Northcutt v. Commonwealth

RANDALL NORTHCUTT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2019-CA-0143-MR

Commonwealth of Kentucky Court of Appeals

OCTOBER 2, 2020

NOT TO BE PUBLISHED

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 18-CR-00131

OPINION

AFFIRMING

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BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.

KRAMER, JUDGE: Randall Ray Northcutt was convicted in Fayette Circuit Court of escape in the second degree¹ and of being a persistent felony offender in the first degree ("PFO I").² He now appeals. Upon review, we affirm.

On May 9, 2014, Northcutt was convicted of third-degree burglary in Fayette Circuit Court and thereafter began serving a three-year sentence of incarceration. On September 1, 2017, he was released from prison and allowed to serve the remainder of his sentence³ through participation in the Home Incarceration Program ("HIP"). As a condition of his home incarceration, Northcutt was required to wear an ankle bracelet and was prohibited from leaving the designated area where he was confined (i.e., his home at 1600 Clayton Avenue, and part of its curtilage, in Lexington, Kentucky) without permission of his HIP caseworker, Drew Chism. The ankle bracelet contained an electronic transmitter which, if broken, was designed to send an email notification of a "master tamper violation" to HIP.

Approximately three weeks after Northcutt began his participation in HIP, the electronic transmitter in his ankle bracelet was broken; HIP received an email to that effect. After verifying the master tamper violation through HIP's monitoring website, Chism tried, unsuccessfully, to contact Northcutt by telephone. Thereafter, he attempted to locate Northcutt at Northcutt's home address and was likewise unsuccessful. But, using geolocation software, Chism found Northcutt's ankle monitor on a road outside the area where Northcutt hadbeen allowed to be under the terms of his HIP agreement. Upon finding it, Chism noted the ankle monitor's strap had clearly been cut. Based upon Chism's investigation, a warrant was issued for Northcutt's arrest. Northcutt was eventually arrested on December 12, 2017, after authorities located him at 1880 Dunkirk Drive in the Cardinal Valley area of Lexington, Kentucky - an area well outside the permitted vicinity of his home incarceration.

Ultimately, Northcutt was indicted by a grand jury in Fayette Circuit Court for second-degree escape and PFO I. The PFO I charge was based on two underlying felony convictions: (1) Northcutt's 2014 third-degree burglary conviction; and (2) Northcutt's earlier conviction, in 2007, of second-degree burglary. The case proceeded to a jury trial on November 27, 2018; Northcutt elected to present no evidence at trial, and the Commonwealth's evidence was consistent with what is set forth above. Upon the conclusion of the guilt phase of the trial, the jury found Northcutt guilty of second-degree escape. Prior to the completion of the penalty phase of trial, Northcutt entered a conditional plea of guilty to the PFO I charge. Pursuant to his conditional plea, Northcutt reserved the right to raise the issues presented in this appeal, and the Commonwealth recommended the minimum sentence of one year on the second-degree escape conviction, enhanced to the minimum 10 years by the PFO I conviction. On January 15, 2019, the trial court rendered its final judgment sentencing Northcuttto 10 years' imprisonment. Northcutt now appeals. Additional facts will be discussed as necessary.

As to the substance of his appeal, Northcutt's assumption throughout these proceedings has been that a prior felony conviction is an essential precondition of second-degree escape. And, armed with that assumption, Northcutt makes the following two arguments.

First, Northcutt reasons that because second-degree escape must be predicated upon a prior felony conviction, it therefore qualifies as an "enhanced" offense. Based upon that, he argues, the rule prohibiting "double enhancement" applies.⁴ In other words, he contends that if his prior felony conviction for third-degree burglary was the basis for enhancing his escape charge to second-degree escape, his prior felony conviction for third-degree burglary could not also have been the basis for prosecuting him for PFO I. Therefore, he claims, it was error for the trial court to permit the Commonwealth to prosecute him for PFO I. Second, Northcutt reasons if all the jury needed to know (for purposes of finding him guilty of second-degree escape) was that he had been convicted of a felony, then it was unnecessary for the Commonwealth to go into any further detail regarding the nature of his prior felony conviction. Accordingly, Northcutt argues, the trial court "prejudiced" his defense by denying his requests, as set forth in his motion in limine, to: (1) require the Commonwealth to accept his stipulation, made under the auspices of Old Chief v. United States,⁵ "that he was a convicted felon subject to the rules of Probation and Parole"; and (2) "exclude at trial all other evidence introduced to prove [he] was a convicted felon."

