RENDERED: APRIL 4, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1388-MR
TINA M. SIMMONS APPELLANT
APPEAL FROM BATH CIRCUIT COURT v. HONORABLE WILLIAM EVANS LANE, JUDGE ACTION NO. 22-CR-00057
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, A. JONES, AND LAMBERT, JUDGES.
ACREE, JUDGE: Appellant Tina Simmons appeals her sentence from the Bath
Circuit Court, alleging errors during the sentencing phase. We affirm.
BACKGROUND
In September 2022, a Bath County grand jury indicted Appellant Tina
Simmons on charges of first-degree trafficking in a controlled substance and illegal
possession of drug paraphernalia. Roughly one year later, on October 30, 2023, Simmons entered an open plea of guilty to the charges. A jury was empaneled for
the sentencing determination.
Kentucky State Police Trooper Ben Allen testified for the
Commonwealth as follows. On May 16, 2022, law enforcement was looking for
Michael Simmons, Appellant’s husband, for his suspected involvement in the theft
of catalytic converters. After locating a vehicle parked at Heather Turner’s house
matching a given description of Appellant’s vehicle, police stopped to see if
Michael was present. Heather answered the door and informed officers that
Michael was not present. In so doing, police saw Appellant asleep on the couch,
clutching an eyeglass case.
Police woke Appellant to ask for her permission to search the suspect
vehicle. She consented. Their search revealed drug paraphernalia, but nothing was
believed to be related to the theft investigation.
Officers returned to the house to speak with Appellant and noticed she
no longer had the eyeglass case with her on the couch. Believing the eyeglass case
to be holding drugs, police asked Appellant to produce it. She handed the case to
the officers. It contained approximately 18 grams of suspected methamphetamine,
baggies wrapped in rubber bands, a hypodermic needle, a spoon, and other drug
paraphernalia. Appellant was arrested and charged.
-2- At sentencing, the jury returned a recommendation of ten years on the
trafficking charge and twelve months on the paraphernalia charge. Appellant now
appeals her sentence as a matter of right.
I. Officer Akers’ testimony was not so misleading as to be fundamentally unfair. Appellant argues that inaccurate information presented during the
sentencing phase resulted in manifest injustice. She concedes this issue is
unpreserved; we thus review for palpable error pursuant to RCr1 10.26 (“A
palpable error which affects the substantial rights of a party may be considered
by . . . an appellate court on appeal, even though insufficiently raised or preserved
for review, and appropriate relief may be granted upon a determination that
manifest injustice has resulted from the error.”).
The Commonwealth called Paul Akers to testify as a Probation and
Parole Officer. When asked what the parole eligibility threshold is for Appellant’s
charges, Akers responded “between five and ten,” meaning “for five years would
be one year and for ten years would be two years.” (Video Record (VR) 10/30/23,
10:24:05). The Commonwealth clarified this to mean that once twenty percent of
the sentence has been served, the individual is “potentially eligible for parole.”
(VR 10/30/23, 10:24:20).
1 Kentucky Rules of Criminal Procedure.
-3- Akers responded as follows when asked what other factors can impact
parole eligibility:
Akers: They can get meritorious good time, which could depend on their behavior or educational things, or different programs. It could be up to – it says not to exceed more than seven days a month – a calendar month.
Commonwealth: Okay, so, based on your experience, does an individual who is sentenced to a certain term of years, do they serve that full amount of time? If a person is supposed to be sentenced to five years, would they likely serve five years exactly?
Akers: Not if they’re acting like they’re supposed to. They get their good time, and they’re parole eligible at twenty percent. And it depends on the charge; I would imagine something of this nature, she would make parole the first time. Commonwealth: So, based on what you’re testifying to today, is that, say the jury was to give her ten years, she’d only be looking at certain two of those years before she got parole?
Akers: That’s what my opinion would be.
Commonwealth: And, in fact, with the credits that she likely could get, that would be even less than two years before she was looking at parole? Akers: Yes.
-4- Commonwealth: It could be as low as fourteen months?
Akers: Yes.
