Duncan v. Commonwealth

EMOSHIA DUNCAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

No. 2021-CA-0019-MR

Court of Appeals of Kentucky

November 5, 2021

APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE ERNESTO M. SCORSONE JUDGE ACTION NOS. 04-CR-00245-001 & 05-CR-00663

BRIEFS FOR APPELLANT: Whitney B. Browning Frankfort, Kentucky

BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort Kentucky

BEFORE: ACREE, COMBS, AND MAZE, JUDGES.

OPINION

MAZE JUDGE

Emoshia Duncan appeals from an order of the Fayette Circuit Court denying his motion to vacate or correct his sentence pursuant to CR^[1] 60.02(e). We conclude that the trial court abused its discretion by denying the motion because Duncan's sentence exceeded the maximum authorized by statute. Hence, we reverse and remand with directions to grant the motion and impose a new sentence within the statutory range.

On July 22, 2005, Duncan entered a conditional guilty plea to second-degree robbery, possession of a handgun by a convicted felon, first-degree fleeing or evading police, first-degree wanton endangerment, and being a persistent felony offender in the first degree. In exchange for his guilty plea, the Commonwealth agreed to dismiss several other felony charges and to recommend a total sentence of twenty-seven years' imprisonment. After accepting Duncan's guilty plea, the trial court imposed the recommended sentence. The Kentucky Supreme Court affirmed Duncan's conviction on the issues he reserved for appeal. Duncan v. Commonwealth, No. 2005-SC-0760-MR, 2006 WL 2456353 (Ky. Aug. 24, 2006).

No further pleadings appear in the record until January 14, 2020, when Duncan filed his current CR 60.02 motion. Duncan argued that his sentence exceeds the statutory twenty-year limit for aggregated sentences involving Class C or Class D felonies. See KRS^[2] 532.110(1)(c) and KRS 532.080(6)(b). He also pointed to the holding in McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010), which held such sentences void even when the defendant agreed to the sentence. Id. at 700-01. Consequently, Duncan argued that his sentence must be vacated and a new sentence of twenty years or less must be imposed.

The Commonwealth argued, and the trial court agreed, that the holding in McClanahan could not be applied retroactively. Since Duncan's sentence was valid under the case law at the time it was entered, the trial court concluded that Duncan was bound by the terms of his plea agreement. Duncan now appeals from the trial court's order denying his motion for relief under CR 60.02.

Duncan argues that he is entitled to relief under CR 60.02(e) because the sentence imposed is void as a matter of law. He first focuses on the language of KRS 532.110(1)(c), which provides as follows:

(1) When multiple sentences of imprisonment are

imposed on a defendant for more than one (1) crime . . . except that:

(c) The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed. In no event shall the aggregate of consecutive indeterminate terms exceed seventy (70) years[.]

(Emphasis added.)

Duncan further notes that KRS 532.080(6)(b) provides, in pertinent part:

If the offense for which he presently stands convicted is a Class C or Class D felony, a persistent felony offender in the first degree shall be sentenced to an indeterminate term of imprisonment, the maximum of which shall not be less than ten (10) years nor more than twenty (20) years.

(Emphasis added.)

Both statutes were in effect at the time Duncan entered his plea. However, the controlling case law at the time allowed a defendant to waive the maximum aggregate sentence limitation in KRS 532.110(1)(c) that otherwise would operate to his benefit. See Johnson v. Commonwealth, 90 S.W.3d 39, 44 (Ky. 2002), as modified (Jan. 13, 2003) and Myers v. Commonwealth, 42 S.W.3d 594, 597 (Ky. 2001).

After Duncan entered his plea, the Kentucky Supreme Court revisited the holdings of Johnson and Meyers in McClanahan. As in the current case, the defendant in McClanahan was charged with multiple Class C and Class D felonies. The defendant entered a guilty plea agreeing to a combination of consecutive and concurrent sentences which included a "hammer clause." As long as the defendant complied with the conditions of his release, the defendant would receive a total of ten-years' imprisonment. But if the defendant breached those conditions, he would be subject to consecutive sentences totaling forty years. McClanahan, 308 S.W.3d at 696.

