CRIMES, ROBBERY: BUMPHIS V. COM. (COA 5/11/2007)

BUMPHIS V. COM.
CRIMINAL:  ROBBERY;  PHYSICAL FORCE
2006-CA-000693
PUBLISHED: AFFIRMING WITH ABRAMSON PRESIDING JUDGE AND STUMBO AND KNOPF CONCURRING
DATE RENDERED: 5/11/2007

Kentucky Revised Statute (KRS) 515.030(1) provides that "[a] person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft." Here, the victim, Miljan, attempted to prevent Bumphis’s escape after he was discovered in the back of Miljan’s store committing a theft. Rather than choosing to accept his fate after being discovered, Bumphis instead opted to force his way through the door blocked by Miljan. However, because Bumphis lacked the means to prevent him from doing otherwise, Miljan physically stopped Bumphis from fleeing. Under these circumstances, it would be unjust to reverse Bumphis’s conviction for robbery while sustaining a conviction in a case where the defendant successfully prevented resistance through striking first or drawing a weapon. Thus, while no Kentucky decision has directly addressed this question, CA held that a charge of robbery is established when a defendant, in the course of committing a theft, exercises or threatens physical force during an attempted escape in an effort to prevent or otherwise overcome resistance exerted by the victim.

Kentucky trial courts are no longer required to conduct a preliminary hearing into the constitutional underpinnings of a judgment of conviction offered to prove PFO status unless the defendant claims a complete denial of counsel in the prior proceeding. Applying this principle to the present matter, CA found no evidence in the record that Bumphis has alleged that he was completely denied the assistance of counsel in any of the prior convictions used by the Commonwealth to establish PFO status. Because of this, and further because the trial court was not the proper forum for Bumphis’s collateral attack on those convictions, the trial court’s decision to overrule Bumphis’s motion to suppress is affirmed.

Digested by Scott Byrd
www.olginandbyrd.com

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