RENDERED: APRIL 27, 2023 TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0138-MR
RUVIEL HERNANDEZ APPELLANT
V. ON APPEAL FROM GREENUP CIRCUIT COURT HONORABLE BRIAN C. MCCLOUD, JUDGE NO. 18-CR-00296
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE BISIG
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
A jury of the Greenup Circuit Court found Appellant Ruviel Hernandez
guilty of one count of first-degree rape and four counts of first-degree sexual
abuse for acts perpetrated against his niece D.M. The jury recommended a
sentence of life on the rape conviction and five years on each of the sexual
abuse charges, running consecutively for a total sentence of life plus twenty
years. The trial court sentenced in accordance with that recommendation.
Hernandez now appeals to this Court as a matter of right. KY. CONST. §
110(2)(b).
After careful review, we discern no error in the trial court’s denial of
Hernandez’s motion to suppress his voluntary interview with law enforcement or in the trial court’s admission of other bad acts evidence pursuant to KRE1
404(b). We therefore affirm his convictions. However, because we conclude
(and the Commonwealth does not dispute) that Hernandez’s sentence was
unlawful, we vacate that sentence and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Hernandez is a native of Mexico who came to the United States
in 2003 when he was approximately twenty-one years old. English is not
Hernandez’s first language. After coming to the United States, Hernandez
married Haley Crum. Haley’s sister Brenda has four children, including D.M.
and L.M. Brenda and her children would visit Haley and Hernandez at their
apartment. The Commonwealth alleged that Haley and Brenda would
sometimes leave the apartment during these visits, leaving Hernandez in
charge of D.M., L.M., and the other children.
In 2015 D.M. and L.M. alleged that Hernandez touched them
inappropriately during some of these visits between October 2013 and October
2014 when they were approximately 10 and 5 years old, respectively. More
particularly, D.M. alleged that on four separate occasions Hernandez called her
into a separate room in the apartment from the other children, then touched
her breasts and vagina both over and underneath her clothing. L.M. similarly
alleged that Hernandez touched her breasts and vagina on two occasions, once
in a room in the apartment and once between two cars at a park. Trooper
1 Kentucky Rules of Evidence 2 Nathan Carter opened an investigation and interviewed Hernandez, who denied
the allegations. No arrest or charges were made at that time.
In 2018, D.M. further alleged that Hernandez had also inserted his penis
in her vagina during an incident in a bathroom during the same time period of
October 2013 to October 2014. After being contacted regarding this new
allegation, Hernandez agreed to voluntarily appear for another interview with
Trooper Carter. The recorded interview took place in a room at the local office
of the Cabinet for Health and Family Services. Hernandez sat unrestrained in
the seat nearest the door of the room, which was left cracked open. Trooper
Carter was the only officer in the room. He sat across the desk, away from the
open door, and informed Hernandez that he could leave at any time and was
not under arrest. Trooper Carter did not touch Hernandez, was wearing a
uniform, and was wearing but did not display a gun.
Trooper Carter did not provide Hernandez with Miranda warnings before
or during the interview. Though English is not Hernandez’s first language,
Trooper Carter also did not ask him if he wanted the services of an interpreter.
Nor was such an interpreter provided. Trooper Carter told Hernandez on
several occasions during the interview that he knew Hernandez had
inappropriately touched D.M. and that he could indict him and put him in
prison. Near the conclusion of the interview, Hernandez confessed to D.M.’s
allegations and stated D.M. “pushed him” to engage in the alleged acts and
“wanted sex.” However he continued to deny L.M.’s allegations. Trooper Carter
3 then placed Hernandez under arrest. The interview lasted less than forty
minutes.
