Randall Northcutt v. Commonwealth of Kentucky

RENDERED: OCTOBER 2, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0143-MR
RANDALL NORTHCUTT APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 18-CR-00131
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.
KRAMER, JUDGE: Randall Ray Northcutt was convicted in Fayette Circuit
Court of escape in the second degree1 and of being a persistent felony offender in
the first degree (“PFO I”). 2 He now appeals. Upon review, we affirm.
1
See Kentucky Revised Statute (“KRS”) 520.030.
2
See KRS 532.080(3).
On May 9, 2014, Northcutt was convicted of third-degree burglary in
Fayette Circuit Court and thereafter began serving a three-year sentence of
incarceration. On September 1, 2017, he was released from prison and allowed to
serve the remainder of his sentence3 through participation in the Home
Incarceration Program (“HIP”). As a condition of his home incarceration,
Northcutt was required to wear an ankle bracelet and was prohibited from leaving
the designated area where he was confined (i.e., his home at 1600 Clayton Avenue,
and part of its curtilage, in Lexington, Kentucky) without permission of his HIP
caseworker, Drew Chism. The ankle bracelet contained an electronic transmitter
which, if broken, was designed to send an email notification of a “master tamper
violation” to HIP.
Approximately three weeks after Northcutt began his participation in
HIP, the electronic transmitter in his ankle bracelet was broken; HIP received an
email to that effect. After verifying the master tamper violation through HIP’s
monitoring website, Chism tried, unsuccessfully, to contact Northcutt by
telephone. Thereafter, he attempted to locate Northcutt at Northcutt’s home
address and was likewise unsuccessful. But, using geolocation software, Chism
found Northcutt’s ankle monitor on a road outside the area where Northcutt had
3
The record does not disclose when Northcutt’s three-year term commenced or when it would
have otherwise ended, but Northcutt was undisputedly continuing to serve that term on
September 27, 2017, when his ankle monitor was removed and he fell out of contact with HIP.
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been allowed to be under the terms of his HIP agreement. Upon finding it, Chism
noted the ankle monitor’s strap had clearly been cut. Based upon Chism’s
investigation, a warrant was issued for Northcutt’s arrest. Northcutt was
eventually arrested on December 12, 2017, after authorities located him at 1880
Dunkirk Drive in the Cardinal Valley area of Lexington, Kentucky – an area well
outside the permitted vicinity of his home incarceration.
Ultimately, Northcutt was indicted by a grand jury in Fayette Circuit
Court for second-degree escape and PFO I. The PFO I charge was based on two
underlying felony convictions: (1) Northcutt’s 2014 third-degree burglary
conviction; and (2) Northcutt’s earlier conviction, in 2007, of second-degree
burglary. The case proceeded to a jury trial on November 27, 2018; Northcutt
elected to present no evidence at trial, and the Commonwealth’s evidence was
consistent with what is set forth above. Upon the conclusion of the guilt phase of
the trial, the jury found Northcutt guilty of second-degree escape. Prior to the
completion of the penalty phase of trial, Northcutt entered a conditional plea of
guilty to the PFO I charge. Pursuant to his conditional plea, Northcutt reserved the
right to raise the issues presented in this appeal, and the Commonwealth
recommended the minimum sentence of one year on the second-degree escape
conviction, enhanced to the minimum 10 years by the PFO I conviction. On
January 15, 2019, the trial court rendered its final judgment sentencing Northcutt
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to 10 years’ imprisonment. Northcutt now appeals. Additional facts will be
discussed as necessary.
As to the substance of his appeal, Northcutt’s assumption throughout
these proceedings has been that a prior felony conviction is an essential
precondition of second-degree escape. And, armed with that assumption,
Northcutt makes the following two arguments.
First, Northcutt reasons that because second-degree escape must be
predicated upon a prior felony conviction, it therefore qualifies as an “enhanced”
offense. Based upon that, he argues, the rule prohibiting “double enhancement”
applies.4 In other words, he contends that if his prior felony conviction for third-
degree burglary was the basis for enhancing his escape charge to second-degree
escape, his prior felony conviction for third-degree burglary could not also have
been the basis for prosecuting him for PFO I. Therefore, he claims, it was error for
the trial court to permit the Commonwealth to prosecute him for PFO I.
