to the separation of powers among the separate departments of state government.

K.R.S. 532.055 provides as follows:

“(1) In all felony cases, the jury in its initial verdict will make a determination of not guilty, guilty, guilty but mentally ill, or not guilty by virtue of insanity, and no more.

“(2) Upon return of a verdict of guilty or guilty but mentally ill against a defendant, the court shall conduct a sentencing hearing before the jury, if such case was tried before a jury in the hearing the jury will determine the punishment to be imposed within the range provided elsewhere by law. The jury shall recommend whether the sentences shall be served concurrently or consecutively.

“(a) Evidence may be offered by the Commonwealth relevant to sentencing including:

“1. Minimum parole eligibility, prior convictions of the defendant, both felony and misdemeanor;

“2. The nature of prior offenses for which he was convicted;

“3. The date of the commission, date of sentencing and date of release from confinement or supervision from all prior offenses;

“4. The maximum expiration of sentence as determined by the division of probation and parole for all such current and prior offenses; and

“5. The defendant’s status if on probation, parole, conditional discharge, or any other form of legal release;

“(b) The defendant may introduce evidence in mitigation. For purposes of this section, mitigating evidence means evidence that the accused has no significant history of criminal activity which may qualify him for leniency. This section shall not preclude the introduction of evidence which negates any evidence introduced by the Commonwealth; and

“(c) Upon conclusion of the proof, the court shall instruct the jury on the range of punishment and counsel for the defendant may present arguments followed by the counsel for the Commonwealth. The jury shall then retire and recommend a sentence for the defendant.

“(3) All hearings held pursuant to this section shall be combined with any hearing provided for by KRS 532.080. This section shall not apply to sentencing hearings provided for in KRS 532.025.

“(4) In the event that the jury is unable to agree as to the sentence or any portion thereof and so reports to the judge, the judge shall impose the sentence within the range provided elsewhere by law.”

John Edgar Reneer was indicted for the offense of first-degree sodomy and as a first-degree felony offender. The offense was alleged to have been committed in 1985. K.R.S. 532.055 became effective in July, 1986. Reneer was brought to trial in August, 1986. Thus, the offense of which he was accused was allegedly committed before the effective date of the statute, and his trial began after the effective date.

Before the trial commenced, the trial court ruled that the provisions of K.R.S. 532.055 relating to a bifurcated trial in felony cases were unconstitutional because the statute attempted a legislative infringement upon the power of the Supreme Court to prescribe rules of practice and procedure for the Court of Justice.

Reneer was tried by a jury and found not guilty. Because of the impact of K.R.S. 532.055 upon hundreds of pending criminal trials throughout the Commonwealth, we granted the motion of the Commonwealth to certify the law as to the constitutionality of K.R.S. 532.055.

We hold that K.R.S. 532.055 is procedural in nature. Its provisions deal with the procedure to be followed in the trial and sentencing of criminal felony trials. The statute does not add or remove any element necessary to convict of any crime, and it does not increase or lower the penalty that can be imposed upon conviction.

Following the enactment of the statute, the jury is permitted to hear some evidence in the sentencing phase of a trial that would not have been admissible theretofore, but this evidence does not go to the issue of guilt or innocence. It neither increases or lessens the penalty or the amount of proof required to convict, and the statute making such evidence competent is likewise procedural. Murphy v. Commonwealth, Ky., 652 S.W.2d 69 (1983).

The Supreme Court of this Commonwealth has the authority to prescribe rules of practice and procedure in the courts of this Commonwealth. Kentucky Constitution, Section 116. Because K.R.S. 532.055 is a legislative attempt to invade the rule making prerogative of the Supreme Court by legislatively prescribing rules of practice and procedure, it violates the separation of powers doctrine enunciated in Section 28 of the Kentucky Constitution.

