Steve Hackworth v. Commonwealth of Kentucky ( 2023 )

RENDERED: FEBRUARY 17, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1072-MR
STEVE HACKWORTH APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
v. HONORABLE GEORGE W. DAVIS, III, JUDGE
ACTION NO. 20-CR-00178
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Steve Hackworth appeals the Final Judgment and Sentence of
Imprisonment rendered by the Boyd Circuit Court on September 7, 2021,
sentencing him to nine-years’ incarceration following a jury trial. We affirm.
Hackworth was convicted by a jury of three counts of sexual abuse,
first degree. The jury recommended a sentence of three years on each count to run
consecutively for a total of nine-years’ incarceration. Hackworth’s appeal is
limited only to the jury instructions in the penalty phase of the trial.1 Specifically,
he asserts the jury was improperly instructed as to concurrent and consecutive
sentencing. For the reasons stated, we disagree with this argument.
We begin by noting that Hackworth’s argument on appeal is
unpreserved. The Commonwealth and Hackworth tendered proposed jury
instructions, and at no time during the trial did Hackworth object to the instructions
ultimately submitted to the jury. Kentucky Rules of Criminal Procedure (RCr)
9.54(2); Martin v. Commonwealth, 409 S.W.3d 340, 346 (Ky. 2013). Our review
is therefore limited to palpable error pursuant to RCr 10.26. “Appellate courts
review[ ] unpreserved claims of error on direct appeal only for palpable error. To
prevail, one must show that the error resulted in manifest injustice.” Ford v.
Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021) (internal quotation marks
omitted). RCr 10.26 states that, “[a] palpable error which affects the substantial
rights of a party may be considered by the court on motion for a new trial or by an
appellate court on appeal, even though insufficiently raised or preserved for
review, and appropriate relief may be granted upon a determination that manifest
injustice has resulted from the error.”
1
Steve Hackworth was convicted on three counts of sexual abuse in the first degree and
conspiring to tamper with physical evidence. He was acquitted of being a persistent felon in the
second degree. The underlying facts of those crimes are not relevant to the disposition of this
appeal.
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When a defendant is convicted of more than two offenses, the jury
should be advised that some of the offenses may be run concurrently, and some
may be run consecutively. Stoker v. Commonwealth, 828 S.W.2d 619, 627 (Ky.
1992). Hackworth argues the jury was not made aware that it could run some of
the sentences consecutively and some concurrently. However, the language that
Hackworth complains was not presented to the jury was, in fact, presented in the
jury instructions. In the instant action, Penalty Phase Instruction No. 4 stated:
You will further recommend in your verdict whether any
or all of the punishments you fix for the Defendant under
Counts 1, 2, and 3 should be served concurrently (at the
same time) or consecutively (one to begin after the
completion of the other).
Penalty Phase Form Verdict No. 4 stated:
CHECK AND COMPLETE ONLY ONE OF THE
FOLLOWING:
_______ We recommend that the punishments fixed
under Counts 1, 2, and 3 be served concurrently (at the
same time).
_______ We recommend that the punishments fixed
under Counts 1, 2, and 3 be served consecutively (one
after another) for a total of _____ years.
(Emphasis added.)
The jury selected the second option, indicating each of the three-year
sentences was to run consecutively with the others for a total of nine-years’
incarceration.
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We agree with the Commonwealth that Stoker is distinguishable from
the case at bar. In Stoker, the jury recommended the sentences of the co-
defendants run consecutively and the trial court followed the jury’s
recommendation. The jury was not instructed that some sentences could run
concurrently and some consecutively. First, the error in Stoker was preserved.
Second, Stoker involved two defendants accused of horrific abuse and a murder
lingering in the background during the trial. In ruling the defendants’ sentences
should run concurrently, the Kentucky Supreme Court acknowledged that the facts
and circumstances in Stoker were unique. To wit:
[I]f the sentences are run concurrently the result will still
be severe, 50 years for Ronald Stoker (which he received
on each rape charge) and 30 years for Sheila Davis
(which she received on each sodomy charge), with
minimum parole eligibility under the violent offender
statute, KRS [Kentucky Revised Statutes] 439.3401, of
50% of the sentence imposed, 25 years and 15 years,
respectively.
We recognize that technically it was the trial court,
not the jury, that imposed consecutive sentences on all
counts. But we also recognize that this was done in
conformity with the jury’s verdict and the practical
difficulty in doing otherwise in the face of the jury’s
recommendation, given the highly inflammatory
circumstances generated by a combination of factors
including the inflammatory nature of the offenses and the
murder conviction in the background. This was no
ordinary case. These same circumstances also make it
patently unreasonable to burden the trial court with the
responsibility to decide once again which sentences
should run consecutively and which concurrently, and to
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do so fairly with the full weight of the knowledge of the
jury’s recommendation sitting on his shoulders.
The only other course available in present
circumstances would be to set aside the sentencing phase
of the trial entirely and to remand for a complete new
trial of the sentencing phase. This is both an inadequate
solution and a waste of judicial resources, and we decline
this course of action.
In the situation presented, the only appropriate way
to correct the sentencing error generating from the
erroneous instructions for guidance is to look to the
language of KRS 532.110(2), which provides:
“If the court does not specify the manner in
which a sentence imposed by it is to run, the
sentence shall run concurrently with any
other sentence which the defendant must
serve.”
Stoker, 828 S.W.2d at 627-28.
Jury instructions must be read as a whole. Bills v. Commonwealth,
851 S.W.2d 466, 471 (Ky. 1993) (internal citations omitted). Further, juries are
presumed to follow the instructions given by the trial court. Matheney v.
Commonwealth, 191 S.W.3d 599, 606 (Ky. 2006) (internal citations omitted).
Although Kentucky Revised Statutes 532.055(2) requires the jury recommend
whether the sentences run concurrently or consecutively, the jury’s sentencing
recommendation is just that – a recommendation – and not binding on the trial
court. See, e.g., Murphy v. Commonwealth, 50 S.W.3d 173, 178 (Ky. 2001);
Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999); Nichols v.
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Commonwealth, 839 S.W.2d 263, 265 (Ky. 1992). When read as a whole, we
discern no manifest injustice in the instructions submitted to the jury. Nor do we
discern manifest injustice in the trial court’s decision to follow the jury’s
sentencing recommendation.
Accordingly, the judgment of the Boyd Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Karen Shuff Maurer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Melissa A. Pile
Assistant Attorney General
Frankfort, Kentucky
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