Jonathan Howell v. Commonwealth of Kentucky ( 2022 )

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NOT TO BE PUBLISHED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
APPEAL FROM FLOYD CIRCUIT COURT
v. HONORABLE JOHN DAVID PRESTON, SPECIAL JUDGE
ACTION NO. 20-CR-00057
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND
REMANDING
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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
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 Defense counsel pointed out Howell had been
revoked at some point while on supervised release and served out the remainder of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 five-
year 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: BRIEF FOR APPELLEE:
Robert C. Yang Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Stephanie L. McKeehan
Assistant Attorney General
Frankfort, Kentucky
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