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Crowe v. Commonwealth

Court of Appeals of Kentucky

March 29, 2019

MICHAEL WAYNE CROWE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE JAMES D. ISHMAEL, JR., JUDGE ACTION NO. 14-CR-00768

          BRIEFS FOR APPELLANT: Kathleen K. Schmidt Assistant Public Advocate Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Leilani K.M. Martin Assistant Attorney General Frankfort, Kentucky

          BEFORE: KRAMER, LAMBERT, AND NICKELL, JUDGES.

          OPINION

          LAMBERT, JUDGE.

         Michael Wayne Crowe appeals from an order of the Fayette Circuit Court denying (upon remand from this Court[1]) Crowe's motion to be classified as a domestic violence victim pursuant to Kentucky Revised Statutes (KRS) 439.3401(5). We reverse.

         Crowe had entered a conditional guilty plea to the amended charge of manslaughter in the first degree (KRS 507.030) for the death of his wife. He was sentenced to fifteen years' imprisonment. Crowe then sought determination that he was entitled to be exempted from the violent offender statute's requirement that he serve 85% of his sentence before becoming parole eligible. The Fayette Circuit Court held a hearing on January 20, 2016, and entered its order sentencing Crowe the following week. Although the circuit court made oral findings about Crowe's motion on the record at the hearing, it failed to reflect its reasoning in its written decision. Thus, this Court remanded the matter, on initial appeal, "with instructions to make specific findings as to the validity of Crowe's domestic violence claim, particularly after analyzing the exemption provided in KRS 439.3401(5), and include them in the final written judgment." Crowe, 2017 WL 3129204 at *1.

         Upon remand, the Fayette Circuit Court relied upon the extensive testimony taken during the 2016 hearing as its basis for once again denying Crowe's motion to qualify for the exemption to the violent offender statute. The circuit court accepted Crowe's assertion that he was the victim of domestic violence during his relationship with his late wife. However, the court found that Crowe failed to prove the required nexus "between the domestic violence and the violent offense for which the defendant stands convicted." Commonwealth v. Vincent, 70 S.W.3d 422, 425 (Ky. 2002). See also Gaines v. Commonwealth, 439 S.W.3d 160, 164 (Ky. 2014). The circuit court instead concluded that the victim's taunting about her extramarital affair provoked Crowe to smother her to death. Crowe fled the scene and was found in a wooded area by family members near his abandoned car. His dead wife was later discovered by a motel employee.

         Both parties agree, as did the circuit court, that Crowe was a victim of domestic violence (physical and verbal abuse) during his marriage to the victim. All witnesses testified to it, including the Commonwealth's detective that investigated the case. Crowe bore visible signs (scratches, bruises, and bite marks) of the violent encounters with his late wife, including on the night of her death. But the parties disagree on whether domestic violence was directly related to the crime for which Crowe stands convicted.

         Our analysis begins with the applicable statutes involved, as discussed in Fuston v. Commonwealth, 217 S.W.3d 892, 898 (Ky. App. 2007):

KRS 439.3401(3) mandates that a violent offender, as defined by the statute, "shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed." KRS 439.3401(5) exempts from this requirement, however, any person who has "been determined by a court to have been a victim of domestic violence or abuse pursuant to KRS 533.060 with regard to the offenses involving the death of the victim[.]" Further, KRS 533.060(1) permits the exemption of a defendant who
establishes that the person against whom the weapon was used had previously or was then engaged in an act or acts of domestic violence and abuse as defined in KRS 403.720 against either the person convicted or a family member as defined in KRS 403.720 of the person convicted.
Finally, KRS 403.720 contains the following definitions:
(1) "Domestic violence and abuse" means physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family ...

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