CRIMINAL LAW – PFO; Reneer instructions: William Sanders v. Commonwealth of Kentucky (SC 6/25/2009)

William Sanders v. Commonwealth of Kentucky
2008-SC-000118-MR June 25, 2009
Opinion by Justice Venters; all sitting.

Sanders appealed his convictions for first-degree robbery and PFO-1, arguing, in part, that his PFO conviction was based on a prior conviction for possession of drug paraphernalia which is forbidden by KRS 532.080(8). The Commonwealth acknowledged the error, but argued it was harmless because evidence was presented at trial that Sanders had four other felony convictions—any of which they claimed would have supported PFO status. The Supreme Court ordered a new sentencing phase trial on the grounds that it could not be presumed that the specific prior offense listed in the instruction made no difference, since under Adkins, a jury is entitled to disbelieve evidence of prior convictions. The Court declined to review under the palpable or harmless error standards since the conviction directly violated the statute which defines the crime.

The Court also noted that the verdict form for the PFO charge did not conform to the standards of Reneer. Under Reneer, a jury must first be instructed to fix the penalty on the underlying charge, then be instructed to determine if the defendant is guilty of being a PFO, and, if so, the jury must then set the enhanced penalty to be served in lieu of the sentence for the underlying offense. The Court stated that the model verdict form in Cooper’s Kentucky Instructions to Juries, Criminal §§ 12.41-12.43 is adequate only if it is made clear to the jury that a sentence for the underlying offense must be fixed in every case. Justice Scott concurred in part and dissented in part, contending that the erroneous use of the possession of drug paraphernalia conviction as a basis for the PFO was harmless, and the sentence should have been affirmed.

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