However, Northcutt's assumption underlying his appeal is founded upon a misapprehension of the law: A prior felony conviction is not a precondition of second-degree escape because that offense "does not distinguish between different statuses of offenders based on past offenses." Lawton v. Commonwealth, 354 S.W.3d 565, 572 (Ky. 2011). Indeed, that much is apparent from a cursory reading of KRS 520.030, which sets forth the offense as follows:

(1) A person is guilty of escape in the second degree when he escapes from a detention facility or, being charged with or convicted of a felony, he escapes from custody.

(2) Escape in the second degree is a Class D felony.

From the plain language of this statute, a person who escapes from a detention facility, who was merely in the detention facility due to a misdemeanor offense, is guilty of second-degree escape. See, e.g., Commonwealth v. Johnson, 615 S.W.2d 1 (Ky. App. 1981).

A person who escapes from custody, who was in custody merely due to a felony charge, is guilty of second-degree escape. See, e.g., Weaver v. Commonwealth, 156 S.W.3d 270 (Ky. 2005).

Moreover, under the Kentucky Supreme Court's interpretation of this statute, a person convicted of a felony is guilty of second-degree escape if, and only if, that person escapes from custody while serving a felony sentence. See Lawton, 354 S.W.3d at 573. Thus, a convicted felon who is not serving a felony sentence would not be guilty of second-degree escape if he or she is taken into custody due to a misdemeanor offense and, while in custody (as opposed to a detention facility), then escaped.

Accordingly, it is apparent that Northcutt's first argument set forth above, founded upon his incorrect assumption of second-degree escape, lacks merit. There was no "double enhancement."

His second argument also lacks merit. To review, Northcutt argues the trial court "prejudiced" his defense by denying his requests, as set forth in his motion in limine, to: (1) require the Commonwealth to accept his stipulation, madeunder the auspices of Old Chief, "that he was a convicted felon subject to the rules of Probation and Parole"; and (2) "exclude at trial all other evidence introduced to prove [he] was a convicted felon." At the onset, however, we note that even where our Courts have applied the rule of Old Chief, we have explained that a violation of that rule does not automatically warrant reversal. Specifically:

In Anderson v. Commonwealth, [281 S.W.3d 761 (Ky. 2009), the Kentucky Supreme Court] adopted the limited holding from Old Chief, that "a defendant charged with being a felon in possession of a firearm may stipulate to having a prior felony conviction, even without the Commonwealth's consent." 281 S.W.3d 761, 762 (Ky. 2009). In Anderson, the defendant was charged with possession of a handgun by a convicted felon and the Commonwealth sought to introduce evidence of Anderson's prior felony conviction for receiving stolen property and escape. Id. Anderson offered to stipulate to being a convicted felon to avoid potential prejudice from disclosing the details of his prior convictions, but the trial court denied his request. Id. at 762-63. The Commonwealth introduced the details to the jury, and Anderson was ultimately convicted of the firearm possession charge. Id. at 763.

In Old Chief, the United States Supreme Court acknowledged "that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant." 519 U.S. at 185, 117 S.Ct. 644. Further, the Court concluded that "there is no cognizable difference between the evidentiary significance of an admission and of the legitimately probative component of the official record the prosecution would prefer to place in evidence." Id. at 191, 117 S.Ct. 644. In Anderson, this Court decided to join the overwhelming majority of courts by adopting Old Chief, and holding that:

upon request, a criminal defendant charged with being a felon in possession of a firearm may stipulate (with the Commonwealth's agreement) or admit (if the Commonwealth does not agree) that the defendant has been previously convicted of a felony. Such a stipulation or admission would mean that the jury would simply be informed that the defendant was a convicted felon, for purposes of the felon in possession of a firearm charge, but would not be informed of the specifics of the defendant's previous felony conviction(s).

281 S.W.3d at 766.

. . . . However, "no error . . . or defect in any ruling . . . is ground for granting a new trial or for setting aside a verdict . . . unless it appears to the court that the denial of such relief would be inconsistent with substantial justice." Id. (quoting Kentucky Rule of Criminal Procedure (RCr) 9.24). "A non-constitutional evidentiary error may be deemed harmless . . . if the reviewing court can say with fair assurance that the

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