Burke v. Commonwealth
| Decision Date | 15 December 2016 |
| Docket Number | 2014–SC–000472–DG |
| Citation | 506 S.W.3d 307 |
| Parties | Devlin BURKE, Appellant v. COMMONWEALTH of Kentucky, Appellee |
| Court | United States State Supreme Court — District of Kentucky |
COUNSEL FOR APPELLANT: Kathleen Kallaher Schmidt, Department of Public Advocacy
COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Jeffrey Allan Cross, Assistant Attorney General
A Kenton County jury convicted Devlin Burke of three counts of second degree assault, one count of fourth degree assault, and being a persistent felony offender in the second degree. The jury recommended a sentence of seventeen-years' imprisonment. Following trial, the court imposed the recommended sentence and made a finding that Burke's actions constituted a hate crime under Kentucky Revised Statute (KRS) 532.031. Burke appealed his conviction to the Court of Appeals, arguing that KRS 532.031 is unconstitutional as written and as applied. He also argued that the trial court made a number of errors regarding the admission and exclusion of evidence and in instructing the jury. Although it found some errors occurred, the Court of Appeals affirmed. We granted discretionary review in order to address the issues raised by Burke, in particular, his argument that KRS 532.031 is unconstitutional. Having reviewed the record, we affirm Burke's convictions, although for somewhat different reasons than the Court of Appeals. However, we reverse the trial court's designation of Burke's second-degree assaults as hate crimes and remand for entry of a judgment consistent with this opinion.
The following is essentially undisputed. At approximately 1:00 a.m. on August 15, 2010, Burke, Erica Abney, Pam Keller, Tim Searp, and Charles Clark were sitting in Clark's car, which was parked in a gas station parking lot. Katie Meyer, Dee Sprague, Ondine Quinn, Connie Kohlman, and several others were walking across the gas station parking lot as they travelled from one neighborhood bar to another. As Sprague and Quinn passed behind Clark's car, Clark, who did not see them, began to back out of his parking space. Quinn hit the trunk of Clark's car twice and Sprague said, Keller and Abney began yelling at Quinn and Sprague from inside the car, and eventually everyone got out of the car. Keller and Abney confronted Quinn and Sprague while yelling sexually derogatory remarks at them. Searp ran after Kohlman, who was ahead of Quinn and Sprague, and he hit her, pushed her head against a wall, knocked her to the ground, and kicked her. Although Burke denied doing so, Meyer testified that she saw Burke kicking Kohlman and that Burke kicked her when she tried to protect Kohlman. Meyer also testified that, during this confrontation, Burke yelled, "fucking dykes" and "clit lickers," based on his apparent perception of the women's sexual orientation.
At some point a crowd gathered across the street from the gas station and a van pulled into the gas station parking lot. Although the timing is unclear from the witnesses' testimony, Burke, who by then had pulled out a knife, stabbed one of the men in the crowd, Christopher Pfeiffer, in the neck. The driver of the van, James Patton, and at least one of his passengers, Justin Sizemore, got out of the van and confronted Burke, who sliced Patton across the stomach. Burke also cut another passenger who was getting out of the van, Preston Akemon. The police arrived shortly thereafter and arrested Searp, Abney, and Burke.
Burke's defense was two-fold: he did not attack Kohlman or Meyer; and he was acting in self-defense when he stabbed Pfeiffer, Patton, and Akemon. In support of the first defense, Burke offered Searp's testimony that it was he who attacked Kohlman; that he never saw Meyer; and that Burke was not involved in that part of the altercation. As to self-defense, Burke testified that, when Keller and Abney got out of the car, he tried to get them to calm down and return to the car. He denied hitting Kohlman or Meyer and stated that Pfieffer and another man from the crowd came at him and wanted to fight. Burke testified that he began backing away from those two when he was confronted by Patton, who was armed with a hammer, Akemon, who was armed with a knife, and Sizemore. At that point, Pfieffer tackled Burke, and Burke stabbed Pfieffer in the neck to get away from him. Burke then stabbed Akemon and Patton as he made his way back to Clark's car. When he heard sirens, Burke threw away the knife and got in the car.
