Com. v. Reneer

• Decision Date: 06 August 1987
• Docket Number: No. 86-SC-780-CL,86-SC-780-CL
• Citation: 734 S.W.2d 794
• Parties: COMMONWEALTH of Kentucky, Movant, v. John Edgar RENEER, Respondent.
• Court: Supreme Court of Kentucky

Page 794

734 S.W.2d 794

COMMONWEALTH of Kentucky, Movant, v. John Edgar RENEER, Respondent.

No. 86-SC-780-CL.

Supreme Court of Kentucky.

Aug. 6, 1987.

As Amended Aug. 6, 1987.

David L. Armstrong, Atty. Gen., Frankfort, John Paul Runyon, Ian Sonego, Sp. Asst. Attys. Gen., Pikeville, for movant.

J. David Niehaus, Frank W. Heft, Jr., Daniel T. Goyette, Jefferson Dist. Public Defenders, Louisville, for amicus curiae.

Mark A. Posnansky, Paul F. Isaacs, Asst. Public Advocates, Frankfort, Samuel R. Conkright, Jr., Asst. Public Advocate, Owensboro, for respondent.

OPINION OF THE COURT CERTIFYING THE LAW

The question is whether or not K.R.S. 532.055 (The Truth in Sentencing Statute) violates Section 28 of the Kentucky Constitution relating to the separation of powers among the separate departments of state government.

K.R.S. 532.055 provides as follows:

"(1) In all felony cases, the jury in its initial verdict will make a determination of not guilty, guilty, guilty but mentally ill, or not guilty by virtue of insanity, and no more.

"(2) Upon return of a verdict of guilty or guilty but mentally ill against a defendant, the court shall conduct a sentencing hearing before the jury, if such case was tried before a jury in the hearing the jury will determine the punishment to be imposed within the range provided elsewhere by law. The jury shall recommend whether the sentences shall be served concurrently or consecutively.

"(a) Evidence may be offered by the Commonwealth relevant to sentencing including:

"1. Minimum parole eligibility, prior convictions of the defendant, both felony and misdemeanor;

"2. The nature of prior offenses for which he was convicted;

"3. The date of the commission, date of sentencing and date of release from confinement or supervision from all prior offenses;

"4. The maximum expiration of sentence as determined by the division of probation and parole for all such current and prior offenses; and

"5. The defendant's status if on probation, parole, conditional discharge, or any other form of legal release;

"(b) The defendant may introduce evidence in mitigation. For purposes of this section, mitigating evidence means evidence that the accused has no significant history of criminal activity which may qualify him for leniency. This section shall not preclude the introduction of evidence which negates any evidence introduced by the Commonwealth; and

"(c) Upon conclusion of the proof, the court shall instruct the jury on the range of punishment and counsel for the defendant may present arguments followed by the counsel for the Commonwealth. The jury shall then retire and recommend a sentence for the defendant.

"(3) All hearings held pursuant to this section shall be combined with any hearing provided for by KRS 532.080. This section shall not apply to sentencing hearings provided for in KRS 532.025.

"(4) In the event that the jury is unable to agree as to the sentence or any portion thereof and so reports to the judge, the judge shall impose the sentence within the range provided elsewhere by law."

John Edgar Reneer was indicted for the offense of first-degree sodomy and as a first-degree felony offender. The offense was alleged to have been committed in 1985. K.R.S. 532.055 became effective in July, 1986. Reneer was brought to trial in August, 1986. Thus, the offense of which he was accused was allegedly committed before the effective date of the statute, and his trial began after the effective date.

Before the trial commenced, the trial court ruled that the provisions of K.R.S. 532.055 relating to a bifurcated trial in felony cases were unconstitutional because the statute attempted a legislative infringement upon the power of the Supreme Court to prescribe rules of practice and procedure for the Court of Justice.

Reneer was tried by a jury and found not guilty. Because of the impact of K.R.S. 532.055 upon hundreds of pending criminal trials throughout the Commonwealth, we granted the motion of the Commonwealth to certify the law as to the constitutionality of K.R.S. 532.055.

We hold that K.R.S. 532.055 is procedural in nature. Its provisions deal with the procedure to be followed in the trial and sentencing of criminal felony trials. The statute does not add or remove any element necessary to convict of any crime, and it does not increase or lower the penalty that can be imposed upon conviction.

Following the enactment of the statute, the jury is permitted to hear some evidence in the sentencing phase of a trial that would not have been admissible theretofore, but this evidence does not go to the issue of guilt or innocence. It neither increases or lessens the penalty or the amount of proof required to convict, and the statute making such evidence competent is likewise procedural. Murphy v. Commonwealth, Ky., 652 S.W.2d 69 (1983).

