Released for Publication March 20, 2014.
ON APPEAL FROM JEFFERSON CIRCUIT COURT. HONORABLE GEOFFREY P. MORRIS, JUDGE. NO. 10-CR-000215.
COUNSEL FOR APPELLANT: Daniel T. Goyette, Louisville Metro Public Defender of Counsel; James David Niehaus, Deputy Appellate Defender.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General; Todd Dryden Ferguson, Assistant Attorney General.
Appellant, Anthony Thornton, appeals from a judgment of the Jefferson Circuit Court convicting him of third-degree assault, third-degree criminal mischief, of being a first-degree persistent felony offender, and sentencing him to twenty years' imprisonment.
As grounds for relief Appellant contends that (1) palpable error occurred when the trial court failed to instruct the jury consistently with KRS 501.030, which requires that to be found guilty of a criminal offense the defendant must have engaged in a voluntary act which he was physically capable of performing; (2) palpable error occurred when the trial court failed to instruct on the burden of proof in relation to his insanity defense instruction; (3) palpable error occurred when the trial court failed to instruct the jury regarding his right not to testify during the penalty phase; (4) the final sentencing was unfair and denied him the benefit of KRS 532.070, which permits a trial court to modify an unduly harsh felony sentence; and (5) that the persistent felony offender enhanced twenty-year sentence imposed in this case for the third-degree assault conviction is arbitrary and, therefore, in violation of Section 2 of the Kentucky Constitution.
For the reasons stated below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Officers Darren Gibson and Laron Stoner were transferring Appellant within the Metro Corrections Center when he resisted their efforts and, without warning, punched Gibson in the face, bruising his cheek. As a result of the altercation, Appellant was charged with third-degree assault, third-degree criminal mischief, and of being a first-degree persistent felony offender. At trial, Appellant's defense was diminished mental capacity, and instructions on not guilty by reason of insanity and guilty but mentally ill were given. The jury found Appellant guilty of all charges and recommended, as relevant here, a one-year sentence on the third-degree assault charge, enhanced to twenty years as a result of the persistent felony offender conviction. A hearing date was set for the final sentencing. Appellant moved for a new trial.
Presiding Judge Barry Willett was temporarily unavailable for the final sentencing, and so Senior Judge Geoffrey Morris was assigned to the case. At the sentencing hearing, Appellant asked Judge Morris to exercise his discretion and reduce the twenty-year sentence recommended by the
jury. The prosecutor objected to the imposition of a lesser sentence. Judge Morris imposed the recommended sentence, but upon doing so he suggested that Appellant could file a post-sentencing motion seeking reconsideration of the sentence, so that Judge Willett, who was more familiar with the case, could consider the request for a lesser sentence. Appellant followed that suggestion. Judge Willett, however, denied ...