Kenneth Lamont Boone Jr v. Commonwealth of Kentucky ( 2022 )

RENDERED: NOVEMBER 18, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0966-MR
KENNETH LAMONT BOONE, JR. APPELLANT
ON REMAND FROM SUPREME COURT
v. (FILE NO. 2021-SC-0494-DG)
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 16-CR-00383
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: After accepting discretionary review from the
Commonwealth, the Kentucky Supreme Court reversed the portion of our opinion
which reversed the Fayette Circuit Court’s conviction of Kenneth Lamont Boone
for theft of identity and for being a persistent felony offender in the first degree
(PFO I) and remanded the case to us. As our prior opinion had reversed Boone’s
conviction for failure to instruct on a lesser included offense, we did not reach
Boone’s final argument regarding his sentencing, as it was moot. Now that the
Kentucky Supreme Court has upheld his convictions, on remand we now consider
whether Boone is entitled to palpable error relief for his PFO I sentence based on
the Commonwealth having provided misleading information to the jury regarding
his parole eligibility.
After a trial in November 2018, the jury found Boone guilty of theft of
identity and being a PFO I. The jury recommended a one-year sentence, enhanced
to ten years due to the PFO I conviction. This was the statutory minimum for his
PFO I conviction. In May 2019, following his conditional guilty plea on a severed
charge of possession of a controlled substance, the trial court sentenced Boone to a
total of ten years’ imprisonment. We affirmed the denial of Boone’s motion to
suppress on the possession charge, and this decision stands as Boone did not file
his own motion for discretionary relief on that issue. Therefore, the only issue
before us is the resolution of Boone’s remaining argument as to his PFO I
sentence.
Boone argues that he is entitled to relief due to the Commonwealth
having provided misleading information regarding his parole eligibility.
Specifically, during the penalty phase the Commonwealth introduced a document
from the Department of Corrections setting forth parole eligibility, then orally
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explained that Boone would be eligible for parole after serving fifteen percent of
his sentence since he had been convicted of a Class D felony.
KRS 439.340(3)(a) provides that:
A nonviolent offender convicted of a Class D felony with
an aggregate sentence of one (1) to five (5) years who is
confined to a state penal institution or county jail shall
have his or her case reviewed by the Parole Board after
serving fifteen percent (15%) or two (2) months of the
original sentence, whichever is longer.
Therefore, the information provided by the Commonwealth was accurate as to the
theft of identity conviction but was nonetheless potentially misleading because, by
virtue of being a PFO I, Boone received a ten-year sentence, thereby taking him
outside the scope of KRS 439.340(3)(a).
It is undisputed that Boone is ineligible for parole until he serves
twenty percent of his sentence. See 501 Kentucky Administrative Regulations
(KAR) 1:030 Section 3(1)(c). However, Boone’s counsel failed to object so Boone
is entitled to relief only if we conclude the parole information is a palpable error
under Kentucky Rules of Criminal Procedure (RCr) 10.26. An error is palpable
only if it “results in manifest injustice” and “there is a substantial possibility that,
but for the error, the verdict would have been different[.]” King v. Commonwealth,
472 S.W.3d 523, 532 (Ky. 2015).
Boone relies upon unpublished opinions which deemed similar
potentially misleading parole-eligibility information to be a palpable error. See,
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e.g., McGregor v. Commonwealth, No. 2012-SC-000245-MR, 2013 WL 4680444,
at *7 (Ky. Aug. 29, 2013) (unpublished). However, in addition to McGregor and
the other cases cited by Boone being unpublished, the facts here are materially
distinguishable because Boone, unlike McGregor and other defendants, received
the minimum sentence for his PFO I status. See KRS 532.080(6)(b). Thus, any
misleading information regarding parole eligibility could not have resulted in
manifest injustice because it could not have caused Boone to suffer any prejudice
as the jury could not sentence him to a lower term of years than the statutorily
mandated PFO I minimum.
We strongly caution the Commonwealth that it is improper to provide
the jury with information as to parole eligibility and then mislead the jury by not
clarifying how this eligibility will change based upon conviction for PFO I. While
we note that in another case such an error could be prejudicial, we discern no
palpable error to Boone under these facts.
Accordingly, we affirm Boone’s convictions and sentences by the
Fayette Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Aaron Reed Baker Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Aspen Roberts
Assistant Attorney General
Frankfort, Kentucky
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