SC lacked jurisdiction to consider and rule on merits of defendant’s unpreserved challenge to constitutionality of violent offender statute: BENET V. COM (SC 5/22/2008)

CRIMINAL:  Criminal – Statutory Challenge
DATE RENDERED: 5/22/2008

SC affirmed the judgment sentencing him to twenty years’ imprisonment for first-degree sodomy and five years’ imprisonment for first-degree sexual abuse, to be served consecutively, for a total of twenty-five years imprisonment. Benet did not properly preserve his argument that KRS 439.3401 ("violent offender statute") is unconstitutional. The Court of Appeals’ statement in Sherfey v. Sherfey, 74 S.W.3d 777, 781 n.7 (Ky.App. 2002) that a reviewing court has the power to review improperly preserved "as applied" constitutional challenges must be overruled as being inconsistent with the plain, unambiguous language of KRS 418.075. A defendant automatically becomes a violent offender at the time of his or her conviction of an offense specifically enumerated in KRS 439.3401(1) regardless of whether the final judgment of conviction contains any such designation. TC has the discretion to decline to follow a jury’s recommendation regarding whether a sentence should be served concurrently or consecutively, regardless of any parole eligibility implications for a defendant, overruling Smith v. Commonwealth, 806 S.W.2d 647 (Ky. 1991).

Digested by Scott C. Byrd
Olgin and Byrd

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