4
See Corman v. Commonwealth, 908 S.W.2d 122, 123 (Ky. App. 1995), explaining:
The rule is now established that when a single prior felony is
utilized to create an offense or enhance a punishment at the trial of
the second crime, that same prior felony cannot be used at that trial
to prosecute the defendant as a persistent felony offender. If,
however, the prior felony used to underlie PFO conviction is a
separate prior felony from the one used to create the offense or
enhance its punishment, the offense can be further enhanced under
the PFO statute.
(Citations omitted.)
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Second, Northcutt reasons if all the jury needed to know (for purposes
of finding him guilty of second-degree escape) was that he had been convicted of a
felony, then it was unnecessary for the Commonwealth to go into any further detail
regarding the nature of his prior felony conviction. Accordingly, Northcutt argues,
the trial court “prejudiced” his defense by denying his requests, as set forth in his
motion in limine, to: (1) require the Commonwealth to accept his stipulation, made
under the auspices of Old Chief v. United States,5 “that he was a convicted felon
subject to the rules of Probation and Parole”; and (2) “exclude at trial all other
evidence introduced to prove [he] was a convicted felon.”
However, Northcutt’s assumption underlying his appeal is founded
upon a misapprehension of the law: A prior felony conviction is not a precondition
of second-degree escape because that offense “does not distinguish between
different statuses of offenders based on past offenses.” Lawton v. Commonwealth,
354 S.W.3d 565, 572 (Ky. 2011). Indeed, that much is apparent from a cursory
reading of KRS 520.030, which sets forth the offense as follows:
(1) A person is guilty of escape in the second degree
when he escapes from a detention facility or, being
charged with or convicted of a felony, he escapes from
custody.
(2) Escape in the second degree is a Class D felony.
5
519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997).
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From the plain language of this statute, a person who escapes from a
detention facility, who was merely in the detention facility due to a misdemeanor
offense, is guilty of second-degree escape. See, e.g., Commonwealth v. Johnson,
615 S.W.2d 1 (Ky. App. 1981).
A person who escapes from custody, who was in custody merely due
to a felony charge, is guilty of second-degree escape. See, e.g., Weaver v.
Commonwealth, 156 S.W.3d 270 (Ky. 2005).
Moreover, under the Kentucky Supreme Court’s interpretation of this
statute, a person convicted of a felony is guilty of second-degree escape if, and only
if, that person escapes from custody while serving a felony sentence. See Lawton,
354 S.W.3d at 573. Thus, a convicted felon who is not serving a felony sentence
would not be guilty of second-degree escape if he or she is taken into custody due
to a misdemeanor offense and, while in custody (as opposed to a detention
facility), then escaped.
Accordingly, it is apparent that Northcutt’s first argument set forth
above, founded upon his incorrect assumption of second-degree escape, lacks
merit. There was no “double enhancement.”
His second argument also lacks merit. To review, Northcutt argues
the trial court “prejudiced” his defense by denying his requests, as set forth in his
motion in limine, to: (1) require the Commonwealth to accept his stipulation, made
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under the auspices of Old Chief, “that he was a convicted felon subject to the rules
of Probation and Parole”; and (2) “exclude at trial all other evidence introduced to
prove [he] was a convicted felon.” At the onset, however, we note that even where
our Courts have applied the rule of Old Chief, we have explained that a violation of
that rule does not automatically warrant reversal. Specifically:
In Anderson v. Commonwealth, [281 S.W.3d 761
(Ky. 2009), the Kentucky Supreme Court] adopted the
limited holding from Old Chief, that “a defendant
charged with being a felon in possession of a firearm
may stipulate to having a prior felony conviction, even
without the Commonwealth’s consent.” 281 S.W.3d 761,
762 (Ky. 2009). In Anderson, the defendant was charged
with possession of a handgun by a convicted felon and
the Commonwealth sought to introduce evidence of
Anderson’s prior felony conviction for receiving stolen
property and escape. Id. Anderson offered to stipulate to
being a convicted felon to avoid potential prejudice from
disclosing the details of his prior convictions, but the trial
court denied his request. Id. at 762-63. The
Commonwealth introduced the details to the jury, and
Anderson was ultimately convicted of the firearm
possession charge. Id. at 763.
In Old Chief, the United States Supreme Court
acknowledged “that evidence of the name or nature of the
prior offense generally carries a risk of unfair prejudice
to the defendant.” 519 U.S. at 185, 117 S. Ct. 644.