A Greenup County grand jury indicted Hernandez on one charge of first-
degree rape and four charges of sexual abuse in the first-degree. These
charges related only to D.M.’s allegations and did not involve any alleged
conduct against L.M. Before trial, the Commonwealth filed a motion to
introduce other bad acts evidence of L.M.’s allegations against Hernandez
pursuant to KRE 404(b), though Hernandez had never been charged regarding
those allegations. Hernandez filed a motion to exclude such evidence as well as
a motion to suppress his interview with Trooper Carter.
The trial court held a hearing on the suppression motion on November
22, 2021 and ruled that suppression was not warranted because Hernandez
was not in custody during the interview and could understand Trooper Carter.
The trial court did not hold a hearing regarding the KRE 404(b) motion, but
rather ruled orally from the bench at trial prior to L.M.’s testimony that her
allegations were admissible to show motive and lack of mistake.
The jury convicted Hernandez of one count of first-degree rape and four
counts of first-degree sexual abuse and recommended a sentence of life on the
rape conviction and five years on each of the sexual abuse convictions to run
consecutively for a total sentence of life plus twenty years. On March 17, 2022
the trial court entered a judgment sentencing Hernandez consistent with that
recommendation. Thereafter, the trial court entered a written order on April 7,
4 2022 memorializing its oral grant of the Commonwealth’s KRE 404(b) motion at
trial. Hernandez now appeals as a matter of right.
ANALYSIS
Hernandez raises three issues for our review: (1) whether the trial court
erred in refusing to suppress his interview given Trooper Carter’s failure to
provide Miranda warnings and an interpreter; (2) whether the trial court erred
in admitting other bad acts evidence regarding L.M.’s allegations against
Hernandez pursuant to KRE 404(b); and (3) whether running Hernandez’s life
sentence for rape consecutive to the twenty-year sentence for sexual abuse was
unlawful. We address each issue in turn, providing additional facts as
necessary.
I. The trial court did not err in finding Miranda warnings were not required because Hernandez was not in custody at the time of his interview with Trooper Carter.
Hernandez first argues the trial court erred in denying his motion to
suppress his interview with Trooper Carter because Trooper Carter failed to
provide Miranda warnings before the interview. This allegation of error is
preserved by Hernandez’s filing of a motion to suppress before the trial court
raising the issue. Nichols v. Commonwealth, 142 S.W.3d 683, 691 (Ky. 2004).
When considering a trial court’s ruling on a motion to suppress, we
review the trial court’s findings of fact under the clear-error standard and thus
defer to those findings if they are supported by substantial evidence. Cox v.
Commonwealth, 641 S.W.3d 101, 113 (Ky. 2022). We review the trial court’s
application of law to those facts de novo. Id.
5 It is well-established that under Miranda v. Arizona, 384 U.S. 436 (1966),
“statements made by an accused during a custodial interrogation are
inadmissible unless the accused is advised of his rights.” Wise v.
Commonwealth, 422 S.W.3d 262, 270 (Ky. 2013) (emphasis added). In
particular, the suspect “‘must be warned that he has a right to remain silent,
that any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or
appointed.’” Id. at 269-70.
However, Miranda requires such warnings only “when the suspect being
questioned is in custody.” Cecil v. Commonwealth, 297 S.W.3d 12, 16 (Ky.
2009). A person is not in custody and thus Miranda warnings are not required
if “considering the surrounding circumstances, a reasonable person would
have believed he or she was free to leave.” Id. In applying this test, we
examine the totality of the circumstances, including factors such as:
1) the location of the interview;
2) the number of officers present;
3) the brandishing or display of a weapon by officers;
4) any physical touching of the suspect by officers;
5) whether the suspect was handcuffed or otherwise restrained;
6) any tone or language suggesting that compliance would be compelled;
7) statements made during the interview;
8) the duration of the interview; and
9) whether the suspect was released at the end of the interview.
6 Id.; Wells v. Commonwealth, 512 S.W.3d 720, 723-24 (Ky. 2017). The
Commonwealth bears the burden of demonstrating that the suspect was not in
custody. Taylor v. Commonwealth, 611 S.W.3d 730, 743 (Ky. 2020).