Nevertheless, it has not been the policy of this court to nullify as a matter of course all legislation which infringes to some extent upon a proper function of the judiciary. In Ex Parte Farley, Ky., 570 S.W.2d 617 (1978), we said:

“It is not our disposition to be jealous or hypertechnical over the boundaries that separate our domain from that of the legislature. Where statutes do not interfere or threaten to interfere with the orderly administration of justice, what boots it to quibble over which branch of government has rightful authority? We respect the legislative branch, and in the name of comity and common sense are glad to accept without cavil the application of its statutes pertaining to judicial matters, just as we accept KRS 532.075, even though it has been argued with much force that there is no constitutional basis for a statute enlarging the scope of appellate review beyond the matters of record in the proceeding under consideration.”

Id. at 624-625.

In O’Bryan v. Commonwealth, Ky., 634 S.W.2d 153 (1982), this court considered a statute which established procedures for a change of venue in criminal cases. We said:

“Until this statute is superseded by this Court, under the Court’s paramount rule-making authority, it stands as enacted by the General Assembly under the principles of comity elucidated in Ex Parte Auditor of Public Accounts, Ky., 609 S.W.2d 682 (1980). Under the statute’s clear and unambiguous terms, a hearing in open court is required.”

Id. at 158.

In Commonwealth v. Littrell, Ky., 677 S.W.2d 881 (1984), we noted the fact that this court could have, but had not, preempted a procedural statute by the promulgation of a rule of procedure, and we held that the fact that this court had not preempted the statute by the adoption of the pertinent rule of procedure was in itself tacit approval of the efficacy of the statute.

Perhaps our view was best expressed in Ex Parte Auditor of Public Accounts, Ky., 609 S.W.2d 682 (1980), as follows:

“The correct principle, as we view it, is that the legislative function cannot be so exercised as to interfere unreasonably with the functioning of the courts, and that any unconstitutional intrusion is per se unreasonable, unless it be determined by the court that it can and should be tolerated in a spirit of comity. The converse also is true, and in Lunsford v. Commonwealth, Ky., 436 S.W.2d 512 (1969), this court recognized that its own rule authorizing imprisonment for failure to execute a peace bond was an unconstitutional infringement upon the legislative prerogative. And in Raney, supra, for the same reason, we declined the invitation to trespass upon the exclusive right of the Senate to determine the qualifications and disqualifications of its own members. Such an inquiry is, of course, of a judicial nature, but the Constitution excludes it from the judicial process.

“Inevitably, there is and always will be a gray area in which a line between the legislative prerogatives of the General Assembly and the rule-making authority of the courts is not easy to draw. The policy of this court is not to contest the propriety of legislation in this area to which we can accede through a wholesome comity. There is, for example, the statute providing for the disqualification of judges, KRS 26A.015, as contrasted with SCR 4.300 Canon 3, C(l), in which the same subject-matter is included as a part of the Code of Judicial Conduct. There is also the matter of court costs and fees. See KRS 24A.270. Even the statutory creation of a small claims division within the structure of the constitutionally-established district court, KRS 24A.230, is not beyond the pale of an honest difference of opinion. But we hold the General Assembly in the highest respect, and much prefer cooperation over conflict. It has done great work in accommodating the statutes to the new and hitherto-untried requirements of the 1975 Judicial Amendment, and to the extent that we are able to accept its judgments without leaving seeds of future jeopardy to the integrity of the judicial system we shall continue to do so.” (Emphasis ours.)

Id. at 688.

Although it is apparent that K.R.S. 532.-055 constitutes an encroachment by the General Assembly upon the prerogatives of the Judiciary, it is, nevertheless, not an unreasonable encroachment if it can be accepted under the principles of comity.

We look then to the specific provisions of K.R.S. 532.055 to determine whether the act poses any unreasonable interference with the orderly functioning of the courts.