Further, the Court concluded that “there is no cognizable
difference between the evidentiary significance of an
admission and of the legitimately probative component of
the official record the prosecution would prefer to place
in evidence.” Id. at 191, 117 S.Ct. 644. In Anderson,
this Court decided to join the overwhelming majority of
courts by adopting Old Chief, and holding that:
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upon request, a criminal defendant charged
with being a felon in possession of a firearm
may stipulate (with the Commonwealth’s
agreement) or admit (if the Commonwealth
does not agree) that the defendant has been
previously convicted of a felony. Such a
stipulation or admission would mean that the
jury would simply be informed that the
defendant was a convicted felon, for
purposes of the felon in possession of a
firearm charge, but would not be informed
of the specifics of the defendant’s previous
felony conviction(s).
281 S.W.3d at 766.
. . . . However, “no error . . . or defect in any
ruling . . . is ground for granting a new trial or for setting
aside a verdict . . . unless it appears to the court that the
denial of such relief would be inconsistent with
substantial justice.” Id. (quoting Kentucky Rule of
Criminal Procedure (RCr) 9.24). “A non-constitutional
evidentiary error may be deemed harmless . . . if the
reviewing court can say with fair assurance that the
judgment was not substantially swayed by the error.”
Winstead v. Commonwealth, 283 S.W.3d 678, 688-89
(Ky. 2009).
Ward v. Commonwealth, 568 S.W.3d 824, 835-36 (Ky. 2019).
In Ward, for example, the defendant’s proffered stipulation was
disallowed by the trial court; the rule of Old Chief was deemed violated, but
nevertheless, any resulting error was deemed harmless because:
At trial, the Commonwealth introduced very little
evidence about Ward’s prior felony conviction. A single
witness who obtained certified copies of Ward’s criminal
record testified that Ward was convicted of first-degree
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robbery in Jefferson County, that he entered a guilty plea,
and provided the date of the offense. No other
information was given. . . . The jury was not given any
violent details, or even any information regarding what
constitutes first-degree robbery. We cannot say that
“there was a reasonable possibility that the jury’s
knowledge of [Ward’s] specific prior convictions might
have contributed to his conviction any more than their
general knowledge of his status as a convicted felon
would have.” Anderson, 281 S.W.3d at 767. While the
trial court’s denial of Ward’s request to stipulate his
convicted felon status was error, it was harmless.
Id. at 836.
Here, beyond noting that the trial court denied his request to stipulate
during trial “that he was a convicted felon subject to the rules of Probation and
Parole,” Northcutt does not explain how the trial court otherwise “prejudiced” his
case. Moreover, we cannot say “there was a reasonable possibility that the jury’s
knowledge of [Northcutt’s] specific prior convictions might have contributed to his
conviction any more than their general knowledge of his status as a convicted felon
would have.” Anderson, 281 S.W.3d at 767. When the Commonwealth informed
the jury of Northcutt’s prior felony conviction, it only did so during Officer
Chism’s testimony, and to the following extent:
COMMONWEALTH: In case number 14-CR-264, out
of the Fayette Circuit Court, the date of the offense is
February 10th of 2014. The offense is burglary in the
third degree. The defendant’s name is “Randall Ray
Northcutt.” The date the judgment was entered was May
9th of 2014 and he was sentenced to three years. And so,
he was released on that sentence to the home
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incarceration program, and you were supervising him on
that?[6]
OFFICER CHISM: Yes, ma’am.
COMMONWEALTH: And remind me what date it was
that he was released?
OFFICER CHISM: September 1st of 2017.
Like Ward, the jury in this matter was only informed of the name of
Northcutt’s prior felony offense and the dates associated with it (i.e., the date he
committed the offense, was convicted of it, and was later released to HIP while
serving his sentence). The jury was not given any violent details of his prior
offense, much less any information regarding what constitutes third-degree
burglary. Thus, if the trial court erred in denying Northcutt’s request to stipulate
“that he was a convicted felon subject to the rules of Probation and Parole,” its
error was harmless.
However, the trial court’s denial of Northcutt’s motion did not
constitute error, and for at least three reasons. First, to the extent the rule of Old
Chief has been adopted in Kentucky, its application has been limited to
prosecutions of a specific type of status offense; namely, “where the defendant
6
The trial court only permitted the Commonwealth to read this portion of Northcutt’s prior
judgment to the jury. The jury was not permitted to see Northcutt’s judgment.
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stands charged with being a felon in possession of some type of firearm[.]”7 Here,
Northcutt was charged with second-degree escape, which is not a status offense.
