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Cox v. Commonwealth

Supreme Court of Kentucky

May 23, 2013

STEVEN R. COX APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

ON APPEAL FROM HARDIN CIRCUIT COURT HONORABLE KEN HOWARD, JUDGE NO. 08-CR-00370

COUNSEL FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate

COUNSEL FOR APPELLEE: Jack Conway Attorney General of Kentucky James Coleman Shackelford Assistant Attorney General

OPINION

ABRAMSON, JUSTICE

Steven Cox appeals as of right from a Judgment of the Hardin Circuit Court sentencing him as a second-degree persistent felon to a twenty-year term of imprisonment for the crime of first-degree possession of a controlled substance, firearm enhanced, in violation of Kentucky Revised Statute (KRS) 218A.1415 and KRS 218A.992, and to a concurrent ten-year term of imprisonment for the crime of possession of a handgun by a convicted felon, as prohibited by KRS 527.040(2). Cox maintains that a parole officer's incomplete and inaccurate testimony regarding sentence credits potentially available to parolees rendered the penalty phase of his trial fundamentally unfair. We disagree and affirm Cox's sentence.

RELEVANT FACTS

In the summer of 2008, an officer of the Radcliff Police Department found cocaine, a stun-gun, and a loaded semi-automatic pistol in Cox's automobile. Cox was then only twenty-two years old. In short order a Hardin County Grand Jury indicted Cox, already a convicted felon, for, among other things, illegal possession of a controlled substance and illegal possession of a handgun. Following a jury trial in May 2009, Cox was convicted of those offenses and, in accord with the jury's recommendation, he was sentenced to twenty years in prison—ten years for each offense, the two sentences to be served consecutively. During the penalty phase of Cox's trial, the Commonwealth argued that Cox's five prior misdemeanor offenses—offenses which included carrying a concealed deadly weapon, harassment with physical contact, and fourth-degree assault—together with his prior felony conviction for second-degree assault—striking the victim with a handgun—demonstrated his readiness to engage in increasingly serious forms of violence. Moreover, Cox had not been deterred by lesser forms of criminal sanction—he was on felony probation at the time of the current offenses. Given these factors, the prosecutor argued that a significant penalty, twenty years, would be an appropriate sentence. The jury agreed.

Because the Commonwealth had failed to introduce properly certified copies of Cox's prior misdemeanor convictions, and because of the strong probability that those earlier convictions had factored into the jury's sentencing decision, this Court vacated Cox's sentence and remanded for a new penalty phase trial. Cox v. Commonwealth, 2010 WL 3377752 (Ky. 2010). At that second trial, the Commonwealth introduced valid evidence of all of Cox's prior offenses and once again argued that Cox's distressing history—eight offenses by the time he was twenty-two, the increasingly violent nature of those offenses including the presence of handguns, and the rapid recurrence of offenses in utter disregard of prior sanctions and probations—cried out for a stiff penalty. Again the prosecutor urged the jury to impose a twenty-year sentence, and again the jury responded by returning a verdict of twenty years in prison.

Now, because the jury was told by an experienced parole officer, correctly for the most part and without objection by Cox, that if Gox were to be granted parole the duration of that parole would likely turn out to be less than the nominal length of his remaining sentence, Cox contends that his sentencing was "manifestly unjust" pursuant to Kentucky Rule of Criminal Procedure (RCr) 10.26. He insists that this matter should therefore be remanded for yet a third jury to pass upon the sentence for his latest crime. Because we are convinced that, even if it was not as clear as it might have been, the parole officer's testimony did not amount to palpable error, we reject Cox's contention and affirm.

ANALYSIS

At Cox's second sentencing trial, a parole officer was asked to explain how long a person who had been sentenced to ten years in prison and who had been granted parole after having served twenty percent (20%) of that sentence, or two years, would be on parole. The officer testified that while "theoretically" a person remained on parole for the duration of his sentence—eight years in the proposed hypothetical—the actual period of parole was likely to be less than that.

Prosecutor. If a person is released from the prison system on parole, you said you supervise them, is that correct?
Officer. Yes.
Prosecutor. How are they being supervised by you? How long is ...

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