Peyton v. Com.

• Decision Date: 22 May 2008
• Docket Number: No. 2006-SC-000343-MR.,2006-SC-000343-MR.
• Citation: 253 S.W.3d 504
• Parties: Christopher Shaheid PEYTON, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

253 S.W.3d 504

Christopher Shaheid PEYTON, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2006-SC-000343-MR.

Supreme Court of Kentucky.

May 22, 2008.

Shannon Dupree, Assistant Public Advocate, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Frankfort, George G. Seelig, Lebanon, KY, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

Appellant, Christopher Shaheid Peyton, was convicted by a Hopkins Circuit Court jury of three counts of first-degree trafficking in a controlled substance and of being a persistent felony offender in the first degree. For these crimes, Appellant was sentenced to a total of 34 years in prison. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). For the reasons set forth herein, we affirm Appellant's convictions, but reverse for a new sentencing.

The Hopkins Circuit Court grand jury returned two indictments against Appellant. Both indictments included two counts of first-degree trafficking in a controlled substance. Appellant's charges stemmed from a series of controlled drug buys performed by the Madisonville Police Department, the Hopkins County Sheriff's Department, and the Pennyrile Narcotics Task Force. The first controlled buy was on or about the afternoon of September 27, 2004. The informant used by the Madisonville Police Department to set up and purchase the drugs was Brian Lane. Lane was searched before making the purchase and outfitted with a wire to record any conversations. The police set up video surveillance near where the transaction was to occur. After waiting for a brief period, a van pulled up with an African-American male passenger. The police surveillance could not see the passenger's face, but Lane testified that Appellant was the passenger and that he sold him cocaine. The substance sold to Lane by Appellant tested positive for cocaine.

The second buy occurred on or about the evening of September 27, 2004. Lane was again the informant for the transaction. This time the dealer rode into the area on a bicycle and met with Lane to conduct the transaction. Lane, along with Detective Charles Cobb of the Pennyrile Narcotics Task Force, identified Appellant as the person on the bicycle. Again the substance purchased tested positive for cocaine.

The final transaction occurred on or about May 10, 2005. This time, informant Carl Haley was used for the purchase. Initially, Haley was in contact with an individual named McNarry, but Haley believed that he would ultimately make the drug purchase from a dealer named Mann. However, Detective Cobb testified that before Haley entered the shed where the drug deal was to take place, Mann left. Haley, being from out of town, did not personally know who he would be purchasing drugs from and could only identify the seller by what his contact called him. During the transaction, the seller was identified by the nickname "Black." Haley informed Detective Cobb of the seller's nickname. Detective Cobb asked the assistance of Officer Leslie Gregory of the Madisonville Police Department to see if he knew of any potential drug dealers in town who had the nickname "Black." Officer Gregory identified Appellant as possibly having that nickname.

The next day Detective Cobb asked Haley to join him at the courthouse because he had been told by Officer Gregory that Appellant would be present there on another matter. Haley was not informed of why he was to meet Detective Cobb until he reached the courthouse. Once at the courthouse Detective Cobb asked Haley if "Black" was present. Haley identified Appellant as "Black." Testimony indicated that Haley was not influenced by Detective Cobb in making his identification. Additionally, further testimony presented at trial indicates that twenty-five to thirty people were present at the time the identification was made. However, it is uncertain how many African-Americans were present.

Appellant was ultimately convicted of the three counts of trafficking and of being a persistent felony offender. He was sentenced to a total of thirty-four years in prison.

I. Although the jury instructions were proper, the trial court's sentencing was in error.

Appellant's first argument, which is unpreserved, is that the trial court's jury instructions improperly gave the jury the capacity to choose whether the sentences for Appellant's convictions would run concurrently or consecutively, since the court ultimately concluded that concurrent sentencing was not an option. As requested, we will review for palpable error. RCr 10.26.

