Cummings v. Commonwealth
| Decision Date | 29 September 2017 |
| Docket Number | NO. 2012-CA-001953-MR,2012-CA-001953-MR |
| Parties | DENNIS CUMMINGS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM HOPKINS CIRCUIT COURT
On April 21, 2009, Cummings was indicted on second-degree rape (Kentucky Revised Statute (KRS) 510.050)—a Class C felony; assault in the fourth-degree (KRS 508.030)—a Class A misdemeanor; and, being a second-degree persistent felony offender (KRS 532.080). The charges involved an incident occurring on March 9, 2009. On November 10, 2009, Cummings pleaded guilty pursuant to a plea agreement with the Commonwealth to the amended count of third-degree rape (KRS 510.060)—a Class D felony, and dismissal of the remaining offenses. On April 9, 2010, the circuit court entered its Judgment and Sentence consistent with the plea agreement sentencing Cummings to five years in prison for third-degree rape. The judgment did not indicate that Cummings was subject to post-incarceration supervision under KRS 532.043.
On June 26, 2012, Cummings filed a Motion to Amend Sentence challenging the imposition of post-incarceration supervision on various grounds. On September 26, 2012, the circuit court summarily denied the motion stating that Cummings had not been "sentenced to imprisonment conditionally discharged." On November 7, 2012, Cummings filed a Notice of Appeal from the circuit court's order denying his motion to amend. The appeal was held in abeyance pending resolution in the Kentucky Supreme Court of the case of McDaniel v. Commonwealth, 495 S.W.3d 115 (Ky. 2016), which dealt with the same issues raised by Cummings in his motion. After the Supreme Court rendered its opinion in McDaniel affirming in part on other grounds and vacating in part, this case was returned to this Court's docket for further proceedings.
In the circuit court, Cummings challenged the post-incarceration supervision requirement on the following grounds claiming: (1) it represented asentence "enhancement" imposed on the basis of judicial fact-finding in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); (2) it was a judicially imposed harsher sentence than the sentence bargained for with the Commonwealth, contrary to Bailey v. Commonwealth, 70 S.W.3d 414 (Ky. 2002) (); and (3) it was a "second" sentence for the given crime, in violation of the Double Jeopardy Clause of the United States Constitution, which clause generally forbids that crimes be punished more than once. The circuit court denied the motion under the belief that Cummings was not subject to the requirements of KRS 532.043 because the court had not included it in the final judgment. The circuit court is mistaken because the requirements of KRS 532.043 are imposed on defendants convicted of certain crimes as detailed in the statute as a matter of law.
While a former version of KRS 532.043 provided that "any person convicted of, pleading guilty to, or entering an Alford plea to a felony [sex] offense . . . shall be sentenced to a period of conditional discharge[,]" the amended version that became effective in July 2006 (pursuant to which Cummings was sentenced) provided that the felon "shall be subject to a period of postincarceration supervision[.]"1 (Emphases added.) Under the 2006 version of the statute, the five-year period of post-incarceration supervision was not imposed by the trial court as a part of Cummings's sentence. Instead, upon his conviction as a sex offender sentenced in April 2010 for the crime committed in March 2009, Cummings automatically became subject to the period of post-incarceration supervision as a matter of law. In Jones v. Commonwealth, 200 S.W.3d 495, 496-97 (Ky. App. 2006), this Court stated: (Emphasis in original). Thus, the omission of any mention of the statute or of its requirements in the court's written judgment is not determinative, and Cummings was bound by the statute's provisions.
Nevertheless, the rule in this jurisdiction is that the judgment of a lower court can be affirmed for any reason in the record. Fischer v. Fischer, 348 S.W.3d 582, 591 (Ky. 2011); Emberton v. GMRI, Inc., 299 S.W.3d 565, 576 (Ky. 2009) (). "If an appellate court is aware of a reason to affirm the lower court's decision, it must do so, even if on different grounds." Mark D. Dean, P.S.C. v. Commonwealth Bank & Trust Co., 434 S.W.3d 489, 496 (Ky. 2014) (citing Fischer v. Fischer, 197 S.W.3d 98, 103 (Ky. 2006)). Moreover, the construction and interpretation of a statute and any amendments to the statute is a matter of law subject to de novo review. See Stage v.Commonwealth, 460 S.W.3d 921, 923 (Ky. App. 2014); Commonwealth v. Kash, 967 S.W.2d 37, 43-44 (Ky. App. 1997) ().
Cummings alleges in his appellate brief that he served out the initial five-year incarceration period on December 10, 2013, after the circuit court entered its order denying his motion to amend in September 2012. He further asserts that at some point, his post-incarceration supervision was revoked by Probation and Parole and he was returned to prison. The Parole Board subsequently ordered him to serve out the full five-year post-incarceration term, and he is currently incarcerated on that term.
Cummings's first argument that imposition of post-incarceration supervision violates due process as expressed in Apprendi is without merit. The rule established in Apprendi requires that, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S. Ct. at 2362-63. "[T]he 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403 (2004) (emphasis in original). With respect to KRS 532.043, there are no additional facts beyond those applicable to the underlying offense necessary to be determined to impose the post-incarceration supervision period. By pleadingguilty, Cummings waived the right to jury fact-finding and as part of the plea, he admitted the facts necessary to establish the offense of third-degree rape by acknowledging that he was over eighteen years of age at the time he had sexual relations with a fourteen-year-old female. See, e.g., McDaniel, 495 S.W.3d at 119 n.1 (); United States v. Yancy, 725 F.3d 596, 601 (6th Cir. 2013) (). This admission was sufficient to subject him to a sentence consisting of both the term of years for third-degree rape and post-incarceration supervision with additional incarceration upon revocation of that supervision.
Cummings also argues that the imposition of post-incarceration supervision constituted a judicially imposed harsher sentence than the sentence bargained for with the Commonwealth, contrary to Bailey v. Commonwealth, 70 S.W.3d 414 (Ky. 2002) (). However, the court in Bailey specifically stated:
The plain language of KRS 532.070(2) states that the statute can be used to modify a sentence "fixed by a jury" pursuant to KRS 532.060. "The literal language of the statute is both plain and unambiguous and must be given effect as written." Commonwealth v. Harrelson, Ky., 14S.W.3d 541, 547 (2000). See also Lynch v. Commonwealth, Ky., 902 S.W.2d 813 (1995). Therefore, KRS 532.070(2) can be applied by a trial judge where a sentence of imprisonment for a Class D felony is fixed by a jury, and only where it is fixed by a jury.
Bailey, 70 S.W.3d at 416. See also McDaniel, 495 S.W.3d at 119 n.2. To the extent that Cummings argues that inclusion of post-incarceration supervision represents a "harsher" sentence than he bargained for under the plea agreement, as noted above, the post-incarceration supervision provision is mandated by statute and is not imposed by the trial judge or subject to waiver or bargaining by the parties. During the guilty plea hearing, both Cummings and defense counsel told the court that he had been advised of the possible sentence that he could receive, which necessarily would have included post-incarceration supervision.2 Accordingly, Cummings has not shown that his sentence should be amended based on this argument.
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