Dontrell McGee v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: November 15, 2024
• Docket: 2023-CA-1223
• Status: Unpublished

Opinion

RENDERED: NOVEMBER 15, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1223-MR

DONTRELL MCGEE APPELLANT

APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 23-CR-00377

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, CETRULO, AND A. JONES, JUDGES.

CETRULO, JUDGE: Appellant Dontrell McGee (“McGee”) appeals his sentence

due to allegedly improper comments from the prosecutor during the penalty phase

of his trial. After review, we affirm.

BACKGROUND

Police stopped McGee and his paramour while they were walking in

Covington, Kentucky, because they were in close proximity to a disturbance call and matched the description of the persons of interest at the disturbance. While

police were speaking with the couple, they discovered an outstanding warrant for

McGee’s arrest. After police handcuffed McGee, he began repeatedly asking if his

paramour could take his possessions, but police refused. Police removed McGee’s

small red bag from across his chest and discovered a handgun, an extended

magazine, gloves, and a ski mask inside. Police charged McGee with being a

convicted felon in possession of a handgun.

In August 2023, the Kenton Circuit Court held a one-day trial. Prior

to trial, McGee stipulated to his prior felony conviction. During trial, two

Covington police officers testified that McGee was wearing the red bag when they

first saw him that night; the red bag stayed on his person throughout the

conversation; and at no time did McGee disavow ownership of the bag or its

contents. The Commonwealth played police bodycam footage from the night of

the arrest showing McGee wearing the bag, police opening the bag, and finding a

handgun inside. McGee did not testify in this stage of the trial, and the jury found

him guilty of being a felon in possession of handgun, a class C felony.

In his opening statement of the penalty phase, the prosecutor informed

the jury he was going to call a probation and parole officer (“P&P Officer”) to

testify about parole eligibility and possible statutory reductions for these types of

non-violent convictions. The prosecutor stated:

-2- Class C felonies carry a punishment range . . . of five to 10 years in prison. However, [the P&P Officer is] also gonna tell you in Kentucky the sentences imposed aren’t what they seem because the Kentucky Legislature has some funny math when it comes to sentencing convicted felons. They call this portion of the trial truth-in-sentencing. The reason it’s called truth-in-sentencing is because there is really no truth to the sentence. You’re gonna hear that possession of a handgun by a convicted felon is a nonviolent felony for parole purposes. That means that no matter what sentence this jury imposes this defendant will be eligible to be released from prison after serving just 20% of whatever sentence is imposed.

...

Parole is actually decided by the parole board. We’re gonna talk a little bit about parole eligibility, what it means, what factors the parole board considers when they decide whether or not to release someone early. But if parole isn’t scary or offensive enough as it is when it comes to a sentence, what is really offensive is good time credits. [The P&P Officer] is going to tell you that good time is time that comes off the back of an offender’s sentence. In other words, it shortens the sentence that this jury imposes. . . . The official terms are statutory, meritorious, educational, and work for time credit. Basically, you’re gonna hear is that statutory is time that they get more or less for not escaping prison. They get meritorious . . . more or less for the same thing; they get it automatically. It can be taken away by the warden if they misbehave, but as long as they behave themselves behind bars they get this credit. The statutory is 10 days for every calendar month, the meritorious is seven days for every calendar month. That means that for every month that he doesn’t escape prison it shortens his sentence by 17 days. That, quite frankly, starts to add up pretty quickly. Then you factor in educational good time credits . . . they get their GED [General Educational Development] it is 90 days or three months off their sentence. If they take a drug

-3- treatment class it’s 90 days off their sentence. . . . There is no cap on the number of 90-day reductions they can get in their sentence. Frankly I went to law school in the hopes that I would never have to do math again but yet here I am. But if you just figure out the statutory and meritorious good time alone . . . if you just go off the 17 days alone for not escaping, a serve out is barely more than 50% of his sentence. A serve out is when they’re done, they’re released. . . . That’s the reality of felony offenses in Kentucky. . . . You can almost chop the sentence that this jury imposes in half if Mr. McGee behaves himself in prison.

Thereafter, the Commonwealth called the P&P Officer to testify. The

P&P Officer testified McGee had a prior felony conviction for theft in Indiana.

Also, the P&P Officer testified McGee was facing a five to 10-year sentence,

would be eligible for parole after serving 20%, but that parole was “not

guaranteed.” He explained that when an inmate reaches parole eligibility, a parole

board has the power to grant or deny parole. The P&P Officer explained that

inmates qualify for four types of “good time” credit while incarcerated, and these

credits reduce his/her overall sentence. By way of example, the P&P Officer stated

McGee will be eligible to receive 10 days of statutory good time credit per

calendar month, seven days of meritorious credit per calendar month, 90 days of

credit for any educational course he completes while incarcerated (such as a GED

course), and one day work credit for every 40 hours of work completed while

incarcerated.