Here, we conclude that the totality of the circumstances are such that a
reasonable person would have felt free to terminate the interview with Trooper
Carter and leave. Trooper Carter explicitly told Hernandez at the beginning of
the interview that he was not under arrest and was free to leave at any time.
The physical setting of the interview was consistent with that representation,
occurring in a room in the offices of the Cabinet for Health and Family Services
rather than at the police station. The door of the room was, though perhaps
only cracked, nonetheless open rather than closed. Hernandez sat by that
door, while Trooper Carter sat on the opposite side of the desk away from the
door. Trooper Carter, though uniformed, was the only officer in the room. He
did not brandish or display a weapon. He did not physically touch Hernandez,
nor was Hernandez handcuffed or otherwise restrained. In reviewing the
recorded interview, we also discern no threatening tone or language in Trooper
Carter’s statements. To the contrary, it is apparent that Trooper Carter
endeavored to be amicable and develop a rapport with Hernandez. Trooper
Carter told Hernandez he respected him and stated repeatedly throughout the
interview he was not angry with him. The interview was also of short duration,
lasting less than forty minutes. Under such circumstances a reasonable
person would have felt free to terminate the interview and leave.
7 We acknowledge that during the interview, Trooper Carter referenced
other alleged illegal conduct by Hernandez and also told Hernandez on several
occasions that he had lots of evidence against him, knew he was guilty, and
could indict him and put him in prison.2 Generally, an officer’s undisclosed
suspicions regarding the suspect’s guilt “do not affect the objective
circumstances of an interrogation or interview, and thus cannot affect the
Miranda custody inquiry.” Stansbury v. California, 511 U.S. 318, 324 (1994).
However where, as here, the officer discloses such suspicions to the suspect,
the disclosure is relevant to a determination of whether the suspect is in
custody, but
only to the extent [it] would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her “freedom of action.” Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest.
Id. at 325 (citation omitted). Thus, “[t]he weight and pertinence of any
communications regarding the officer’s degree of suspicion will depend upon
the facts and circumstances of the particular case.” Id.
2 Hernandez also contends the record supports a finding that Trooper Carter threatened to indict his wife Haley and take away their children. We disagree. Haley simply testified that her children were removed for two months and that Trooper Carter told her he would indict her. Haley further testified she was unaware whether Hernandez knew of that threat because she had been interrogated before him. Trooper Carter testified he did not recall making any such threats. There was therefore no substantial evidence of record to support a finding that Trooper Carter told Hernandez he would indict Haley and take away their children. 8 Trooper Carter’s statements regarding his belief that Hernandez was
guilty are not, without more, sufficient to support a finding that Hernandez was
in custody for purposes of Miranda. Though Trooper Carter referenced his
suspicions several times throughout the interview, he did so in a friendly rather
than threatening tone. Notably, he also told Hernandez both at the beginning
and partway through the interview that he was not under arrest. See Peacher
v. Commonwealth, 391 S.W.3d 821, 848 (Ky. 2013) (finding suspect was not in
custody even where officer used severe tone in confronting him with statement
inconsistencies, given that officer also assured suspect he was not under
arrest). Quite simply, Trooper Carter’s voicing of his belief as to Hernandez’s
guilt did not rise to a level that would cause a reasonable person to believe they
were unable to terminate the interview and leave or otherwise create a serious
risk of coercion, and thus do not support a conclusion that Hernandez was in
custody for purposes of Miranda. See Wells, 512 S.W.3d at 722 (“‘[C]ustody’ is
a term of art that specifies circumstances that are thought generally to present
a serious danger of coercion.” (quoting Howes v. Fields, 565 U.S. 499 (2012))).