(VR 10/30/23, 10:24:30). On cross-examination, Akers further elaborated on his
experience regarding parole:
Counsel: If she were to receive the minimum five-year sentence, is there any way she could get out sooner than a year at twenty percent of that? Is a year the soonest she would get out as far as parole is concerned?
Akers: The way I understand, you can get “good time.”
....
Counsel: When you’re saying the “good time” credit, is that what you hear people talk about, that a state year is like seven months and twenty-one days?
Akers: I’ve heard that.
Counsel: If she were to receive, let’s say, a ten- year sentence, she at minimum would be looking at two years to serve before she would get parole, is that correct?
Akers: I thought the good time applied. But I don’t do the DOC part of the prison.
(VR 10/30/23, 10:26:55). This testimony, Appellant argues, was “so misleading as
to be fundamentally unfair.” (Appellant’s Brief at 6). She further says “this Court
-5- must now speculate how much this error attributed to [her] lengthy sentence.”
(Appellant’s Br. at 6-7). We are unpersuaded.
We first note the Commonwealth is statutorily authorized to offer
testimony at sentencing regarding minimum parole eligibility. KRS2
532.055(2)(a)1. Appellant provides caselaw regarding the individualized nature of
parole, which, as she correctly argues, is never guaranteed. See Young v.
Commonwealth, 129 S.W.3d 343, 345 (Ky. 2004); Seymour v. Colebank, 179
S.W.3d 886, 890 (Ky. App. 2005). Beyond this, however, Appellant does not
direct us to any authority helpful to our analysis of whether such testimony
constitutes manifest injustice warranting reversal. We cannot say any of Akers’
testimony constituted an error, much less palpable error.
Akers never testified that Appellant was guaranteed parole. He
provided factual testimony – of which Appellant does not contest the accuracy –
regarding the amount of time served that would be required for Appellant’s parole
eligibility. Moreover, he qualified his testimony by saying it was merely his
opinion and that he is not involved with the DOC part of the prison. Although
Appellant correctly notes there was no guarantee she would ever be granted parole,
this contention is not at issue since Akers never stated as much. We cannot reverse
on these grounds.
2 Kentucky Revised Statutes.
-6- II. The Commonwealth did not commit prosecutorial misconduct.
Simmons also raises the issue of prosecutorial misconduct based on
several comments by the Commonwealth regarding her irreconcilable guilty plea
and testimony that she was not in possession of drugs, which the Commonwealth
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RENDERED: APRIL 4, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1388-MR
TINA M. SIMMONS APPELLANT
APPEAL FROM BATH CIRCUIT COURT v. HONORABLE WILLIAM EVANS LANE, JUDGE ACTION NO. 22-CR-00057
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, A. JONES, AND LAMBERT, JUDGES.
ACREE, JUDGE: Appellant Tina Simmons appeals her sentence from the Bath
Circuit Court, alleging errors during the sentencing phase. We affirm.
BACKGROUND
In September 2022, a Bath County grand jury indicted Appellant Tina
Simmons on charges of first-degree trafficking in a controlled substance and illegal
possession of drug paraphernalia. Roughly one year later, on October 30, 2023, Simmons entered an open plea of guilty to the charges. A jury was empaneled for
the sentencing determination.
Kentucky State Police Trooper Ben Allen testified for the
Commonwealth as follows. On May 16, 2022, law enforcement was looking for
Michael Simmons, Appellant’s husband, for his suspected involvement in the theft
of catalytic converters. After locating a vehicle parked at Heather Turner’s house
matching a given description of Appellant’s vehicle, police stopped to see if
Michael was present. Heather answered the door and informed officers that
Michael was not present. In so doing, police saw Appellant asleep on the couch,
clutching an eyeglass case.
Police woke Appellant to ask for her permission to search the suspect
vehicle. She consented. Their search revealed drug paraphernalia, but nothing was
believed to be related to the theft investigation.