-4- On cross-examination from defense counsel, the P&P Officer agreed

the statute controlling these good time credits states that an inmate “may” receive

these credits. The P&P Officer stated good time credits are awarded to inmates

unless behavior or conduct prevents it, and these awards are “not automatic.” The

P&P Officer stated the credits do not have to be given; they are discretionary

awards. Also, the P&P Officer testified the credits “could be taken away” after

being received as a punishment for poor conduct.

During redirect, the prosecutor asked the P&P Officer, “Regardless of

what the statute says the Department of Corrections may do, in reality, in practice

do they give 10 days to any inmate who does not escape?” The P&P Officer

answered in the affirmative. The Commonwealth asked, “Do they give seven days

to every inmate who does not [mis]behave?” Again, the P&P Officer answered in

the affirmative. The Commonwealth then stated:

So they don’t just willy-nilly go, “I think I’m gonna give you three days this month, and you get five days this month, and you only get a day, but this guy over here, he gets seven days.” Everybody who behaves themselves gets their seven days. Correct?

Again, the P&P Officer answered in the affirmative and shortly

thereafter the court excused him. Next, although McGee did not testify during the

guilt/innocence phase of his trial, he testified during the sentencing phase. On

direct, McGee testified he was a young father without a high school diploma or

-5- GED, but he did not discuss the details of his arrest or the events leading up to his

arrest. However, the prosecutor then asked him about the day he was arrested.

On cross-examination, the prosecutor asked McGee if the red bag was

his. At first McGee declined to answer, but after an objection and brief arguments,

the court instructed McGee to answer. McGee said he found the red bag

immediately before police stopped him, and he put the bag on without ever looking

inside. The prosecutor noted the weight of the bag – due to the heavy handgun

inside – but McGee insisted he never looked in the bag.

During his closing statement of this phase, the prosecutor stated,

They call it truth-in-sentencing for a reason because there is no truth in Kentucky sentencing. It’s the most frustrating thing about being a prosecutor. If five years actually meant five years in the Commonwealth of Kentucky, then maybe I would agree with [defense counsel] that this [charge] isn’t the worst [crime]. But then you start figuring in all this math and five years doesn’t come close to being five years, and I’m not even talking about parole eligibility. . . . [After applying credits] a five- year sentence is all the way down to two years.

Also, the prosecutor argued McGee’s lack of remorse and honesty (in

his testimony) made him a threat to the community and requested the maximum

10-year sentence. (McGee asked for the minimum five-year sentence.) The jury

sentenced McGee to seven years and six months of incarceration. McGee

appealed.

-6- STANDARD OF REVIEW

On appeal, McGee admits he did not preserve his arguments and

requests we review for palpable error pursuant to Kentucky Rule of Criminal

Procedure (“RCr”) 10.26. RCr 10.26 states that an appellate court may review

unpreserved arguments for “palpable error which affects the substantial rights of a

party” and may grant appropriate relief “upon a determination that manifest

injustice has resulted from the error.” When we engage in palpable error review,

our “focus is on what happened and whether the defect is so manifest, fundamental

and unambiguous that it threatens the integrity of the judicial process.” Martin v.

Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).

ANALYSIS

Kentucky Revised Statute (“KRS”) 532.055 is Kentucky’s truth-in-

sentencing statute, and it is “designed to provide the jury with information relevant

to arriving at an appropriate sentence for a particular offense.” Furnish v.

Commonwealth, 267 S.W.3d 656, 661 (Ky. 2007) (citing Williams v.

Commonwealth, 810 S.W.2d 511, 513 (Ky. 1991)). KRS 532.055, in relevant part,

lists the types of evidence that may be offered by the Commonwealth relevant to

sentencing including, but not limited to, parole eligibility, any prior conviction, and

“[t]he maximum expiration of [the] sentence as determined by the division of

probation and parole for all such current and prior offenses[.]” KRS

-7- 532.055(2)(a)4. KRS 197.045 describes the various kinds of credits inmates may

receive while incarcerated as explained by the P&P Officer (plus additional credit

possibilities the officer did not mention).

On appeal, McGee takes umbrage with the prosecutor stating the

standard practice within the prison system is to award meritorious credit

“automatically,” i.e., by default as long as the inmate does not misbehave. McGee

argues this statement is misleading because, by statute, meritorious credits are

awarded “only upon an affirmative decision and action by the Commissioner.”

