CRIMINAL – SENTENCING: LAND V. COM. (COA 7/20/2007)

LAND V. COM.
CRIMINAL:   SENTENCING
2006-CA-001099
PUBLISHED: AFFIRMING
PANEL: VANMETER PRESIDING; NICKELL, STUMBO CONCUR
COUNTY: FAYETTE
DATE RENDERED: 7/20/2007

CA affirmed Land’s conviction for Burglary in the 2nd Degree and being a Persistent Felony Offender in the Second Degree.  TC properly denied Defendant’s motion for a mistrial following the admission of evidence concerning an original charge during the sentencing hearing.  Under KRS1 532.055(2)(a)(2), the Commonwealth is permitted to introduce “[t]he nature of prior offenses for which he was convicted.” At sentencing, the Commonwealth is permitted to divulge some details of the indictment or charge. Maxie v. Commonwealth, 82 S.W.3d 860, 865-66 (Ky. 2002).  CA agreed with the trial court that a generic mention of a charge of “theft of mail matter,” while admittedly the mention of a Class D felony, would be insignificant to a jury. Thus, any error in reading the charge prior to amendment would have been harmless. RCr 9.24.

CA dismissed Land’s argument that error resulted from the jury’s failure to properly complete the sentencing form, i.e., the jurors’ failure to impose a punishment for burglary in the second degree, before the panel’s discharge. Although the defense objected once the incomplete form was discovered, after the jury was discharged, this objection was untimely and therefore not preserved.  the jury set the penalty within the range authorized by the PFO statute, and Land received a sentence which was authorized by law. In addition, the parties declined the trial court’s offer to review the jury’s verdict prior to the jury’s discharge. Thus, the jury’s failure to complete the sentencing form for the underlying offense was a procedural rather than a substantive defect, and further sentencing deliberations were unnecessary after the jury was discharged. The trial court’s reconvening of the jury does not affect the fact that the jury’s recommended sentence on the PFO charge was, and remained, 20 years.

Digested by Scott C. Byrd

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