RENDERED: DECEMBER 22, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1267-MR

JONATHAN HOWELL APPELLANT 

v. 

APPEAL FROM FLOYD CIRCUIT COURT

HONORABLE JOHN DAVID PRESTON, SPECIAL JUDGE

ACTION NO. 20-CR-00057

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

REVERSING AND

REMANDING

**   **  **

BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.

LAMBERT, JUDGE: Jonathan Howell appeals his conviction as a second-degree 

persistent felony offender (“PFO”). Specifically, Howell argues the trial court 

erred in denying his motion for directed verdict in the penalty phase of the trial. 

We agree and reverse and remand for proceedings consistent with this Opinion.

Howell was found guilty of second-degree assault following a jury 

trial. He moved for a directed verdict on the assault charge at the close of all 
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evidence, but also preemptively moved for a directed verdict on the PFO charge. 

Howell argued the Commonwealth intended to rely on a November 2010 

conviction in federal court as evidence to support the PFO conviction. The federal 

conviction sentenced Howell to thirty-six (36) months’ incarceration followed by 

ten (10) years’ supervised release. Defense counsel pointed out Howell had been 

revoked at some point while on supervised release and served out the remainder of 

his sentence in prison for an unknown amount of time, leaving open the question of 

whether he could be convicted of a PFO under KRS1 532.080(2)(c)3. The 

Commonwealth responded, in relevant part, thusly:

[Howell] himself is aware of his federal conviction, that’s 

a publicly available record. It’s not some surprise thing 

nobody knew about . . . I think everyone agrees we got 

the original judgment that would put him within the fiveyear window [for a PFO conviction]. It’s just there’s a 

revocation issue and we’re trying to get the records on 

that to make absolutely certain that the original 

judgment is correct on the time frame. 

(Emphasis added.)

The trial court denied Howell’s motion for directed verdict on the 

assault charges but declined to rule preemptively regarding the PFO. Howell again 

moved for a directed verdict regarding the PFO during the penalty phase of the 

trial. The Commonwealth argued the federal judgment alone put him within the 

1 Kentucky Revised Statute.
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five-year window required by KRS 532.080(2)(c)3. Howell argued the 

Commonwealth knew Howell’s supervised release was revoked at some point. 

The trial court denied Howell’s motion and instructed the Commonwealth to 

present whatever evidence it had related to the federal conviction. 

The Commonwealth did not call any witnesses in the penalty phase of 

the trial. Instead, it offered a packet of exhibits, including a certified copy of the 

2010 judgment in Howell’s federal conviction. The jury sentenced Howell to ten 

years’ incarceration for the underlying assault charges, but also found him guilty of 

being a second-degree PFO, and enhanced the sentence of the underlying felony to 

fifteen years’ incarceration. This appeal followed.

“On appellate review, the test of a directed verdict is, if under the 

evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only 

then the defendant is entitled to a directed verdict of acquittal.” Commonwealth v.

Benham, 816 S.W.2d 186, 187 (Ky. 1991).

 To convict Howell of the offense of second-degree PFO, the 

Commonwealth had to prove beyond a reasonable doubt all of the following: (a) 

that he was more than twenty-one years of age; (b) that he stood convicted of a 

new felony offense; (c) that he was previously convicted of one other felony 

offense for which he was sentenced to a term of imprisonment of at least one year; 

and (d) that he was over eighteen years of age when he committed the prior felony 
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offense. KRS 532.080(2). Howell does not challenge the sufficiency of the 

Commonwealth’s proof on any of those elements.

 However, pursuant to KRS 532.080(2)(c), the Commonwealth was 

further required to prove beyond a reasonable doubt at least one of the following 

facts:

That [Howell]:

1. Completed service of the sentence imposed on the 

previous felony conviction within five (5) years prior 

to the date of commission of the felony for which he 

now stands convicted; or

2. Was on probation, parole, postincarceration 

supervision, conditional discharge, conditional 

release, furlough, appeal bond, or any other form of 

legal release from any of the previous felony 

convictions at the time of commission of the felony 

for which he now stands convicted; or

3. Was discharged from probation, parole, 

postincarceration supervision, conditional discharge, 

conditional release, or any other form of legal release 

on any of the previous felony convictions within five 

(5) years prior to the date of commission of the felony 

for which he now stands convicted; or

4. Was in custody from the previous felony conviction at 

the time of commission of the felony for which he 

now stands convicted; or

5. Had escaped from custody while serving any of the 

previous felony convictions at the time of commission 

of the felony for which he now stands convicted.
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The jury was instructed under KRS 532.080(2)(c)3. The 

Commonwealth argues the original judgment shows that, because Howell would 

have been on supervised release for ten years from at least November 2010, this 

was well within the five-year window imposed under the statute. The problem 

with this argument is the Commonwealth acknowledged it was waiting on records 

to be “absolutely certain” about Howell’s revocation status. As a result, the federal 

judgment presented to the jury may have been incomplete or inaccurate. Further, it 

was undisputed that, when Howell committed the instant felony in March 2020, he 

was no longer on supervised release from his federal conviction. Therefore, it 

stands to reason that Howell was likely revoked and served out his sentence prior 

to this date.