Officers returned to the house to speak with Appellant and noticed she
no longer had the eyeglass case with her on the couch. Believing the eyeglass case
to be holding drugs, police asked Appellant to produce it. She handed the case to
the officers. It contained approximately 18 grams of suspected methamphetamine,
baggies wrapped in rubber bands, a hypodermic needle, a spoon, and other drug
paraphernalia. Appellant was arrested and charged.
-2- At sentencing, the jury returned a recommendation of ten years on the
trafficking charge and twelve months on the paraphernalia charge. Appellant now
appeals her sentence as a matter of right.
I. Officer Akers’ testimony was not so misleading as to be fundamentally unfair. Appellant argues that inaccurate information presented during the
sentencing phase resulted in manifest injustice. She concedes this issue is
unpreserved; we thus review for palpable error pursuant to RCr1 10.26 (“A
palpable error which affects the substantial rights of a party may be considered
by . . . an appellate court on appeal, even though insufficiently raised or preserved
for review, and appropriate relief may be granted upon a determination that
manifest injustice has resulted from the error.”).
The Commonwealth called Paul Akers to testify as a Probation and
Parole Officer. When asked what the parole eligibility threshold is for Appellant’s
charges, Akers responded “between five and ten,” meaning “for five years would
be one year and for ten years would be two years.” (Video Record (VR) 10/30/23,
10:24:05). The Commonwealth clarified this to mean that once twenty percent of
the sentence has been served, the individual is “potentially eligible for parole.”
(VR 10/30/23, 10:24:20).
1 Kentucky Rules of Criminal Procedure.
-3- Akers responded as follows when asked what other factors can impact
parole eligibility:
Akers: They can get meritorious good time, which could depend on their behavior or educational things, or different programs. It could be up to – it says not to exceed more than seven days a month – a calendar month.
Commonwealth: Okay, so, based on your experience, does an individual who is sentenced to a certain term of years, do they serve that full amount of time? If a person is supposed to be sentenced to five years, would they likely serve five years exactly?
Akers: Not if they’re acting like they’re supposed to. They get their good time, and they’re parole eligible at twenty percent. And it depends on the charge; I would imagine something of this nature, she would make parole the first time. Commonwealth: So, based on what you’re testifying to today, is that, say the jury was to give her ten years, she’d only be looking at certain two of those years before she got parole?
Akers: That’s what my opinion would be.
Commonwealth: And, in fact, with the credits that she likely could get, that would be even less than two years before she was looking at parole? Akers: Yes.
-4- Commonwealth: It could be as low as fourteen months?
Akers: Yes.
(VR 10/30/23, 10:24:30). On cross-examination, Akers further elaborated on his
experience regarding parole:
Counsel: If she were to receive the minimum five-year sentence, is there any way she could get out sooner than a year at twenty percent of that? Is a year the soonest she would get out as far as parole is concerned?
Akers: The way I understand, you can get “good time.”
....
Counsel: When you’re saying the “good time” credit, is that what you hear people talk about, that a state year is like seven months and twenty-one days?
Akers: I’ve heard that.
Counsel: If she were to receive, let’s say, a ten- year sentence, she at minimum would be looking at two years to serve before she would get parole, is that correct?
Akers: I thought the good time applied. But I don’t do the DOC part of the prison.
(VR 10/30/23, 10:26:55). This testimony, Appellant argues, was “so misleading as
to be fundamentally unfair.” (Appellant’s Brief at 6). She further says “this Court
-5- must now speculate how much this error attributed to [her] lengthy sentence.”
(Appellant’s Br. at 6-7). We are unpersuaded.
We first note the Commonwealth is statutorily authorized to offer
testimony at sentencing regarding minimum parole eligibility. KRS2
532.055(2)(a)1. Appellant provides caselaw regarding the individualized nature of
parole, which, as she correctly argues, is never guaranteed. See Young v.
Commonwealth, 129 S.W.3d 343, 345 (Ky. 2004); Seymour v. Colebank, 179
S.W.3d 886, 890 (Ky. App. 2005). Beyond this, however, Appellant does not
direct us to any authority helpful to our analysis of whether such testimony
constitutes manifest injustice warranting reversal. We cannot say any of Akers’
testimony constituted an error, much less palpable error.