Likewise, the mere fact that Hernandez was arrested at the end of the
interview after confessing does not support a finding that he was in custody at
the time of the interview. See id. at 723-24 (finding that suspect was not in
custody simply because he was arrested at the conclusion of the interview after
making incriminating statements). Thus, in considering the totality of the
circumstances we conclude the trial court correctly determined that a
reasonable person would have felt at liberty to terminate the interrogation and
9 leave. As such, Hernandez was not in custody and Miranda warnings were not
required. The trial court therefore did not err in denying Hernandez’s motion
to suppress the statements.
II. The trial court did not err in finding that Hernandez sufficiently understood the English language and the American legal system such that an interpreter was not required during the interview.
We also find no error in the trial court’s conclusion that neither Trooper
Carter’s failure to provide Hernandez with an interpreter nor Hernandez’s
alleged lack of familiarity with the American legal system warranted
suppression of the interview. After closely scrutinizing the recorded interview,
we agree with the trial court that Hernandez’s English language skills were
sufficient that an interpreter was not necessary during the interview.3
Hernandez provided appropriate and articulate English responses to the
questions posed by Trooper Carter. The responses were not merely “yes” or
“no” but also included lengthier responses that utilized more than an
elementary level of English vocabulary. For example, Hernandez stated during
the interview that D.M. “pushed” him to engage in the acts at issue, using
“push” not in the concrete physical sense but rather in the more abstract sense
3 Hernandez points out that he was provided an interpreter and translation at all other phases of the legal proceedings. However, court proceedings involve technical legal terms and ideas that are generally unlikely to be used in the course of a typical police interview. Thus, interpreters may be warranted for court proceedings even for a defendant with a fairly strong command of the English language, while the same defendant nonetheless may also have the necessary English skills to fully participate in a police interview without the assistance of an interpreter. We therefore do not find the provision of an interpreter to Hernandez for other phases of the legal proceedings dispositive as to whether an interpreter was necessary for his interview with Trooper Carter. 10 of encouraging or compelling someone to do something. It is clear that
Hernandez understood the purpose of the interview, the statements and
questions posed by Trooper Carter, and the meaning of his responses. We
therefore find no error in the trial court’s conclusion Hernandez had sufficient
command of the English language such that an interpreter was not necessary
for his complete, meaningful, knowing and uncoerced participation in the
interview.4
Finally, we also find no merit in Hernandez’s contention that his
statement should have been suppressed due to alleged lack of familiarity with
the American legal system. Hernandez had lived in the United States for
thirteen or fourteen years before the interview occurred. In addition, he had
participated in a police interview in 2015 which he left without being further
arrested or detained. Moreover, Trooper Carter explicitly told Hernandez he
could leave at any time and informed him at least twice that he was not under
arrest. On these facts, we cannot find that Hernandez was so unfamiliar with
the American legal system that his participation in the interview presented a
serious risk of coercion. Accordingly, the trial court properly denied
Hernandez’s motion to suppress the interview.
4 While we do not find that the lack of an interpreter here resulted in a serious risk of coercion or unknowing or involuntary statements by Hernandez, we nonetheless pause to note that a non-English speaker’s interactions with law enforcement may present such a risk depending on the suspect’s familiarity and sophistication with the English language. Moreover, it may be difficult for officers to accurately determine the level of the suspect’s familiarity with English. Thus, while not always required, it is often better practice for law enforcement officers interacting with suspects whose first language is not English to, at a minimum, inquire whether the suspect desires to have an interpreter present. 11 III. The trial court properly determined L.M.’s allegations against Hernandez were admissible pursuant to KRE 404(b).
Hernandez next argues the trial court erred in admitting other bad acts
evidence of L.M.’s allegations against him in violation of KRE 404(b).
Hernandez stated objections to the admission of such evidence at trial, which
the trial court overruled. His allegation of error is therefore preserved. KRE
103(a)(1); RCr5 9.22; Daniel v. Commonwealth, 607 S.W.3d 626, 632 (Ky. 2020)
(noting that alleged error “was properly preserved for our review by [appellant’s]
objection to the evidence on . . . KRE 404(b) grounds.”).
