Dunn v. Com., 85-SC-52-MR
| Decision Date | 19 December 1985 |
| Docket Number | No. 85-SC-52-MR,85-SC-52-MR |
| Citation | 703 S.W.2d 874 |
| Parties | Gene Morris DUNN, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Frank W. Heft, Jr., J. David Niehaus, Office of the Jefferson Dist. Public Defender, Louisville, for appellant.
David L. Armstrong, Atty. Gen., Frankfort, C. Lloyd Vest, II, Asst. Atty. Gen., for appellee.
Appellant was convicted of possession of a Schedule II narcotic and sentenced after trial as a first degree persistent felony offender to a term of 20 years. Two issues are presented on this matter of right appeal.
The first error asserted by appellant concerns the exclusion of certain evidence during the trial in chief. This evidence was taken by avowal and related to the participation by appellant, an admitted drug addict, in a program of rehabilitation in Jefferson County, and described the programs and facilities available. The stipulated purpose of this evidence was to permit counsel for appellant to argue to the jury that they should fine the appellant rather than incarcerate him so he might continue in the programs. The statute under which appellant was convicted is KRS 218A.990(7), which provides a penalty range of from one to five years, or a fine of from $3,000 to $5,000, or both, which offense is a Class D felony under KRS 532.020(1)(a).
In considering the alleged error of excluding this evidence, we note that no argument is made, nor can it be, that said prohibition in any way affected the determination of guilt or innocence, but merely that it could have affected the sentence on the original charge. However, appellant herein was sentenced as a persistent felony offender in the first degree with that sentence to be served in lieu of the sentence assigned by the jury on the principal charge. The evidence which was excluded was not offered in mitigation of the persistent felony offender procedure pursuant to KRS 532.080. As we have stated, the felony of which the appellant was convicted was a Class D felony and his resulting sentence as a persistent felony offender was not affected by the exclusion of this evidence.
The second assignment of error concerns the persistent felony offender portion of the case. Pursuant to the requirement of Commonwealth v. Gadd, Ky., 665 S.W.2d 915 (1984), the appellant herein filed a motion to suppress the previous felony convictions which formed the basis of the PFO status of the appellant. We deem it necessary to discuss the procedure to be followed at such hearings, and to clarify the burden of proof necessary for the trial court to properly rule on motions filed pursuant to our opinion in Gadd. In researching those jurisdictions which have passed upon the question, we find...
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