Isby v. Commonwealth
| Decision Date | 05 May 2023 |
| Docket Number | 2022-CA-0560-MR |
| Parties | ALENNIS ISBY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Court of Appeals of Kentucky |
NOT TO BE PUBLISHED
BRIEFS FOR APPELLANT: Jennifer Wade Frankfort, Kentucky
BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Jenny L. Sanders Assistant Attorney General Frankfort Kentucky
BEFORE: CALDWELL, DIXON, AND ECKERLE, JUDGES.
We are presented with an unpreserved allegation of palpable error regarding erroneous sentencing phase jury instructions permitting a jury to recommend that a bail jumping sentence run concurrently with other sentences. Finding no palpable error, we affirm.
A Hardin County Grand Jury indicted Alennis Isby ("Isby") on multiple counts, including one count of first-degree promoting contraband, one count of tampering with physical evidence, and two counts of first-degree bail jumping.[1] The facts underlying the charges are not at issue, and Isby testified and admitted committing the first two counts. In short, Isby was arrested and during booking was found to have marijuana in his underwear, which Isby stated he had been carrying for his spouse to use. Isby attempted to throw the marijuana in the toilet during booking. He was released on bond and failed to appear for subsequent court appearances related to the aforementioned contraband and tampering charges, leading to the bail jumping charges. He denied committing the two counts of first-degree bail jumping, variously proffering justifications including confusion, being incarcerated, and not wanting to be re-incarcerated for sentences he received for other crimes as reasons for not attending his court dates.
A jury heard the evidence and found Isby guilty of three charges first-degree promoting contraband; tampering with physical evidence; and one count of first-degree bail jumping. Following the jury's verdict during the guilt phase, the Trial Court tendered proposed penalty phase jury instructions to the parties and asked for objections. The instructions included an option for the jury to recommend concurrent or consecutive sentences for each charge. Counsel for Isby noted that the maximum term allowable should be 20 years. Counsel for the Commonwealth then stated:
I believe one of these offenses are going to be mandated to run consecutive, because one was committed while he was on bond.... I just wouldn't get into it with the jury, because really they just make a recommendation to the Court on concurrent or consecutive and all that stuff, so I was just going to leave, I'm not, it's just, that, in my experience getting into the concurring or consecutive, that confuses, I just typically stay away from that as far as recommending what they do or decide, because the Court at the end of the day does [inaudible].
The Trial Court then ruled the issue was a sentencing issue that did not need to be included in the jury instructions. The Trial Court stated it would follow the law at sentencing, "whatever that law is." Counsel for Isby did not object.
During truth in sentencing, the jury further found Isby guilty of the PFO enhancement and recommended the minimum, five-year sentences on each charge, to run concurrently for a total sentence of five years. The Trial Court sentenced Isby in accordance with the jury's recommendation. The following day, the Commonwealth filed a motion to reconsider and argued that KRS[2] 533.060(3) mandated the bail jumping sentence run consecutively to the other sentences. The Trial Court held a hearing on the motion, found the original sentence to be an illegal sentence, and re-sentenced Isby to concurrent five-year sentences for first-degree promoting contraband and tampering with physical evidence, to run consecutively to a five-year sentence for first-degree bail jumping, for a total sentence of ten years to serve.
Isby appealed as a matter of right raising one issue on appeal did the Trial Court commit palpable error when it instructed the jury that the jury could recommend concurrent sentences on all counts? The Commonwealth responded alternatively that this alleged error is either invited error or does not constitute palpable error. We review these arguments seriatim.
The Commonwealth argued that Isby is estopped from raising any error with the jury instructions because he invited the error. "Generally, a party is estopped from asserting an invited error on appeal." Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky. 2011) (citing Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006)). Isby disagreed, noting that ultimately the Trial Court decided to give the jury instructions in spite of the issue being brought to the Trial Court's attention. Having thoroughly reviewed the record, we decline to find that Isby invited the alleged error.