Sections 1 and 2 of the act require that in felony cases the jury’s determination of guilt or innocence shall be bifurcated from the assessment of penalty. This procedure has already been adopted in death penalty cases. The fact that the jury must deliberate once on the issue of guilt or innocence, and if guilty, must hear further evidence and deliberate again upon the assessment of penalty, will doubtless consume additional time in the trial process. Offset against this is the fact that the jury, in the sentencing phase, will be able to hear much evidence relevant to sentencing which it is not now permitted to hear.

One of the chief deficiencies in our present procedure is that, after reaching a verdict of guilt, the jury is required to sentence in a vacuum without any knowledge of the defendant’s past criminal record or other matters that might be pertinent to consider in the assessment of an appropriate penalty. On balance, the inconvenience of a bifurcated trial is a small price to pay for a better informed sentencing process.

Section 3 of the statute provides that the penalty-phase hearing in a felony case will be combined with the hearing required by K.R.S. 532.080 in persistent felony cases. K.R.S. 532.080 provides for enhanced penalties for persistent felony offenders and requires that when a defendant is charged with being a persistent felony offender, the determination of whether or not he is such an offender and the punishment to be imposed shall be determined in a separate hearing from the proceeding that resulted in his last conviction.

We do not perceive any apparent difficulty in this procedure. The first step of the trial will try the guilt or innocence of the defendant of the crime with which he is charged. The bifurcated penalty phase will decide the punishment on the specific charge after additional evidence pertaining to sentencing is heard.

If the accused is also charged as a persistent felony offender, the penalty phase and a persistent felony offender phase can be combined because the same evidence that is pertinent toward fixing the penalty is also pertinent for consideration in the enhancement of sentence, and the jury in the combined bifurcated hearing could be instructed to (1) fix a penalty on the basic charge in the indictment; (2) determine then whether the defendant is guilty as a persistent felony offender, and if so; (3) fix the enhanced penalty as a persistent felony offender.

Section 4 of the act provides for judge sentencing within the limitation of penalties provided by law if the jury cannot agree upon the sentence. Presently RCr 9.84 provides that:

“When a jury returns a verdict of guilty it shall fix the degree of the offense and the penalty, except where the penalty is fixed by law, in which case it shall be fixed by the court.”

In many states the sentence in criminal cases is fixed by a judge rather than a jury. It has been argued that judge sentencing lends itself to more uniform sentencing, and this court has, in the past, given consideration to adopting such a rule. We have not done so as yet, but we see no harm in permitting judge sentencing in the limited circumstances set forth in K.R.S. 582.055(4). Many hung juries result when a jury has agreed unanimously on guilt but cannot unanimously agree on the penalty. In such cases, a sentence then fixed by the judge within the range of penalties provided by law does not appear to be an unreasonable interference with orderly procedure when weighed against the alternative of a complete new trial.

We reiterate that this court has the power to preempt the statute by the promulgation of different rules of procedure at any time we determine it necessary. We reserve the right to consider any abuses or injustices alleged to be caused by K.R.S. 532.055 when presented by a proper case, but until such time as we do so, we decline to hold K.R.S. 532.055 unconstitutional, and we accept its provisions for the time being under the principle of comity.

Because the act relates to changes in procedure rather than substantive law, its application at the trial of one for an offense committed before its enactment is not an ex post facto application of the law. Murphy v. Commonwealth, Ky., 652 S.W.2d 69 (1983).

Further, we do not consider the application of the act to the trial of the defendant Reneer to give retroactive effect to the statute in violation of K.R.S. 446.080(3).

The act deals with procedures at trial. The procedure at trial is governed by the rules of procedure which exist at the time of trial, not at the time of the commission of the offense. No one has a vested right in the modes of procedure, and the state, upon grounds of public policy, may regulate them at pleasure.

Such regulations of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions or trials thereafter and without reference to the date of the commission of the offense charged. Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Murphy v. Commonwealth, supra.

The law is so certified.

STEPHENS, C.J., and GANT, STEPHENSON, VANCE and WINTERSHEIMER, JJ., concur. LEIBSON, J., dissents by separate attached opinion in which LAMBERT, J., joins.