Kenneth Lamont Boone Jr v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: November 17, 2022
• Docket: 2019 CA 000966
• Status: Unknown

Opinion

RENDERED: NOVEMBER 18, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-0966-MR

KENNETH LAMONT BOONE, JR. APPELLANT

ON REMAND FROM SUPREME COURT v. (FILE NO. 2021-SC-0494-DG)

APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE ERNESTO M. SCORSONE, JUDGE ACTION NO. 16-CR-00383

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

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BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: After accepting discretionary review from the

Commonwealth, the Kentucky Supreme Court reversed the portion of our opinion

which reversed the Fayette Circuit Court’s conviction of Kenneth Lamont Boone

for theft of identity and for being a persistent felony offender in the first degree

(PFO I) and remanded the case to us. As our prior opinion had reversed Boone’s conviction for failure to instruct on a lesser included offense, we did not reach

Boone’s final argument regarding his sentencing, as it was moot. Now that the

Kentucky Supreme Court has upheld his convictions, on remand we now consider

whether Boone is entitled to palpable error relief for his PFO I sentence based on

the Commonwealth having provided misleading information to the jury regarding

his parole eligibility.

After a trial in November 2018, the jury found Boone guilty of theft of

identity and being a PFO I. The jury recommended a one-year sentence, enhanced

to ten years due to the PFO I conviction. This was the statutory minimum for his

PFO I conviction. In May 2019, following his conditional guilty plea on a severed

charge of possession of a controlled substance, the trial court sentenced Boone to a

total of ten years’ imprisonment. We affirmed the denial of Boone’s motion to

suppress on the possession charge, and this decision stands as Boone did not file

his own motion for discretionary relief on that issue. Therefore, the only issue

before us is the resolution of Boone’s remaining argument as to his PFO I

sentence.

Boone argues that he is entitled to relief due to the Commonwealth

having provided misleading information regarding his parole eligibility.

Specifically, during the penalty phase the Commonwealth introduced a document

from the Department of Corrections setting forth parole eligibility, then orally

-2- explained that Boone would be eligible for parole after serving fifteen percent of

his sentence since he had been convicted of a Class D felony.

KRS 439.340(3)(a) provides that:

A nonviolent offender convicted of a Class D felony with an aggregate sentence of one (1) to five (5) years who is confined to a state penal institution or county jail shall have his or her case reviewed by the Parole Board after serving fifteen percent (15%) or two (2) months of the original sentence, whichever is longer.

Therefore, the information provided by the Commonwealth was accurate as to the

theft of identity conviction but was nonetheless potentially misleading because, by

virtue of being a PFO I, Boone received a ten-year sentence, thereby taking him

outside the scope of KRS 439.340(3)(a).

It is undisputed that Boone is ineligible for parole until he serves

twenty percent of his sentence. See 501 Kentucky Administrative Regulations

(KAR) 1:030 Section 3(1)(c). However, Boone’s counsel failed to object so Boone

is entitled to relief only if we conclude the parole information is a palpable error

under Kentucky Rules of Criminal Procedure (RCr) 10.26. An error is palpable

only if it “results in manifest injustice” and “there is a substantial possibility that,

but for the error, the verdict would have been different[.]” King v. Commonwealth,

472 S.W.3d 523, 532 (Ky. 2015).

Boone relies upon unpublished opinions which deemed similar

potentially misleading parole-eligibility information to be a palpable error. See,

-3- e.g., McGregor v. Commonwealth, No. 2012-SC-000245-MR, 2013 WL 4680444,

at *7 (Ky. Aug. 29, 2013) (unpublished). However, in addition to McGregor and

the other cases cited by Boone being unpublished, the facts here are materially

distinguishable because Boone, unlike McGregor and other defendants, received

the minimum sentence for his PFO I status. See KRS 532.080(6)(b). Thus, any

misleading information regarding parole eligibility could not have resulted in

manifest injustice because it could not have caused Boone to suffer any prejudice

as the jury could not sentence him to a lower term of years than the statutorily

mandated PFO I minimum.

We strongly caution the Commonwealth that it is improper to provide

the jury with information as to parole eligibility and then mislead the jury by not

clarifying how this eligibility will change based upon conviction for PFO I. While

we note that in another case such an error could be prejudicial, we discern no

palpable error to Boone under these facts.

Accordingly, we affirm Boone’s convictions and sentences by the

Fayette Circuit Court.

ALL CONCUR.

-4- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Aaron Reed Baker Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Aspen Roberts Assistant Attorney General Frankfort, Kentucky

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