Com. v. Johnson

• Decision Date: 21 September 1995
• Docket Number: No. 94-SC-588-TG,94-SC-588-TG
• Citation: 910 S.W.2d 229
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Donald Herb JOHNSON, Appellee.
• Court: Supreme Court of Kentucky

Page 229

910 S.W.2d 229

COMMONWEALTH of Kentucky, Appellant, v.Donald Herb JOHNSON, Appellee.

No. 94-SC-588-TG.

Supreme Court of Kentucky.

Sept. 21, 1995.

Rehearing Denied Dec. 21, 1995.

Chris Gorman, Attorney General, Michael A. Wright, Assistant Attorney General, Special Prosecutions Division, David A. Smith, John E. Swain, Jr., Assistant Attorneys General, Criminal Appellate Division, Frankfort, for appellant.

Michael L. Williams, Kelly A. Gleason, Assistant Public Advocates, Capital Trial Unit, Frankfort, for appellee.

LAMBERT, Justice.

The issue on appeal is whether, upon an unconditional guilty plea, the Commonwealth is entitled to present its case for punishment to a jury for its verdict prior to imposition of final judgment.The trial court held that the Commonwealth was without any such right and this was in accord with appellee's contention.Pursuant to KRS 22A.020, the Commonwealth took an interlocutory appeal and we granted transfer.

On June 17, 1994, appelleeDonald Herb Johnson entered an unconditional plea of guilty in the Perry Circuit Court to the charge of murder and to the charges of first degree robbery, first degree burglary, and two counts of first degree sexual abuse.His guilty pleas were accepted.Thereafter, the Commonwealth, seeking the death penalty, requested that the court empanel a jury for the purpose of recommending punishment.Appellee objected, insisting that he was entitled to have his punishment fixed by the trial court without recommendation or intervention of a jury.After briefs were filed and the parties heard, the trial court held that no jury would be empaneled and that it alone would fix punishment.

The Commonwealth contends that its right to insist upon a jury verdict as to punishment is secured by RCr 9.26(1) and numerous decisions of this Court including Commonwealth v. Corey, Ky., 826 S.W.2d 319(1992).Appellee insists, to the contrary, that RCr 9.84(2) controls the outcome; that RCr 9.26 relates only to the determination of guilt and innocence; that Commonwealth v. Corey supports his contention; and that the Commonwealth's other cited cases were rendered prior to adoption of RCr 9.84 with the result that they have little or no applicability to this case.

As indicated heretofore, the parties have debated at length the effect of Commonwealth v. Corey upon the case at bar.Each had found language and discovered meaning which is urged as outcome determinative.As such, it is necessary to carefully consider this authority to determine what effect it may have.

At issue in Corey was whether the trial court, over objection of the Commonwealth, could accept a conditional guilty plea which effectively prevented any sentence greater than life imprisonment.Id. at 320.We held that it could not on grounds that such had the effect, inter alia, of eliminating the Commonwealth from the process.We stated that whether to engage in plea bargaining is a matter reserved to the sound discretion of the prosecuting authority and quoted from Commonwealth v. Reyes, Ky., 764 S.W.2d 62(1989), to the effect that there is no constitutional right to plea bargain.Corey, 826 S.W.2d at 321.To emphasize the Commonwealth's discretion as to whether it should plea bargain, we said that RCr 9.26 "seems to confer an absolute right to a jury trial upon either the defendant or the Commonwealth."Id.Clearly, however, there was no consideration of a case such as this in which the defendant's guilty plea is wholly unconditional.

For his Corey claim, appellee has embraced that portion which reiterates the absolute right of a defendant to unconditionally plead guilty to the crime charged.In circumstances where the prosecution is intransigent with respect to plea bargaining, a circumstance appellee contends prevailed here, Corey stated that a defendant could plead guilty and depend "on the wisdom of the trial court to impose an appropriate sentence."Id.From this, appellee concludes that he may "waive the jury experience" by entering an unconditional guilty plea and having punishment fixed solely by the trial court.

Despite a superficial appeal in appellee's contention, it fails to recognize that with or without a jury, the final sentencing determination will be by the court; that the jury verdict is no more than a recommendation.Thus, the right to have the trial court impose sentence upon a plea of guilty is not infringed by a jury verdict.Moreover, as with the Commonwealth's claimed right to a jury trial, in factually inapposite circumstances, appellee's contention is similarly flawed.Quite simply, Corey was decided in a context significantly different from that which prevails here.In view of the factual differences, appellee was on notice to make his guilty plea decision with due regard for the applicable rules of criminal procedure.