KRE 404(b) governs the admissibility of evidence of other crimes, wrongs,
or acts. It provides that such evidence is “not admissible to prove the
character of a person in order to show action in conformity therewith.”
However, the Rule also provides that such evidence may be admissible if
“offered for some other purpose, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
KRE 404(b)(1).
In determining whether to admit evidence of other crimes, wrongs, or
acts under KRE 404(b), a trial court must consider the three factors of
relevance, probativeness, and prejudice as set forth in Bell v. Commonwealth,
875 S.W.2d 882 (Ky. 1994). That is, the trial court must consider 1) whether
the proffered evidence is relevant for some purpose other than to prove the
defendant’s criminal disposition, 2) whether evidence of the other crime, wrong,
5 Kentucky Rules of Criminal Procedure 12 or act is sufficiently probative of its commission by the defendant, and
3) whether the potential prejudice from admission of the proffered evidence
substantially outweighs its probative value. Bell, 875 S.W.2d at 889-91. In
considering these factors, the trial court “must apply [KRE 404(b)] cautiously,
with an eye towards eliminating evidence which is relevant only as proof of an
accused’s propensity to commit a certain type of crime.” Id. at 889. We review
a trial court’s decision to admit evidence under KRE 404(b) for abuse of
discretion. Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007). That
is, we consider whether the trial court’s ruling was “arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
Here, evidence of L.M.’s allegations against Hernandez was relevant to
the issues of mistake, motive, intent, opportunity, preparation, and plan, all of
which are permissible purposes for the admission of other bad acts evidence
under KRE 404(b). As to opportunity, Hernandez’s defense to D.M.’s
allegations involved his claim that he lacked opportunity because he was never
left alone with the children. L.M.’s allegations countered that defense by
demonstrating that Hernandez had an opportunity to engage in the conduct
charged. Further establishing motive, intent, and lack of mistake, D.M. alleged
that Hernandez had touched her breasts and vagina both above and beneath
her clothing when she was a young girl. L.M. alleged similar conduct, asserting
that Hernandez had also touched her breasts and vagina both above and
beneath her clothing when she was also very young. Relevant to preparation
13 and plan, both girls alleged incidents that had occurred in Hernandez’s
apartment when Hernandez separated the victim from the other children in the
home. Both also alleged Hernandez engaged in the abuse when Haley and
Brenda would leave the children alone with him. Both girls were Hernandez’s
nieces and thus also had the same relationship with him which established
motive and intent. Given these significant similarities, L.M.’s allegations were
relevant to demonstrate that Hernandez’s abuse of D.M. was not mistaken or
accidental touching, but rather intentional. L.M.’s allegations were also
relevant to motive insofar as they demonstrated his sexual interest in young
girls. L.M.’s allegations were thus relevant for permissible purposes under KRE
404(b).
L.M.’s allegations were also sufficiently probative that Hernandez had in
fact abused her. L.M. first made the allegations in 2015, and then made the
same allegations three years later in 2018. Her maintenance of the same
allegations over a three-year period of time, particularly given her young age of
between approximately 8 and 11 years old during that time, lends sufficient
credibility to her statements that a jury could reasonably conclude the acts
occurred and that Hernandez was the perpetrator. While Hernandez contends
L.M.’s testimony lacked credibility because the prosecutor asked her leading
questions, our review of that testimony reveals many questions were
appropriate, with at most minimal leading by the prosecutor. Certainly there
was no leading sufficient to find the trial court abused its broad discretion to
allow leading questions during this testimony by a thirteen-year-old child. See
14 Hardy v. Commonwealth, 719 S.W.2d 727, 729 (Ky. 1986) (“The trial judge has
broad discretion in permitting leading questions to a child of tender years
. . . .”). Thus L.M.’s allegations were also sufficiently probative to satisfy the
second Bell factor.
