IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."

PURSUANT TO THE RULES OF CIVIL PROCEDURE

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER

CASE IN ANY COURT OF THIS STATE; HOWEVER,

UNPUBLISHED KENTUCKY APPELLATE DECISIONS,

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE

BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION

BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED

DECISION IN THE FILED DOCUMENT AND A COPY OF THE

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE

DOCUMENT TO THE COURT AND ALL PARTIES TO THE

ACTION.
CLIFTON EUGENE HOLMAN

,$uPreme (~ourf of ~firn

2007-SC-000225-MR

ON APPEAL FROM BOURBON CIRCUIT COURT

V. HONORABLE ROBERT G . JOHNSON, JUDGE

NO. 06-CR-00024

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

RENDERED : FEBRUARY 19, 2009

NOT TO BE PUBLISHED

IT 41409__ gyp: c

APPELLANT'

On Christmas morning in 2005, Lieutenant Tony Asbury of the Paris

Police Department received a dispatch for a domestic violence complaint.

Asbury proceeded to the residence, arriving approximately two minutes later.

Upon approaching the residence, Asbury heard yelling and screaming from

inside. He knocked on the door and kicked it open after no one answered . As

Asbury entered the residence, he saw Appellant, Clifton Holman, leaning over a

couch hitting a woman. The woman lying on the couch was Devon Owens,

Appellant's former girlfriend . Asbury pulled Appellant away and attempted to

alert the dispatcher on his radio . Appellant knocked the radio away, got on top

of Asbury, and began hitting him. Fearing for his life, Asbury was able to reach

for his gun and shoot Appellant in the abdomen.

Based on these events, Appellant was arrested and indicted for Burglary

in the First Degree, Assault in the Third Degree (against Lieutenant Asbury),
Assault in the Fourth Degree (against Devon Owens), Resisting Arrest, and for

being a Persistent Felony Offender in the First Degree . During the sentencing

phase, two prior felonies were introduced and Appellant was sentenced to ten

years for the burglary, five years for the third-degree assault, and twelve

months and a $500 .00 fine for the fourth-degree assault . After the sentencing

phase, a separate hearing was held to determine whether Appellant was a

persistent felony offender in the first degree. The two hearings were held

consecutively. He was found to be a persistent felony offender and his

sentences were elevated as follows : the burglary sentence was enhanced to

fifteen years and the third-degree assault sentence was enhanced to ten years .

The sentences were ordered to run consecutively for a total of twenty-five years

imprisonment.

Appellant argues that it was a violation of KRS Chapter 532 for the jury

to consider his prior felony convictions at two separate hearings . The felonies

were considered at the first hearing (the truth in sentencing or "TIS" hearing)

for the jury to fix Appellant's sentences . The felonies were also considered at

the second hearing (the "PFO" hearing) to determine whether Appellant should

receive enhanced sentences under the persistent felony offender statute.

Appellant also argues that misdemeanor charges were introduced during the

penalty phase which did not occur until after the commission of the crimes

herein. Moreover, Appellant argues that the misdemeanor charges were the

only convictions introduced during the penalty phase of the trial. These issues

were not preserved for review. However, as we have previously stated :

"[S]entencing issues may be raised for the first time on appeal . . . ."

2
Cummins v. Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007) . Indeed,

sentencing is jurisdictional and it cannot be waived by a defendant's failure to

object at trial. Wellman v. Commonwealth, 694 S.W .2d 696, 698 (Ky. 1985) .

First, we address Appellant's argument that it was a violation of

statutory law for the trial court to hold separate TIS and PFO hearings . KRS

532.055(3) mandates that all TIS hearings be combined with any hearings

provided for under KRS 532.080 (the persistent felony offender statute) .

Further KRS 532.080 mandates that the hearing be conducted in a separate

proceeding from the proceeding which resulted in the conviction . KRS 532.055

was enacted so that jurors would not be required to sentence "in a vacuum,"

without knowing the nature and extent of a defendant's criminal history.

Manns v. Commonwealth, 80 S.W.3d 439, 444 (Ky. 2002). Indeed, the statute

"established a bifurcated proceeding" so that juries would not be privy to

inadmissible information concerning a defendant's criminal record until after

the guilt-innocence phase of the trial . Id.

Here, instead of holding a bifurcated trial, the judge essentially held a

"trifurcated" trial . After the guilt or innocence phase, the trial judge held a TIS

