Wilson v. Commonwealth

765 S.W.2d 22, 1989 Ky. LEXIS 13, 1989 WL 9322

• Court: Kentucky Supreme Court
• Decided: February 9, 1989
• Docket: No. 88-SC-50-MR
• Status: Published

Opinions

WINTERSHEIMER, Justice.

This appeal is from the imposition of a life sentence by the circuit court judge upon resentencing for a wanton murder conviction which Wilson had previously received.

The sole issue is whether Wilson was entitled to be sentenced by a jury and not by the circuit judge.

Originally this Court affirmed a wanton murder conviction based on a jury verdict but reversed the sentence of life imprisonment without parole for twenty-five years because the jury failed to find the existence of a statutory aggravating factor before they sentenced Wilson pursuant to KRS 532.025(3).

On resentencing, the trial judge refused to allow Wilson to be sentenced by a jury and after considering a range of sentences from twenty years to life, he sentenced Wilson to life.

KRS 29A.270(1) provides that a defendant shall have a right to a jury trial in all criminal prosecutions. RCr 9.84(1) indicates that when the jury returns a guilty verdict it shall fix the degree of offense and the penalty, except where the penalty is fixed by law. Franklin v. Commonwealth, Ky., 490 S.W.2d 148 (1973) indicates that unless a defendant waives a defect in the verdict, RCr 9.84 gives him a procedural right to have the jury establish a punishment.

KRS 532.055(2) requires that upon a return of a guilty verdict by the jury, the court shall conduct a sentencing hearing before the jury and the jury will determine the punishment to be imposed. Only in the event that the jury is unable to agree on a sentence shall the judge impose the sentence. KRS 532.055(4).

Clearly, under Kentucky law a criminal defendant has a statutory right to have his sentence set by a jury. Wilson has not received proper jury sentencing as required by our statutes and rules of criminal procedure. The trial judge is not vested with the authority to abrogate a criminal defendant’s right to jury sentencing by speculating on what sentence the jury would have imposed if properly instructed.

This Court vacates the sentence imposed by the circuit judge and orders a new sentencing hearing by a jury.

STEPHENS, C.J., and COMBS, LAMBERT and LEIBSON, JJ., concur. VANCE, J., dissents by separate opinion in which GANT, J., joins.