Here, Appellant was convicted of three counts of trafficking in a controlled substance. These crimes were committed while Appellant was on parole.¹ Appellant now argues that the jury was improperly instructed as to sentencing because the trial court ignored the jury's sentence recommendations, and such instructions were erroneous in that they instructed as to an unavailable alternative. Specifically, Appellant claims that the trial court erred in instructing the jury that they could choose to run his terms consecutively or concurrently, as the court ultimately concluded otherwise. Moreover, Appellant alleges that had the jury known that their sentencing recommendations would not be followed there is a great likelihood they would have recommended a reduced sentence.

During sentencing, the jury was instructed, in sentencing instruction 11, "You, the jury, have convicted the Defendant of multiple felonies. You shall also decide whether the felony sentences shall be run concurrently (at the same time) or consecutively (one after the other)." Thereupon, the jury recommended sentences of seven, eight, and nine years for the three counts. The sentences were then doubled due to the persistent felony offender conviction. This enhanced the jury's recommendations to fourteen, sixteen, and eighteen years, respectively. The jury elected, as per their right, to run these sentences concurrently so that Appellant would serve a total of eighteen years. KRS 532.055(2); see Foley v. Commonwealth, 942 S.W.2d 876, 886 (Ky.1996).

At sentencing, however, the trial judge determined she could not sentence Appellant to concurrent terms. The judge concluded the sentences for the two counts in the first indictment should run concurrently, but the sentence for the count in the second indictment should run consecutively to the first indictment. This gave Appellant a thirty-four year sentence.

Accordingly, the crux of the present issue becomes whether the trial court properly applied KRS 533.060(2) in its treatment of Appellant's sentence. To answer, we must determine, then, whether Devore v. Commonwealth, 662 S.W.2d 829, 831 (Ky.1984) still presents good law.

KRS 533.060(2) mandates:

When a person has been convicted of a felony and is committed to a correctional detention facility and released on parole or has been released by the court on probation, shock probation, or conditional discharge, and is convicted or enters a plea of guilty to a felony committed while on parole, probation, shock probation, or conditional discharge, the person shall not be eligible for probation, shock probation, or conditional discharge and the period of confinement for that felony shall not run concurrently with any other sentence.

KRS 533.060(2) (emphasis added). This Court initially addressed KRS 533.060(2)'s impact on sentencing in Devore, where Chief Justice Stephens, writing for the majority, articulated that the General Assembly, through its enactment of KRS 533.060(2), sought to elicit certain consequences for felons who commit subsequent felonies while on probation or parole. Devore, 662 S.W.2d at 831. Consequently, in such instances, these ramifications are twofold:

(1) The defendant shall not (for the subsequent felony) be eligible for probation, shock probation or conditional discharge, and (2) The length of the person[']s sentence (again, for the subsequent felony conviction) shall not run concurrently with any other sentence. By obvious inference, the General Assembly has said that the prison sentence (for the second felony conviction) shall be run consecutively.

Id.

The Court went on to further explain that in enacting the statute, the legislature's intent was to institute stiffer penalties on those who commit subsequent felonies while paroled by "not having their subsequent sentences served concurrently." Id. It is undoubtedly true, as Devore recognizes, that the legislature's intent was to strengthen the ramifications for repeat offenders and those who have betrayed the position of trust they have been afforded by a grant of parole or probation. However, it is our belief here today that Devore sought to interpret this legislative intent with a much heavier hand than the statute, the legislature or the jails and prisons of this Commonwealth could have ever envisioned.

Devore posits that subsequent multiple-count felony convictions committed while on parole must be run consecutively to one another. And, indeed, this has been the courts' treatment of KRS 533.060(2) in many instances since Devore. However, the proper application of the statute under Devore's interpretation has been a source of conflict and confusion within the Commonwealth's courts for nearly twenty-four years now, stemming partly from the incongruous and excessive sentencing results which it may, in some instances, yield. Thus, under Devore, the trial courts' treatment of felony offenses committed while on parole has been anything but uniform.

Further adding to the confusion in applying KRS 533.060(2) under Devore is its seeming incompatibility with KRS 532.055(2), which states:

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...