Chavez Cortez Byrd v. Commonwealth of Kentucky ( 2015 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISIO,N 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.
RENDERED: AUGUST 20, 2015
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2014-SC-000313-MR
CHAVEZ CORTEZ BYRD
DATE R-A(1 VS CLNNA4%%,earg'0Wr sA1).C..
APPELLANT
ON APPEAL FROM DAVIESS CIRCUIT COURT
V. HONORABLE JOSEPH W. CASTLEN, III, JUDGE
NO. 13-CR-00056
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
At approximately 1:30 A.M. on December 21, 2012, Appellant, Chavez
Byrd and his co-defendants, Keelan Walton ("Walton") and Chris Byrd ("Chris"),
burst into the residence shared by Chloe Palomo, Pablo Vargas, Javier Perea,
and Ismael Moreno. Armed with a shotgun and a knife, Appellant, Walton, and
Chris beat and robbed the three men who lived there. Appellant and his
confederates then forced Ms. Palomo to perform oral sex on them. The three
defendants were eventually arrested and indicted by a Daviess County Grand
Jury and charged with first-degree burglary, first-degree robbery, and first-
degree sodomy. Their cases were consolidated for trial.
A Daviess County Circuit Court Jury convicted Appellant, Walton, and
Chris on all charges, and sentenced each defendant to twelve years'
imprisonment on each count. The jury further recommended that the
sentences be served concurrently resulting in a total sentence of 12 years'
imprisonment for each defendant.
At a subsequent sentencing hearing, the trial court ordered that
Appellant and Walton's burglary and robbery sentences be served concurrently
with each other. The court then ruled that those convictions be served
consecutively with the sodomy conviction. However, the court accepted the
jury's recommendation that all of Chris' sentences be served concurrently.
Appellant now appeals his conviction and sentence as a matter of right
pursuant to § 110(2)(b) of the Kentucky Constitution.
Sentencing
Appellant claims that the trial court erred by admitting the testimony of
jail personnel at Appellant's sentencing hearing. He specifically argues that the
jail personnel testimony exceeded the type of evidence that the Commonwealth
may present to the jury under KRS 532.055(2)(a). Appellant further contends
that the court abused its discretion by ordering his robbery and burglary
sentences to be served consecutively with his sodomy sentence. We disagree.
KRS 532.055(2)(a) limits the type Of sentencing evidence that may be
presented to the jury, not the trial court. Instead, courts retain broad
discretion in deciding whether a defendant's sentences shall be served
consecutively or concurrently. KRS 532.110(1); see also Nichols v.
Commonwealth, 839 S.W.2d 263, 266 (Ky. 1992); Dotson v. Commonwealth,
740 S.W.2d 930 (Ky. 1987). In rendering its decision, the court must consider
the information contained in the presentence investigation (PSI) report. KRS
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532.050. In addition, KRS 532.007 requires that trial courts consider the
likely effect of a sentence on the defendant's future criminal behavior. In
applicable cases such as here, the court should also consider the presentence
sex offender evaluation provided under KRS 17.554.
The record indicates that the trial court reviewed Appellant's PSI and sex
offender evaluation prior to entering its final judgment.
Furthermore, Major Bill Billings testified at the sentencing hearing
regarding Appellant's behavior while incarcerated. He stated that Appellant
received 69 incident reports, most of which resulted from threats to jail staff
and violence toward other inmates. Deputy Ashley Yeckering also testified
that, while patrolling the high-risk cells in which Appellant was being held,
Appellant made a lewd comment toward her. She prepared an incident report
based on that comment. The trial court determined that Major Billings and
Deputy Yeckering's testimony was consistent with Appellant's sex offender
evaluation, demonstrated lack of remorse, and suggested that he was not
amenable to rehabilitation.
The court properly observed the required sentencing procedures here.
None of the pertinent statutory provisions previously discussed bind trial
courts to consider only the information presented in the PSI or the presentence
sex offender evaluation. See Murphy v. Commonwealth, 50 S.W.3d 173, 178
(Ky. 2001) (where trial court, acting contrary to the jury's recommendation,
sentenced a juvenile to consecutive sentences based on factors not required to
be included in the PSI). For sentencing purposes, trial courts are not confined
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to the four corners of any pretrial report. Courts may also consider
information that could have been included in such reports, as well as other
instructive evidence such as the jail personnel testimony at issue here.
Moreover, KRS 17.554 specifically provides that the sex offender
evaluation shall consider "[r]ecent behavior that indicates an increased risk of
recommitting a sex crime[]" and "[r]ecent threats or gestures against persons or
expressions of an intent to commit additional offenses . . . ." Having reviewed
the record, the lewd comment proffered by Appellant towards Deputy Yeckering
certainly constitutes behavior that should be considered under KRS 17.554.
The record also indicates that the court based its sentencing decision on
Appellant's criminal history and risk of recidivism, as well as the significant
threat Appellant posed to public safety. In contrast, the court found numerous
mitigating factors with respect to Chris such as his lack of negative incident
reports while incarcerated, his military service, possible Post Traumatic Stress
Disorder diagnosis, and his demonstration of remorse and amenability to
rehabilitation. The court accordingly ordered all of Chris' sentences to be
served concurrently.
Such a facial disparity in sentencing does not equate to an abuse of the
court's discretion. The court abuses its discretion only where the record
entirely fails to support the court's sentencing determination as to a specific
defendant. "The test for abuse of discretion is whether the trial judge's
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles." Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.
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2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
Considering the evidence presented at the sentencing hearing, the trial court
did not abuse its discretion in ordering Appellant's burglary and robbery
sentences to be served concurrently with each other, and consecutive with the
sodomy conviction.
Conclusion
For the foregoing reasons, we hereby affirm the judgment of the Daviess
Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Steven Jared Buck
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Nathan Todd Kolb
Assistant Attorney General of Kentucky
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