Finally, we also find no abuse of discretion in the trial court’s
determination that the prejudicial impact of L.M.’s allegations did not
substantially outweigh their probativeness. Certainly L.M.’s testimony was
highly prejudicial to Hernandez given that she testified he sexually abused her
on multiple occasions when she was less than ten years old. However, her
testimony was also highly probative as to mistake, motive, intent, opportunity,
preparation, and plan, particularly given the significant and substantial
similarities between her allegations and those made by D.M. Moreover, while
L.M.’s allegations were referenced in the prosecution’s opening and closing
statements and in Trooper Carter’s testimony, those references were not so
repetitive as to become unduly prejudicial. In addition, L.M.’s testimony itself
only lasted twelve minutes of the two-day trial. Thus, the third Bell factor as to
prejudice was also satisfied and there was no error in the trial court’s
admission of L.M.’s allegations pursuant to KRE 404(b).
IV. The trial court did not err in failing to hold a hearing and rule before trial regarding Hernandez’s motion to exclude evidence pursuant to KRE 404(b).
Hernandez also argues that his pre-trial motion to exclude L.M.’s
allegations pursuant to KRE 404(b) was a motion to suppress evidence and
that the trial court therefore violated RCr 8.27 by failing to hold an evidentiary
15 hearing and rule before trial regarding that motion. RCr 8.27(2) provides that a
trial court “shall conduct a hearing on the record and before trial on issues
raised by a motion to suppress evidence.” (Emphasis added). The Rule is
mandatory, requiring trial courts to hold hearings before trial on motions to
suppress evidence.
Notably, however, the Rule is limited to motions to suppress and thus
does not address other types of pre-trial motions. Here, Hernandez contends
his motion to exclude evidence under KRE 404(b) was a “motion to suppress
evidence” for purpose of RCr 8.27. We disagree. While neither RCr 8.27 itself
nor RCr 1.06’s provision of general definitions for the Rules of Criminal
Procedure define a “motion to suppress,” it is plain that the term as used in
RCr 8.27 refers only to motions seeking to exclude the introduction of evidence
on grounds that the evidence was obtained unlawfully.
First, as used elsewhere in the Rules of Criminal Procedure, the term
“motion to suppress” refers to a motion raising an objection “to evidence on the
ground that it was acquired by unlawful means.” RCr 3.14(3). Second, this
usage of the term in our Rules of Criminal Procedure also comports with the
common legal understanding of a motion to suppress as a “request that the
court prohibit the introduction of illegally obtained evidence at a criminal trial.”
Motion to Suppress, BLACK’S LAW DICTIONARY (11th ed. 2019). Third, the
maintenance of a legal distinction between motions to suppress and KRE
404(b) motions is also evident in the separate standards applicable to appellate
review regarding such motions. Compare Cox, 641 S.W.3d at 113 (noting that
16 rulings on motions to suppress are reviewed for clear error as to facts and de
novo as to application of law) with Anderson, 231 S.W.3d at 119 (noting that
rulings regarding KRE 404(b) motions are reviewed for abuse of discretion).
Accordingly, we hold that RCr 8.27 governs only motions to suppress, i.e. only
requests for an exclusion of evidence on grounds it was acquired by unlawful
means. Hernandez’s motion to exclude evidence under KRE 404(b) was not
such a motion, and thus did not fall within the scope of RCr 8.27. The trial
court therefore did not violate RCr 8.27 by failing to hold a hearing regarding
the motion.
Though the trial court did not violate RCr 8.27 by failing to hold a
hearing regarding Hernandez’s KRE 404(b) motion, we have previously noted
“best practice . . . dictates that a trial court conduct a hearing and make an
affirmative ruling before trial” regarding motions made pursuant to KRE 404(b).