hearing which was immediately followed by a PFO hearing. Although they were

not conducted simultaneously, the PFO hearing was held within minutes of the

conclusion of the TIS hearing. In Commonwealth v. Reneer, 734 S.W.2d 794

(Ky. 1987), we approved of the combined PFO/TIS format "because the same

evidence that is pertinent toward fixing the penalty is also pertinent for

consideration in the enhancement of the sentence[ .]" Id. at 798. However, in

Reneer, we merely held that it was not unconstitutional to hold the hearings

3
together. Indeed, the dissenting justices expressed concern about possible

prejudice to defendants arising from a combined format. Here, Appellant

argues that he was prejudiced by separate TIS and PFO phases. We fail to see

how Appellant was prejudiced by this procedure. Indeed, as our courts have

previously suggested by stating that combined hearings create "difficulties" and

"confusion," it would seem that a criminal defendant would be more likely to

suffer prejudice if the phases were combined. See Lemon v. Commonwealth,

760 S.W.2d 94-95 (Ky. App. 1988) . As such, although it was error to hold the

hearings separately, the error was harmless . RCr 9.24

Appellant also argues that he was placed in double jeopardy because the

TIS and PFO hearings were separated. We disagree . In fact, the hearings were

traditionally held separately before KRS 532.055 was enacted in 1986 . The

hearings are now combined, but only due to the statutory provisions of KRS

532.055. 1 More importantly, KRS 532.080 mandates that enhanced sentences

in the PFO phase are to be imposed in lieu of the sentence(s) imposed during

the TIS phase. KRS 532.080 reads as follows :

When a defendant is found to be a persistent felony offender,

the jury, in lieu of the sentence of imprisonment assessed under

KRS 532.060 for the crime of which such person presently stands

convicted, shall fix a sentence of imprisonment as authorized by

subsection (5) or (6) of this section. (Emphasis added.)

1 As we have previously stated, "The Supreme Court of this Commonwealth has the

authority to prescribe rules of practice and procedure in the courts of this

Commonwealth . Because K.R.S. 532.055 is a legislative attempt to invade the rule

making prerogative of the Supreme Court by legislatively prescribing rules of practice

and procedure, it violates the separation of powers doctrine enunciated in Section 28

of the Kentucky Constitution ." (Internal citation omitted.) Commonwealth v. Reneer,

734 S. W.2d 794, 796 (Ky. 1987) . However, we continue to recognize this statute

under the principle of comity. Id . at 798.

4
In the present case, prior felonies were introduced sufficient to show that

Appellant was a persistent felony offender. Thejury fixed sentences during the

PFO phase that were imposed in lieu of the sentences fixed during the TIS

phase. Appellant seems to misunderstand the distinction between a penalty

enhancement under KRS Chapter 218A (the second or subsequent offense

statute) and regular "informed" sentencing under KRS 532.060 and KRS

532.055. While we have been careful to note that separate prior qualifying

convictions are required to support enhancements under the "second or

subsequent offense" and "persistent felony offender" statutes, initial sentencing

during the TIS phase is not an "enhancement," but is a criminal defendant's

actual sentence . KRS 218A, KRS 532.080, KRS 532.060, and KRS 532.055.

There is no double jeopardy where ajury enhances a defendant's regular

sentence under the provisions of KRS 532.080. See White v. Commonwealth,

770 S.W.2d 222, 224 (Ky . 1989) (Double jeopardy does not attach in PFO

proceedings because conviction as a PFO is not an independent criminal

offense, but is a criminal status.) ; Corbett v. Commonwealth, 717 S.W.2d 831,

834 (Ky. 1986) (The persistent felony offender statute defines a status and not

an individual criminal offense, thus there is no double jeopardy question

involved .) .

Finally, Appellant argues that misdemeanor convictions were improperly

introduced during the PFO hearing and that no qualifying felonies were

introduced. Although it is true that misdemeanor convictions (which became

final after his conviction in the present action) were introduced during this

phase, we find such error to be harmless. The jury had three independent

5
felony convictions to choose from and did not need to rely on the improperly

admitted misdemeanor convictions . Because the jury was informed they

needed to find that Appellant had been convicted of two prior felonies on

separate occasions, the inclusion of the misdemeanors with the felony charges

was harmless . Moreover, the jury instructions in the PFO phase recited the

felonies in question and made clear to the jury that they had to believe that

Appellant had committed these felonies in order for his sentences to be

enhanced under the PFO statute. Indeed, although the felonies were not

"re-introduced" during this phase, it is clear that the only reason they were not

"re-introduced" was to avoid redundancy as they had just been introduced in

the previous phase. The Commonwealth's Attorney made it clear in front of the

judge and jury that he would not discuss the felonies again because he had

just discussed them minutes before . He stated as follows : "I think [defense

counsel] and I agreed that we won't rehash the felonies at this time, but I'll be

allowed to refer to them for proof purposes ." Thus, it is clear there was an

agreement between defense counsel and the Commonwealth that it was

unnecessary to re-introduce the felonies at this time. As such, any error in

failing to re-introduce them was harmless . RCr 9.24 .

Accordingly, we affirm the decision of the Bourbon Circuit Court.

All sitting. All concur.
COUNSEL FOR APPELLANT:

Kathleen Kallaher Schmidt

Linda Roberts Horsman

Department of Public Advocacy

100 Fair Oaks Lane

Frankfort, KY 40601

COUNSEL FOR APPELLEE:

Jack Conway

Attorney General

Joshua D. Farley

Assistant Attorney General

Office of Criminal Appeals

1024 Capital Center Drive

Frankfort, KY 40601-8204