The distinction between unpreserved error and invited error is important, as the latter constitutes a waiver that is not subject to appellate review. Quisenberry, 336 S.W.3d at 37-38. Such invited errors must arise from "invitations that reflect the party's knowing relinquishment of a right[.]" Id. at 38. For example, by requesting facilitation instructions, the defendant in Quisenberry waived any appellate allegation that there was insufficient evidence of facilitation. Id. Likewise, in Graves v. Commonwealth, 384 S.W.3d 144 (Ky. 2012), the other case relied upon by the Commonwealth, there was a known relinquishment of a right. There, defense counsel objected to a proposed instruction, the Commonwealth agreed with defense counsel's objection, and the Trial Court offered to change the instruction. Nonetheless, defense counsel affirmatively acquiesced to utilizing the proposed instruction, stating, "Yes, if they, ah, down the road somebody says I'm wrong for doing it, then I guess I'm wrong." Id. at 152. Those circumstances amounted to invited error. See also Rudd v. Commonwealth, 584 S.W.3d 742 (Ky. 2019) (); Thornton v. Commonwealth, 421 S.W.3d 372 (Ky. 2013) (same); Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011) ().
In the instant case, Isby made no such invitation. In fact, both the Commonwealth and Isby noted concerns with the sentencing range. Counsel for Isby noted that the sentence could not exceed 20 years, and the Commonwealth ostensibly objected to the minimum sentence by noting that one of the charges had to run consecutively to the others. The Trial Court nonetheless decided to use the proposed instructions as is and fix any errors at sentencing. The Trial Court then gave jury instructions that on their face did not limit the jury to recommending a sentence between ten and 20 years. While this case presents a close call on the invited error issue because Isby did not affirmatively state an objection when the Trial Court indicated it would give the instructions as is, our holding on this issue is heavily based on these unique facts from which we cannot discern Isby making an "invitation[] that reflect[s] the party's knowing relinquishment of a right[.]" Quisenberry, 336 S.W.3d at 38 (citing United States v. Perez, 116 F.3d 840 (9th Cir. 1997). Accordingly, we proceed to palpable error review.
Isby claims that the Trial Court committed palpable error when it instructed the jury that it could recommend a concurrent sentence on the bail jumping count. Though Isby concedes that KRS 533.060(3) and Moore v. Commonwealth, 990 S.W.2d 618 (Ky. 1999), require the bail jumping count to run consecutively to the other sentences, he claims there was a "significant probability" that had the jury been properly instructed it would have "structured the sentence to provide the leniency desired," i.e., their recommended five-year sentence instead of the statutorily required ten-year minimum sentence.
We agree with Isby that the jury instructions should not have permitted the jury to recommend a sentence below the statutory minimum. However, the error was not palpable and did not result in manifest injustice.
In criminal trials, "the trial court is obligated to instruct the jury on the whole law of the case[.]" Iraola-Lovaco v. Commonwealth, 586 S.W.3d 241, 247 (Ky. 2019) (quoting Turner v. Commonwealth, 544 S.W.3d 610, 625 (Ky. 2018)); see also RCr[3] 9.54. In spite of this obligation, a "timely objection in the trial court is always necessary to preserve the right of appellate review of a defectively phrased instruction[.]" Martin v. Commonwealth, 409 S.W.3d 340, 346 (Ky. 2013). Pursuant to RCr 10.26, we can nonetheless review whether instructions are defectively phrased and reverse if we determine the error is palpable, and "relief is necessary to avoid manifest injustice resulting from a defective instruction." Martin, 409 S.W.3d at 346. Manifest injustice is defined as an "error [that] so seriously affect[s] the fairness, integrity, or public reputation of the proceeding as to be shocking or jurisprudentially intolerable." Iraola-Lovaco, 586 S.W.3d at 245 (internal quotation marks omitted) (quoting Davidson v. Commonwealth, 548 S.W.3d 255, 261 (Ky. 2018), and Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009)).
Here the instruction permitted the jury to recommend a punishment less than that required by law. Isby's PFO-enhanced sentence should have ranged from ten years to 20 years, but the jury was permitted to recommend a sentence as short as five years. We note that generally a defendant cannot...
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