The Supreme Court of this Commonwealth has the authority to prescribe rules of practice and procedure in the courts of this Commonwealth. Kentucky Constitution, Section 116. Because K.R.S. 532.055 is a legislative attempt to invade the rule making prerogative of the Supreme Court by legislatively prescribing rules of practice and procedure, it violates the separation of powers doctrine enunciated in Section 28 of the Kentucky Constitution.

Nevertheless, it has not been the policy of this court to nullify as a matter of course all legislation which infringes to some extent upon a proper function of the judiciary. In Ex Parte Farley, Ky., 570 S.W.2d 617 (1978), we said:

"It is not our disposition to be jealous or hypertechnical over the boundaries that separate our domain from that of the legislature. Where statutes do not interfere or threaten to interfere with the orderly administration of justice, what boots it to quibble over which branch of government has rightful authority? We respect the legislative branch, and in the name of comity and common sense are glad to accept without cavil the application of its statutes pertaining to judicial matters, just as we accept KRS 532.075, even though it has been argued with much force that there is no constitutional basis for a statute enlarging the scope of appellate review beyond the matters of record in the proceeding under consideration."

Id. at 624-625.

In O'Bryan v. Commonwealth, Ky., 634 S.W.2d 153 (1982), this court considered a statute which established procedures for a change of venue in criminal cases. We said:

"Until this statute is superseded by this Court, under the Court's paramount rule-making authority, it stands as enacted by the General Assembly under the principles of comity elucidated in Ex Parte Auditor of Public Accounts, Ky., 609 S.W.2d 682 (1980). Under the statute's clear and unambiguous terms, a hearing in open court is required."

Id. at 158.

In Commonwealth v. Littrell, Ky., 677 S.W.2d 881 (1984), we noted the fact that this court could have, but had not, preempted a procedural statute by the promulgation of a rule of procedure, and we held that the fact that this court had not preempted the statute by the adoption of the pertinent rule of procedure was in itself tacit approval of the efficacy of the statute.

Perhaps our view was best expressed in Ex Parte Auditor of Public Accounts, Ky., 609 S.W.2d 682 (1980), as follows:

"The correct principle, as we view it, is that the legislative function cannot be so exercised as to interfere unreasonably with the functioning of the courts, and that any unconstitutional intrusion is per se unreasonable, unless it be determined by the court that it can and should be tolerated in a spirit of comity. The converse also is true, and in Lunsford v. Commonwealth, Ky., 436 S.W.2d 512 (1969), this court recognized that its own rule authorizing imprisonment for failure to execute a peace bond was an unconstitutional infringement upon the legislative prerogative. And in Raney, supra, for the same reason, we declined the invitation to trespass upon the exclusive right of the Senate to determine the qualifications and disqualifications of its own members. Such an inquiry is, of course, of a judicial nature, but the Constitution excludes it from the judicial process.

"Inevitably, there is and always will be a gray area in which a line between the legislative prerogatives of the General Assembly and the rule-making authority of the courts is not easy to draw. The policy of this court is not to contest the propriety of legislation in this area to which we can accede through a wholesome comity. There is, for example, the statute providing for the disqualification of judges, KRS 26A.015, as contrasted with SCR 4.300 Canon 3, C(1), in which the same subject-matter is included as a part of the Code of Judicial Conduct. There is also the matter of court costs and fees. See KRS 24A.270. Even the statutory creation of a small claims division within the structure of the constitutionally-established district court, KRS 24A.230, is not beyond the pale of an honest difference of opinion. But we hold the General Assembly in the highest respect, and much prefer cooperation over conflict. It has done great work in accommodating the statutes to the new and hitherto-untried requirements of the 1975 Judicial Amendment, and to the extent that we are able to accept its judgments without leaving seeds of future jeopardy to the integrity of the judicial system we shall continue to do so." (Emphasis ours.)

Id. at 688.

Although it is apparent that K.R.S. 532.055 constitutes an encroachment by the General Assembly upon the prerogatives of the Judiciary, it is, nevertheless, not an unreasonable encroachment if it can be accepted under the principles of comity.

We look then to the specific provisions of K.R.S. 532.055 to determine whether the act poses any unreasonable interference with the orderly functioning of the courts.

Sections 1 and 2 of the act require that in felony cases the jury's determination of guilt or innocence shall be bifurcated from the assessment...