However, McGee’s argument and the prosecutor’s words are not inherently

inconsistent. The prosecutor implied at trial that Kentucky prisons have made the

decision to award meritorious credits as the standard course of business but may

block and/or rescind that award if the inmate does not behave accordingly. The

prosecutor did say the credits were “automatic,” but then immediately relayed that

the credits “can be taken away by the warden if they misbehave.” We do not find

this to be contrary to either KRS 532.055 or KRS 197.045.

Next, McGee argues the prosecutor’s statements – his opinion that

there is no truth in Kentucky sentencing and his disagreement with the number of

credits permitted by law – were so prejudicial as to rise to a level of prosecutorial

misconduct. Since there was no contemporaneous objection, we must find the

statements to be flagrant misconduct in order to reverse on this claim. See

-8- Brafman v. Commonwealth, 612 S.W.3d 850, 861 (Ky. 2020). Misconduct is

flagrant if it rendered the trial “fundamentally unfair.” Id. (quoting Dickerson v.

Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016)). To determine if the conduct

was sufficiently flagrant, we consider if the statements were intended to mislead

the jury or prejudice McGee; whether they were isolated or extensive; whether

they were deliberately placed in front of the jury; and the strength of the evidence

against McGee. See id. (citations omitted).

As stated above, the prosecutor did not misstate the law, and there is

no indication he intended to mislead the jury. True, the prosecutor gave his

opinion of the current state of the Kentucky sentencing guidelines, but he presented

it as just that, his opinion. Simply, he stated the law correctly and then said he did

not like it. McGee does not cite any precedent that would lead us to believe that

the prosecutor’s statements reached the requisite level of prejudice in order to be

considered flagrant. Also, the prosecutor’s statements had little possibility of

being misinterpreted because they were so close in time to the P&P Officer’s clear,

accurate testimony. The P&P Officer testified that credits were discretionary and

“not automatic,” but were customarily given if the prison had no reason not to

grant the credits.

Moreover, the prosecutor’s personal opinions of credits could not

reasonably be said to have outweighed the strength of the evidence against McGee.

-9- Prior to trial, McGee stipulated he was a convicted felon. At trial, two police

officers testified that on the night of his arrest, McGee was wearing a red bag

across his chest when they first saw him, and it remained on his person until police

removed it. Police bodycam footage showed McGee wearing the red bag and

police finding a handgun in the red bag. McGee talked almost constantly during

the police stop and yet, after police found the gun, McGee did not once disavow

ownership of the red bag or its contents. It was only after the guilt/innocence

phase of his trial was completed that McGee presented an argument that the red

bag and handgun were not his. On the stand, McGee did not show contrition and

presented a somewhat implausible story about finding the bag immediately prior to

the police stop and putting it on without looking inside. Despite this, the jury did

not give McGee the maximum sentence, but rather split the requests down the

middle; the Commonwealth asked for the maximum ten years of incarceration and

the defense requested the minimum of five years. The jury recommended a

sentence of seven years and six months. As such, McGee did not meet his burden

of establishing the prosecutor’s comments were sufficiently misleading nor

outweighed the strength of the evidence to qualify as flagrant. Further, error

cannot be presumed “simply from the fact that the jury recommended severe

punishment” for McGee “in light of the overwhelming evidence produced by the

-10- Commonwealth.” See Brewer v. Commonwealth, 206 S.W.3d 343, 350-51 (Ky.

2006) (citation omitted).

In Kentucky, counsel has “wide latitude while making opening or

closing statements.” Brewer, 206 S.W.3d at 350 (citation omitted). This latitude

has been tested, but the bar remains high within palpable error review. For

instance, in Brewer, supra, a prosecutor asked the jury to “send a message” to the

community by recommending a severe prison sentence. Id. at 349. Our Supreme

Court found those statements to be improper, but stated they do not rise to the level

of palpable error in light of the overwhelming evidence and binding precedent. Id.

at 350-51 (citing Young v. Commonwealth, 50 S.W.3d 148 (Ky. 2001) and

Commonwealth v. Mitchell, 165 S.W.3d 129 (Ky. 2005)). Additionally, McGee’s

counsel asked for mercy and leniency in her closing argument, based in part, on

McGee’s age and his status as an involved father to two small children. Thus, the

prosecutor had the right to respond by asserting McGee’s lack of contrition and

honesty were cause for concern and warranted a high degree of punishment. See

id. (citation omitted). As such, we find no palpable error that affected McGee’s

substantial rights. See RCr 10.26.

CONCLUSION

Therefore, we AFFIRM the Kenton Circuit Court Order accepting the

jury’s recommendation of seven years and six months of imprisonment.

-11- ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Adam Meyer Russell Coleman Frankfort, Kentucky Attorney General of Kentucky

Ken W. Riggs Assistant Attorney General Frankfort, Kentucky

-12-