Second, where – as here – the Commonwealth elects to prosecute a
defendant for second-degree escape based upon a theory that he or she escaped
from custody while charged with a felony or serving a felony sentence,8 the
7
Anderson, 281 S.W.3d at 766. More fully, the Anderson Court explained:
We recognize that defendants may wish to admit or stipulate to previous
convictions or other matters in situations not involving felon in possession of a
handgun charges, such as cases involving PFO charges. But the application of
Old Chief’s rationale to other cases and situations has not been argued by the
parties to this case and, thus, is not properly before us. And the United States
Supreme Court has not expressly extended Old Chief to other scenarios. So we
emphasize that our holding today is limited only to cases like the one at hand—
where the defendant stands charged with being a felon in possession of some type
of firearm—and should not be construed as a license for criminal defendants
unilaterally to admit over the Commonwealth’s objection any other factors or
elements of the Commonwealth’s case that the defendant wishes to conceal from
the jury. Thus, in all other circumstances where a defendant’s status as a
convicted felon is relevant, such as PFO proceedings, courts should continue to
rely upon our previous holding that “the prosecution is permitted to prove its case
by competent evidence of its own choosing, and the defendant may not stipulate
away the parts of the case that he does not want the jury to see.”
Id. (footnotes omitted).
8
“Based on the facts, the prosecutor has a certain amount of discretion in how he or she charges
[second-degree] escape.” Lawton, 354 S.W.3d at 567. As noted, Lawton provides that HIP
qualifies as both “custody” and a “detention facility” for purposes of second-degree escape.
Here, while it certainly caused no prejudice to Northcutt, the Commonwealth’s case against
Northcutt apparently combined those theories. Specifically, the jury was instructed:
You will find the Defendant guilty of Escape, Second Degree under this
Instruction if, and only if, you believe from the evidence beyond a reasonable
doubt all of the following:
A. That in this county on or about September 25, 2017, and before
the finding of the Indictment herein, the Defendant was serving a
sentence for Burglary, Third Degree, a Class D Felony, when he
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Kentucky Supreme Court has held that the Commonwealth has a duty to prove
what the felony charge or conviction was. See Cohron v. Commonwealth, 306
S.W.3d 489, 495-96 (Ky. 2010), explaining:
Since it bore the burden of proof, the
Commonwealth had the responsibility to present
evidence of the fact that Cohron was in custody on June
12 on a charge or conviction of a felony offense. Since
this is what separates second-degree escape from third-
degree escape, the fact that Cohron had been charged
with felonies at the time of the June 12 escape was an
element that had to be proved beyond a reasonable doubt.
Because there was a total absence of evidence of that
element, the jury could only surmise what the June 9
charges were.
We do not believe it is obvious to an average
person what charges are felonies and what are
misdemeanors, particularly when the offenses charged
were not specifically enumerated for the jury.
(Emphasis added.)
Third, the latter part of Northcutt’s proffered stipulation (i.e., that he
was “subject to the rules of Probation and Parole”) was a misrepresentation.
Northcutt was under home incarceration, not “Probation and Parole.” Among the
escaped from 1600 Clayton Avenue, Lexington, Kentucky, the
home designated in the Defendant’s Home Incarceration Program
agreement;
AND
B. That at the time of his escape, the Defendant had been confined
to 1600 Clayton Avenue, Lexington, Kentucky under the terms of
the Home Incarceration Program and his absence therefrom was
not authorized by the terms of the Home Incarceration Program.
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many salient differences between those two forms of rehabilitation, a defendant on
probation or parole is not considered to be in “custody” for purposes of any
“escape” offense. See KRS 520.010(2). Whereas, a defendant on “home
incarceration” is not only considered to be in “custody,” but is also considered to
be incarcerated in a “detention facility” for purposes of KRS 520.030. See Lawton,
354 S.W.3d at 569-70.
In short, the trial court would have improperly undermined the
Commonwealth’s case against Northcutt if it had granted Northcutt’s motion to (1)
require the Commonwealth to accept his stipulation “that he was a convicted felon
subject to the rules of Probation and Parole”; and (2) “exclude at trial all other
evidence introduced to prove [he] was a convicted felon.” Therefore, it did not err
by denying his motion.
We have reviewed the breadth of what Northcutt has asserted in this
appeal, none of which indicates the Fayette Circuit Court erred in any respect. As
such, we AFFIRM.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Roy A. Durham, II Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky
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