Luna v. Commonwealth, 460 S.W.3d 851, 877 (Ky. 2015). However, a pre-trial
hearing is not mandatory. Moreover, any failure of the trial court here to hold
a hearing before trial was at most harmless error given our conclusion that
L.M.’s allegations against Hernandez were in any event admissible under KRE
404(b). See supra Part III. Finally, while Hernandez points out that the trial
judge stated after trial that he should have held a hearing and would have
excluded L.M.’s testimony if he had done so, such Monday morning
quarterbacking by the trial court alone is not a legal basis to reverse a
conviction, particularly where—as here—we determine in any event that the
trial court’s decision was correct.
17 Hernandez also argues that the trial court’s failure to rule on his KRE
404(b) motion was a violation of RCr 8.20. That Rule generally requires a trial
court to rule before trial on all pretrial motions. RCr 8.20(2). However, the
Rule also provides that a trial court may defer ruling where it finds good cause
to do so. Here the record is silent as to whether the trial court determined
there was good cause to wait until trial to rule on the KRE 404(b) motion.
However, even if its failure to rule was not supported by a finding of good
cause, any violation of RCr 8.20 was at most harmless error. The trial court
ruled orally from the bench regarding the KRE 404(b) motion before L.M. was
allowed to testify, and Hernandez points to no prejudice flowing from this
allegedly belated ruling. Further, because we have concluded L.M.’s allegations
were admissible under KRE 404(b) in any event, we find any such error
harmless as there is no basis to conclude it substantially impacted the ultimate
outcome at trial. See Mason v. Commonwealth, 559 S.W.3d 337, 339-40 (Ky.
2018) (noting non-constitutional evidentiary errors “‘may be deemed harmless
if the reviewing court can say with fair assurance that the judgment was not
substantially swayed by the error.’” (quoting Murray v. Commonwealth, 399
S.W.3d 398, 404 (Ky. 2013))).
V. The sentence imposed by the trial court is unlawful and the matter therefore must be remanded for resentencing.
Finally, Hernandez argues his sentence of life plus twenty years is
unlawful because no sentence may run consecutive to a life sentence pursuant
to our holding in Bedell v. Commonwealth, 870 S.W.2d 779 (Ky. 1993). The
Commonwealth concedes the sentence violates Bedell, though it asserts 18 Hernandez’s allegation of error is unpreserved. We nonetheless proceed to
consider the merits of Hernandez’s argument given that “[s]entencing is
jurisdictional,” “all defendants have the right to be sentenced after due
consideration of all applicable law[,]” Cummings v. Commonwealth, 226 S.W.3d
62, 66 (Ky. 2007) (quoting Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky.
1994)), and thus “sentencing issues may be raised for the first time on appeal
. . . .” Id.
In Bedell, we held that “no sentence can be ordered to run consecutively
with . . . a life sentence in any case.” Bedell, 870 S.W.2d at 783. Here, the
judgment entered by the trial court sentenced Hernandez to a sentence of life
plus twenty years. The sentence therefore violates our holding in Bedell.
Accordingly, we vacate and remand with direction to the trial court for
resentencing that runs the twenty-year sentence concurrent with the life
sentence. See Winstead v. Commonwealth, 327 S.W.3d 386, 409 (Ky. 2010)
(vacating consecutive sentences of life plus twenty years and remanding to trial
court for “resentencing that runs the term of years concurrent with [the life
sentence]”).
19 CONCLUSION
For the foregoing reasons we affirm Hernandez’s convictions, vacate his
sentence, and remand to the Greenup Circuit Court with directions to
resentence Hernandez to concurrent sentences and enter a new judgment
consistent with this opinion.
Vanmeter, C.J.; Bisig, Keller, Lambert, Nickell, and Thompson, JJ.,
sitting. All concur. Conley, J., not sitting.
COUNSEL FOR APPELLANT:
Karen Shuff Maurer Assistant Public Advocate
COUNSEL FOR APPELLEE: Daniel Cameron Attorney General of Kentucky
Jenny Lynn Sanders Assistant Attorney General