When the defendant failed to appear for final sentencing and incurred additional criminal charges, the court invoked the hammer clause and imposed a thirty-five year sentence. Id. at 697. On appeal, the defendant argued that the sentence exceeded the twenty-year maximum permitted by KRS 532.110(1)(c) and KRS 532.080(6)(b). The Kentucky Supreme Court recognized that, under Johnson and Myers, a defendant could waive the statutory maximum sentence. McClanahan, 308 S.W.3d at 701.

Nevertheless, the Court found nothing in the language of the statutes to suggest that the General Assembly intended to excuse plea agreements from the mandatory provisions regarding the maximum aggregate sentence. Id. The Court further held that a trial court has no authority to impose a sentence outside of the statutory range.

Whether recommended by an errant jury or by the parties through a plea agreement, a sentence that is outside the limits established by the statutes is still an illegal sentence. We do not see how an illegal sentence set by a jury . . . does any more to "nullify the sentencing laws" than an illegal sentence imposed by a judge pursuant to a plea agreement. There is no sound rationale by which we should condemn the one as we condone the other. Under our Constitution, it is the legislative branch that by statute establishes the ranges of punishments for criminal conduct. It is error for a trial jury to disregard the sentencing limits established by the legislature, and no less erroneous for a trial judge to do so by the acceptance of a plea agreement that disregards those statutes.

Id.

Based on the holding of McClanahan, Duncan's twenty-seven year sentence would be clearly impermissible. However, there has been some question whether the holding is retroactive to sentences which became final before McClanahan was rendered. In an unpublished case, Rothfuss v. Commonwealth, No. 2010-CA-000117-MR, 2010 WL 3361769 (Ky. App. Aug. 27, 2010), this Court held that the holding of McClanahan may not be applied retroactively to guilty pleas which were valid at the time they were entered.

We are aware that Myers and Johnson were recently overruled by our Supreme Court in McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010), wherein the Court held any sentence imposed in excess of that allowed by KRS 532.110(1)(c) is void and unenforceable, regardless of whether the defendant had consented to such a sentence. However, the holding in McClanahan cannot be applied retroactively to justify the relief Rothfuss seeks. See Leonard v. Commonwealth, 279 S.W.3d 151, 160-61 (Ky. 2009) (generally, decisions are not applied retroactively). . . . Rothfuss has pointed us to no facts allowing us to conclude there are strong equities requiring a departure from the proscription against retroactive application of new decisions. To the contrary, Rothfuss has enjoyed a reduction in his charges from Class A felonies carrying the potential for a seventy-year term of imprisonment to Class C felonies carrying an actual sentence of only twenty-five years. In addition, Rothfuss is parole-eligible after serving twenty percent of his sentence rather than the eighty-five percent he would have been required to serve had he been convicted of the higher offenses. Finally, we note that although his conviction is nearly a decade old and he has had ample opportunity to do so, Rothfuss has not previously attacked his conviction and sentence on any ground. Thus, we conclude equity does not demand retroactive application of McClanahan.

Id. at *2.

This Court has followed the holding in Rothfuss in three other unpublished cases. Eads v. Commonwealth, No. 2010-CA-001318-MR, 2012 WL 512487 (Ky. App. Feb. 17, 2012); Hall v. Commonwealth, No. 2015-CA-001315-MR, 2016 WL 1558505 (Ky. App. Apr. 15, 2016); and Berry v. Commonwealth, No. 2015-CA-001897-MR, 2017 WL 4712777 (Ky. App. Oct. 20, 2017). The trial court relied upon these cases in its conclusion that McClanahan cannot be applied retroactively to Duncan's sentence. Although we cannot fault the trial court for following this Court's interpretation, we must conclude that the conclusion was erroneous as a matter of law.

We agree with the trial court that "[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Leonard, 279 S.W.3d at 159 (quoting Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989)). But in Phon v. Commonwealth, 545 S.W.3d 284 (Ky. 2018), the Kentucky Supreme Court distinguished between a new rule of procedural or constitutional law and a subsequent interpretation of a statute that was in effect at the time of sentencing. Id. at 301. In the case of the latter, the Court held that the new interpretation of a sentencing statute must be applied retroactively. Id.

The Court in Phon then went on to discuss the rule in McClanahan that a trial court lacks jurisdiction to impose a sentence outside the limits established by the statutes. Id. at 302...