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Bailey v. Commonwealth3/21/2002
TO BE PUBLISHED
REVERSlNG
Appellant, Mark Anthony Bailey, was indicted on March 8, 1999 for Operating a Motor Vehicle Under the Influence of Alcohol, Third Offense, with Breath Alcohol Level of .I8 or above; Operating a Motor Vehicle on A Suspended License for Driving Under the Influence , Second Offense; and Disregarding a Traffic Control Device. He subsequently entered a guilty plea in exchange for a recommended sentence of one year in prison on Count One, thirty (30) days on Count Two, and a dismissal of Count Three. The trial court instead sentenced Appellant to twelve (12) months in jail, pursuant to KRS 532.070(2). Appellant objected to that sentence at the time that it was handed down, which objection the court duly noted. Appellant then appealed to the Court of Appeals, which affirmed the sentence imposed by the trial judge. Appellant now appeals to this Court.
Appellant, Tony Lamar Wright, was indicted on February 22, 1999 for Possession of Cocaine and Criminal Trespass, Third Degree. He pled guilty in exchange for a recommended sentence of one (1) year in prison for Possession, and dismissal of the Trespass charge. The trial court instead sentenced Appellant to twelve (12) months in jail, pursuant to KRS 532.070(2). Appellant objected to that sentence at the time that it was handed down, which objection the court duly noted. Appellant then appealed to the Court of Appeals, which affirmed the sentence imposed by the trial judge. Appellant now appeals to this Court.
We reverse as to both Appellants.
KRS 532.07O(2)
KRS 532.070(2) states as follows:
When a sentence of imprisonment for a Class D felony is fixed by a jury pursuant to KRS 532.060 and the trial court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose such a sentence, the court may sentence the defendant to a definite term of imprisonment in a county or a regional correctional institution for a term of one (1) year or less. (emphasis added).
Appellants both contend that it was improper for the trial court to apply KRS 532.070(2) to their sentencing, as neither was convicted by a jury. Further, they allege, the trial judge did not sentence them to twelve (12) months in jail because she believed the recommended prison sentence to be too harsh, but rather because she wanted to impose a sentence which was, in reality, more harsh. Both assert that a prison sentence would have been preferable because there is a possibility for early parole from prison which does not exist to the same degree with a jail sentence, the facilities at a prison are superior to those of a jail, and rehabilitation and other programs are available to inmates in prison that are not available to those in jail. Appellants claim that the trial judge's use of KRS 532.070(2) to sentence them to twelve (12) months in jail was contrary to the ameliorative intent of the statute.
The plain language of KRS 532.070(2) states that the statute can be used to modify a sentence "fixed by a jury" pursuant to KRS 532.060. "The literal language of the statute is both plain and unambiguous and must be given effect as written." Commonwealth v. Harrelson, KY., 14 S.W.3d 541, 547 (2000). See also Lvnch v. Commonwealth, Ky., 902 S.W.2d 813 (1995). Therefore, KRS 532.070(2) can be applied by a trial judge where a sentence of imprisonment for a Class D felony is fixed by a jury, and only where it is fixed by a jury.
The Court of Appeals in Commonwealth v. Douahty, Ky. App., 869 S.W.2d 53 (1994) has previou
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