Smith v. Commonwealth

806 S.W.2d 647, 1991 Ky. LEXIS 29, 1991 WL 51394

• Court: Kentucky Supreme Court
• Decided: April 11, 1991
• Docket: No. 89-SC-431-MR
• Status: Published

Opinions

COMBS, Justice.

William Glenn Smith was convicted of rape in the first degree (Class A felony) and sodomy in the first degree (Class A felony). The jury fixed the maximum sentence for each offense at imprisonment for life, and recommended that the sentences be served consecutively. The court sentenced Smith to two consecutive 25-year terms, for a total of 50 years.

Bringing appeal, Smith argues that the court’s modification of the sentence was unauthorized, in that it results in a sentence more severe than that fixed by the jury. Considering the anomalies of current parole disability legislation, we agree.

As written, the Violent Offender Statute, KRS 439.3401, which clearly applies to Smith, and which indeed was the subject of an instruction in the sentencing phase, forecloses parole eligibility for 12 years in the event of a life sentence, and for 50 percent of the term upon a sentence to a term of years. Life sentences may not be made consecutive.¹ Imposition of the penalty fixed by the jury in this case would have entailed a 12-year parole disability, the result being in effect an indeterminate sentence of 12 years-to-life. The court’s action substituted a 25-year period of parole ineligibility, and an effective sentence of 25-to-50 years. Smith was 43 years of age at the time.

It is the practical view, the appellant’s view (looking to the prospect of his liberty), and our view, that the judgment sentence is clearly more severe than the sentence fixed by the jury. We recognize that KRS 532.060(2)(a),² implies that the General Assembly considers life imprisonment to be a penalty equal to or greater than any sentence to a term of years. From this premise the Commonwealth cogently argues that the court here reduced the maximum term fixed by the jury, as authorized by 532.070(1).³ But if the premise is true, that a 50-year sentence is less severe than a life term, what rational basis exists for prescribing a doubly-long parole disability for the lesser sentence? We see none.

The power of the court to modify the maximum term of imprisonment set by the jury in felony cases derives from KRS 532.-070(1). This section is purely meliorative— the court may in its discretion modify a jury sentence which, considered in the circumstances, is found to be unduly harsh. The statute reveals no legislative intent to create a means by which the court may impose a more onerous penalty in benignant guise.

The sentence is vacated, and this matter is remanded to the trial court for re-sentencing in conformity with this opinion.

LAMBERT, LEIBSON and REYNOLDS, JJ., concur. SPAIN, J., dissents by separate opinion, in which STEPHENS, C.J., joins. WINTERSHEIMER, J., dissents by separate opinion.

1 . See KRS 532.110(l)(c).

2 . "(2) The authorized maximum terms of imprisonment for felonies are:

"(a) For a Class A felony, not less than twenty (20) years nor more than life imprisonment..]" (Emphasis added.)

3 . "532.070. Court modification of felony sentence. — (1) When a sentence of imprisonment tor a felony is fixed by a jury pursuant to KRS 532.060 and the trial court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that the maximum term fixed by the jury is unduly harsh, the court may modify that sentence and fix a maximum term within the limits provided in KRS 532.060 for the offense for which the defendant presently stands convicted.”