While we acknowledge that language in Corey is capable of being construed as supporting the views of either of these parties, we regard it as sufficient to say that the cases differ so greatly as to render Corey virtually irrelevant to the decision here.

The heart of this case is in a proper interpretation of RCr 9.26(1) and the extent to which it may have been modified by RCr 9.84(2).By its plain language, RCr 9.26(1) requires the consent of the Commonwealth as well as approval of the court for a defendant's waiver of a jury trial to be effective.Despite the absence of any limiting language, appellee contends that the jury trial contemplated by the rule is only the determination of guilt or innocence, and that RCr 9.84(2) secures his right to waive jury sentencing upon his unconditional plea of guilty.Appellee concedes, however, that prior to the 1989 modification of RCr 9.84, the Commonwealth would have been entitled to the relief sought here; that without RCr 9.84(2), RCr 9.26(1) would be controlling.

Appellee has argued persuasively that the Constitution of Kentucky fails to secure any right of jury sentencing; that the constitutional right to a jury trial secured by § 7 relates only to the determination of guilt or innocence.KY. CONST. § 7.Lee v. Buchanan, Ky., 264 S.W.2d 661(1954);Ward v. Hurst, 300 Ky. 464, 189 S.W.2d 594(1945);Wilson v. Commonwealth, 141 Ky. 341, 132 S.W. 557(1910).The Commonwealth agrees with this interpretation and its validity would appear to be essentially beyond reasonable dispute.In reply, however, the Commonwealth observes that it does not claim a constitutional right to jury-recommended sentencing and reiterates its exclusive reliance on RCr 9.26(1).

The reach of RCr 9.26(1) is limited to "cases required to be tried by a jury...."Whether recommendation of punishment in a death penalty case is such a case is pivotal to the outcome here.Accordingly, we must examine the authorities to arrive at an answer.In circumstances not unlike these, in Lycans v. Commonwealth, Ky., 562 S.W.2d 303(1978), the Court observed that "the Commonwealth had a right to and did select a jury to fix a penalty...."Id. at 305.For this proposition, the Court relied upon Commonwealth v. Howard, Ky., 287 S.W.2d 926(1956), an action for certification of the law in which the trial court had concluded that by virtue of a guilty plea, no evidence as to surrounding circumstances would be heard.Holding this to be error, and recognizing that the statutes provided different degrees of punishment for crimes depending on the facts and circumstances, the Court held:

A plea of guilty does not prevent, or render unnecessary, the proof of all pertinent facts and circumstances that will aid the jury in assessing a proper penalty.We have frequently held that, following a plea of guilty, the Commonwealth may introduce evidence to increase the punishment to be inflicted, and the defendant may produce evidence in an effort to mitigate the punishment.

Id. at 927.These authorities, along with many others, make the facile assumption that either party is entitled to a jury trial and no particular distinction is made between the guilt and punishment phases of the trial.Gall v. Commonwealth, Ky., 607 S.W.2d 97(1980);Hayes v. Commonwealth, Ky., 470 S.W.2d 601(1971);andTriplett v. Commonwealth, 272 Ky. 714, 114 S.W.2d 1108(1938).As such, we have encountered no authority which directly controls the issue here.

In death penalty cases, jury sentencing is deeply ingrained in Kentucky law.By virtue of statutes, rules of Court, and decisions, participation by a jury in this momentous governmental event has been regarded as indispensable except upon concurrence of all involved.KRS 532.025; RCr 9.26; RCr 9.84;Gall v. Commonwealth, Ky., 607 S.W.2d 97(1980).While the importance of a defendant's right to insist upon jury sentencing is obvious, the significance of the public's right of participation in the process should not be taken lightly.As the death penalty is a possible punishment for only the most heinous of crimes, and with due regard for the legitimate public interest in law enforcement, the verdict of a jury should be heard by the court prior to final sentencing except upon agreement of all parties.

Despite the language of RCr 9.26 and against the backdrop of our history and tradition of jury sentencing in death penalty cases, appellee asks that we construe RCr 9.84(2) so as to eliminate the Commonwealth's right to demand a jury when the defendant pleads guilty.This we are unable to do.RCr 9.84(2) would appear to have been enacted to eliminate any possible contention that a capital defendant's right to insist upon jury sentencing may be abridged.It recognizes that one accused of capital murder may be without a defense to the crime charged and wish to plead guilty, but nevertheless may seek punishment other than death from a jury based on a vast array of factors which might lead to such a conclusion.To construe RCr 9.84(2) as undermining the Commonwealth's right to insist upon a jury as secured by RCr 9.26 vastly exceeds the...