Based on the preceding, the jury convicted Burke of the crimes delineated above. We set forth additional facts as necessary below.
The various issues raised by Burke require us to apply different standards of review. Therefore, we set forth the appropriate standard as we address each issue.
Burke raises a number of issues regarding the constitutionality of KRS 532.031, Kentucky's "hate crimes" statute. Burke properly preserved the issues, which we review de novo. Greene v. Commonwealth , 349 S.W.3d 892, 898 (Ky. 2011). In applying that standard, we presume that the General Assembly did not intend for this statute to be unconstitutional. Rice v. Commonwealth , 492 S.W.3d 563 (Ky. 2016).
At the outset, we note that KRS 532.031 provides, in pertinent part, as follows:
KRS 532.031 is entitled "Hate crimes; finding; effect," and is commonly, if inaptly, referred to as the "hate crimes statute." A " ‘[c]rime’ [is] a misdemeanor or a felony." KRS 500.080(2). A " ‘[m]isdemeanor’ [is] an offense, other than a traffic infraction, for which a sentence to a term of imprisonment of not more than twelve (12) months can be imposed." KRS 500.080(10). And a " ‘[f]elony’ [is] an offense for which a sentence to a term of imprisonment of at least one (1) year in the custody of the Department of Corrections may be imposed." KRS 500.080(5). Thus, KRS 532.031, despite its title, does not create a crime because it does not impose any term of imprisonment.
All KRS 532.031 does is: (1) permit the trial court to use the designation of a hate crime as the sole basis to deny probation or some other form of conditional discharge; and (2) permit the Parole Board to consider that designation when delaying or denying parole. However, the statute does not mandate the use of the designation of a hate crime in either instance, it simply permits its use; and the designation is but one of several factors a court can consider when denying probation1 and the Parole Board can consider in delaying or denying parole.2 See KRS 533.010 and KRS 439.340. Thus, while KRS 532.031 may have some impact on how much time a defendant ultimately serves, it has no impact on the length of a defendant's sentence. Burke's reliance on opinions analyzing the persistent felony offender and death penalty statutes is therefore misplaced because the opinions in those cases address statutory provisions that directly affect the sentence imposed. And, as noted above, KRS 532.031 has no impact on sentences.
Likewise, Burke's reliance on cases addressing KRS 439.340, which provides that certain offenders must serve 85% of a sentence before parole eligibility, is misplaced, because those cases deal with a mandate regarding parole eligibility. Again, as noted above, KRS 532.031 does not mandate the amount of time that must be served prior to parole eligibility. It simply states that the designation may be used to deny parole.
As to the constitutionality of KRS 532.031, we note that "[p]arole is a privilege and its denial has no constitutional implications." Stewart v. Commonwealth , 153 S.W.3d 789, 793 (Ky. 2005). Likewise, probation is not a right but "a privilege or a ‘species of grace extended to a convicted criminal’ for his welfare and the welfare of organized society." Ridley v. Commonwealth , 287 S.W.2d 156, 158 (Ky. 1956) (citing Darden v. Commonwealth , 277 Ky. 75, 125 S.W.2d 1031, 1033 (1939) ). The granting of parole is wholly at the discretion of the Parole Board and the granting of probation is wholly within the discretion of the trial court. See Stewart , 153 S.W.3d at 793, and Ridley , 287 S.W.2d at 158. Therefore, because KRS 532.031 mandates nothing and has no impact on any constitutionally protected right, we discern no constitutional infirmity in the statute as written.
Burke makes several inter-related arguments with regard to the constitutionality of KRS 532.031 as applied. We address each separately, to the extent possible.
Burke argues that he was entitled to pre-trial notice that the Commonwealth would seek hate-crime designation because the...
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