Akers never testified that Appellant was guaranteed parole. He
provided factual testimony – of which Appellant does not contest the accuracy –
regarding the amount of time served that would be required for Appellant’s parole
eligibility. Moreover, he qualified his testimony by saying it was merely his
opinion and that he is not involved with the DOC part of the prison. Although
Appellant correctly notes there was no guarantee she would ever be granted parole,
this contention is not at issue since Akers never stated as much. We cannot reverse
on these grounds.
2 Kentucky Revised Statutes.
-6- II. The Commonwealth did not commit prosecutorial misconduct.
Simmons also raises the issue of prosecutorial misconduct based on
several comments by the Commonwealth regarding her irreconcilable guilty plea
and testimony that she was not in possession of drugs, which the Commonwealth
referred to as perjury.
When prosecutorial misconduct is reviewed for palpable error, it is to
be reversed only if the alleged misconduct was flagrant. Dickerson v.
Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016). Misconduct is considered
“flagrant” when it renders the trial fundamentally unfair. Id. (internal quotation
marks omitted). Courts consider four factors to decide whether the purported
misconduct was flagrant: “(1) whether the remarks tended to mislead the jury or to
prejudice the accused; (2) whether they were isolated or extensive; (3) whether
they were deliberately or accidentally placed before the jury; and (4) the strength
of the evidence against the accused.” Id.
Appellant testified at sentencing. She contradictorily stated the drugs
were not hers, after freely entering a guilty plea prior to sentencing. Specifically,
her testimony was that “there was no dope with me, I didn’t do it,” and “there was
no dope there before the law got there.” (VR 10/30/2023, 10:31:00). Purportedly
seeking to determine which story was the truth – her guilty plea or her subsequent
testimony – the Commonwealth asked, “Ms. Simmons, I am attempting to figure
-7- out for which thing you’re guilty of perjury today. Did you stand before this judge
earlier today and plead guilty?” (VR 10/30/2023, 10:38:09). Appellant explained
that although the drugs were on her, she was not trafficking; she then stated that
her guilty plea was a lie “because actually [she is] innocent of it.” (VR
10/30/2023, 10:38:56).
The right to cross-examine a witness to impeach their credibility or to
show motive is well established as fundamental to a fair trial. Williams v.
Commonwealth, 569 S.W.2d 139, 145 (Ky. 1978). Impeaching credibility is
precisely what the Commonwealth did. We cannot find any unfairness or flagrant
misconduct in the Commonwealth engaging in this fundamental principle of cross-
examination.
Appellant also takes issue with the Commonwealth discussing her
lack of candor in its closing argument. Similarly, however, the Kentucky Supreme
Court has “repeatedly held that a prosecutor is permitted wide latitude during
closing arguments and is entitled to draw reasonable inferences from the
evidence[.]” Commonwealth v. Mitchell, 165 S.W.3d 129, 132 (Ky. 2005). As it
follows, a prosecutor is permitted to “make reasonable comment upon the evidence
and make a reasonable argument in response to matters brought up by the
defendant.” Driver v. Commonwealth, 361 S.W.3d 877, 889 (Ky. 2012) (quoting
Childers v. Commonwealth, 332 S.W.3d 64, 73 (Ky. 2010)). The Commonwealth
-8- here directly commented upon the sworn testimony given by Appellant and drew
reasonable inferences from her plea of guilt. Although she argues the statements
“were intended to mislead the jury,” we cannot agree. It appears clear to us that
the statements were factually accurate and presented in such a way to impeach her
credibility. Presenting impeachment evidence is not, on its face, prosecutorial
misconduct. It was reasonable for the Commonwealth to infer that one of the two
statements were false since they were mutually exclusive. Appellant cannot cry
misconduct simply because her testimony was unfavorably contradictory. These
comments and inferences plainly do not amount to prosecutorial misconduct.
CONCLUSION
Finding no error, we affirm the judgment and sentence of the Bath
County Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kayla D. Deathrage Russell Coleman Frankfort, Kentucky Attorney General of Kentucky
Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
-9-