2

 

We agree with Howell that the reasoning in Moore v. Commonwealth, 

462 S.W.3d 378 (Ky. 2015), is directly on point. In Moore, the defendant was 

convicted of being a PFO. Similarly, the Commonwealth did not call any 

witnesses during the penalty phase of the trial and submitted only a packet of 

paperwork to the jury that contained certified copies of the defendant’s prior 

convictions. The Kentucky Supreme Court concluded there was insufficient 

2

It is unknown from the record before us how much credit, if any, Howell received for time 

served toward his thirty-six month prison sentence at the time the federal judgement was entered 

in 2010. However, when considering the judgment alone and without the possibility of 

revocation, even if Howell had served the entire thirty-six months’ incarceration at the time of 

judgment, he would have still been on supervised release until at least November 2020, and the 

underlying assault was committed in March 2020.
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evidence that the defendant had completed a prior sentence within five years, citing 

to the “labyrinthine web of statutes and Corrections Cabinet regulations pertaining 

to good-time credits, parole eligibility time, shock probation, revocation and 

reinstatement of probation, and the obvious fact that a prison sentence is more 

likely to be appealed (thus deferring its finality)[.]” Id. at 386. The Court further 

ruled that

[t]he Commonwealth was required to prove the positive

of Appellant’s status on [the date he committed the 

felony in the underlying action]. Either he was in the 

system, e.g., incarcerated, probated, or paroled, or he was 

not. It is as simple as that. The defendant should not 

carry the burden on this information because, just as it is 

not a negative, it is also not information that would 

necessarily be unique to the defendant. Indeed, for the 

defendant to obtain proof of such relief, he would tie [sic]

required to go through the Commonwealth and its 

associated agencies, and would most likely do so by 

calling as witnesses – the clerks and corrections officers

– that the Commonwealth did not bother to produce. 

Forcing the defendant to do so improperly shifts the 

burden of proof, requiring the defendant to prove that he 

is not PFO-eligible.

Id. at 387.

Additionally, “to uphold a conviction, an appellate court must be 

convinced that the evidence supports a reasonable inference and is not just mere 

guess work. A trial court must be similarly convinced when faced with a motion 

for a directed verdict.” Whittle v. Commonwealth, 352 S.W.3d 898, 907 (Ky. 

2011) (internal quotation marks omitted). Here, the Commonwealth’s evidence 
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regarding the PFO was based on guesswork because it acknowledged it did not 

have complete records pertaining to Howell’s federal conviction and revocation. 

Therefore, the jury’s verdict pertaining to the PFO was also based on guesswork. 

Of course, the jury did not know they were presented with potentially incomplete 

evidence. 

 The Commonwealth now argues it is not required to prove a negative 

as explained in Shabazz v. Commonwealth, 153 S.W.3d 806, 814-15 (Ky. 2005). 

We disagree. In Shabazz, the defendant was convicted of first-degree PFO under 

KRS 532.080. The Commonwealth called no witnesses in the penalty phase of the 

trial, but it presented an order of probation/conditional discharge to the jury that 

was within the five-year statutory window. The Kentucky Supreme Court held 

that, based on the evidence presented, the jury could have reasonably inferred the 

defendant was still on probation when he committed the underlying offenses. 

Howell’s case is distinguishable. Despite the Commonwealth’s argument to this 

Court, the issue is not whether the jury could have reasonably inferred that Howell

was still on supervised release when he committed the underlying offense in March 

2020, based on the federal judgment admitted into evidence. Rather, the 

Commonwealth acknowledged it was waiting on additional federal records that it 

did not have, and these records could have shown that, due to revocation, KRS 

532.080(2)(c)3. was inapplicable or put Howell outside the five-year window for a 
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PFO conviction under any provision of KRS 532.080(2)(c). Again, proof that 

Howell met the qualifications for a PFO conviction beyond a reasonable doubt 

rested entirely with the Commonwealth. 

PFO status is typically very easy to prove and is 

very difficult to seriously challenge. The 

Commonwealth’s burden in a PFO proceeding is both 

positive and clear: show, beyond a reasonable doubt, the 

criminal or corrections status of an individual on a certain 

date in question. We cannot continue to paint that burden 

as a negative one, much less one impossible to fulfill.

Moore, 462 S.W.3d at 388.

 The Commonwealth was aware it did not have complete records 

concerning Howell’s federal conviction and that those records would have clarified 

whether Howell had been discharged from supervised release within five years of 

the date he committed the underlying offense in March 2020. The trial court erred 

in denying Howell’s motion for a directed verdict related to the PFO charge. We 

therefore reverse Howell’s PFO conviction and remand to the trial court for 

sentencing of the underlying felony conviction consistent with this Opinion. 

 

ALL CONCUR.
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BRIEFS FOR APPELLANT:

Robert C. Yang

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Stephanie L. McKeehan

Assistant Attorney General

Frankfort, Kentucky