IMP_ORTANT NOTICE THIS OPINION IS DESIGNA TED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CI VIL PR OCED URE PR OMUL GA TED B Y THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS A UTHORITY IN ANY OTHER
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IMP_ORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PR OCED URE PROMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY IN ANY OTHER
CASE INANY CO URT OF THIS STA TE.
RENDERED : JUNE 16, 2005
NOT TO BE PUBLISHED
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2003-SC-1063-MR
DATE
TIMOTHY CHAMBERS
V.
5
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
2000-CR-0001 & 2000-CR-0055
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Timothy Chambers, was convicted by a jury in Greenup Circuit Court
of eight counts of criminal attempt to commit an unlawful transaction with a minor, three
counts of second degree sodomy, four counts of use of a minor in a sexual
performance, and one count of promoting a sexual performance by a minor . The jury
recommended that the sentences be served consecutively for a total of two hundred
years. Pursuant to the requirements of KRS 532 .110(1)(c), the trial judge reduced the
sentence to seventy years, the maximum allowed under the statute .
An appeal of the conviction was originally considered in Chambers v.
Commonwealth , 2001-SC-0088-MR (August 21, 2003) . This Court determined that the
trial court erred in denying Appellant's motion for a directed verdict on the four counts of
use of a minor in a sexual performance . Slip op . at 6. Accordingly, all four counts of
use of a minor in a sexual performance were reversed and the case was remanded to
the circuit court for re-sentencing in conformity with the opinion .
.L,
On November 20, 2003, Appellant appeared before the Greenup Circuit Court
for re-sentencing . Defense counsel filed a motion requesting that Appellant be resentenced by a jury; the motion was denied . At the same hearing, defense counsel
also requested that the re-sentencing hearing be postponed so that a new pre-sentence
investigation (PSI) report could be prepared . This request was denied on the basis of
defense counsel's admission that an updated PSI would not contain any new or
different information .
Appellant now appeals to this Court as a matter of right. Ky. Const. ยง 110 (2)(b) .
He argues that: (1) the trial court denied him due process of law by refusing to allow
him to be re-sentenced by a jury; and (2) his due process rights were again violated
when the trial court failed to obtain an updated PSI before his re-sentencing hearing .
Finding no merit in either of these claims, we affirm Appellant's sentence.
Appellant first argues that the trial court erred in denying his motion for jury resentencing. At the re-sentencing hearing, the trial court removed the four overturned
counts of use of a minor in a sexual performance, which had resulted in a combined
seventy-year sentence, and simply subtracted those seventy years from the jury
recommended two-hundred year sentence . Appellant argues that he was prejudiced by
this method because the original sentencing jury had fixed the punishments on the
other counts believing that he had also been found guilty of four counts of use of a
minor in a sexual performance . According to Appellant, the sentencing jury might have
considered the totality and number of the charges against him when fixing the possible
penalties on all the charges, which would have produced an unfair result . He submits
that jury re-sentencing is required whenever a sentence determination might have been
influenced by a vacated conviction .
In addition to prejudicing him, Appellant also argues that statute and case law
mandated jury re-sentencing . We consider this argument first. Appellant maintains that
the trial court's refusal to allow him to be re-sentenced by a jury violated KRS
532 .055(2), which states that the court shall conduct a sentencing hearing before the
jury and the jury will determine the punishment to be imposed . He also argues that the
refusal violated KRS 29A.270(1), which provides that a defendant "shall have the right
to a jury trial in all criminal prosecutions," and RCr 9 .84, which states that "[w]hen the
jury returns a verdict of guilty it shall fix the degree of the offense and the penalty . . . . ..
Appellant also cites Wilson v. Commonwealth , 765 S.W.2d 22 (Ky. 1989), and Franklin
v. Commonwealth , 490 S .W .2d 148 (Ky. 1973), in support of his argument that jury resentencing was required .
We find the statutes and cases to which Appellant cites inapplicable . KRS
532 .055, KRS 29A.270, and RCr 9.84 grant a criminal defendant the right to a jury trial
and to be sentenced by the jury. However, these statutes have not been violated in this
matter. Appellant was found guilty by a jury and was sentenced by the jury at the time
of his trial, in accordance with applicable statutes. The record reveals that the
sentencing jury recommended sentences for each of the twenty charges of which
Appellant was found guilty . All of these charges and sentences were reviewed in
Appellant's prior appeal. While the four counts of use of a minor in a sexual
performance were reversed, no error was found with respect to the remaining
convictions . Simply put, the remaining sixteen convictions and sentences have been
affirmed by this Court and there is simply no basis to re-sentence Appellant on those
charges.
Furthermore, neither Wilson nor Franklin provides authority to grant Appellant
jury re-sentencing on all charges. In both cases, the reviewing court affirmed the
convictions, but remanded the cases for re-sentencing due to errors in the sentencing
phase . Upon appealing the re-sentencing, it was determined that both defendants
should have been re-sentenced by a jury. The cases, however, are not analogous to
the present matter because in neither case was the conviction reversed ; rather, both
cases were initially reversed to correct errors in the sentencing phase . In Wilson, the
matter was remanded for re-sentencing because the initial sentencing jury had failed to
find the existence of a statutory aggravating factor as required by KRS 532 .025(3). In
Franklin , it was determined that the instructions delivered to the initial sentencing jury
were ambiguous and therefore invalid . In effect, then, both Franklin and Wilson were
entitled to jury re-sentencing because they had never received valid penalties fixed by a
jury. Here, however, Appellant is not being re-sentenced on an affirmed conviction, nor
is any error in the initial sentencing phase being alleged . A jury sentenced Appellant,
those sentences were reviewed and affirmed by this Court, and therefore no basis
exists to re-sentence Appellant on those convictions .
Moreover, we are not persuaded that Appellant was substantially prejudiced
when the sentencing jury fixed punishment believing that he was guilty of the four
counts of use of a minor in a sexual performance . The thrust of Appellant's argument is
that the jury might have sentenced him less severely had it known he was not guilty of
the four additional counts. Appellant, however, is unable to direct our attention to any
material demonstration of prejudice. This argument amounts to little more than
speculation or conjecture . It seems more likely that the jury fixed punishment based on
the overwhelming evidence of Appellant's guilt. Reversal is not warranted in this
instance .
Appellant next contends that the trial court's failure to grant his request for an
updated PSI constitutes reversible error. At the re-sentencing hearing, defense counsel
requested a postponement in order to prepare an updated PSI . The trial judge denied
this request because defense counsel admitted that the new PSI would not contain any
new or different information . Additionally, the trial judge noted that Appellant had been
incarcerated and under the jurisdiction of the Department of Corrections since the time
of the existing PSI .
Appellant argues that even though the new PSI might not contain any new or
different information, failure to grant his request still resulted in a violation of KRS
532.050, which requires a PSI report to be prepared before sentencing on a felony
conviction . He points to the fact that the existing PSI was prepared almost three years
before the re-sentencing hearing to suggest that it may now be inadequate to comply
with the statutory requirements . According to Appellant, the length of time that had
transpired between the existing PSI and the re-sentencing hearing created a
reasonable likelihood that the existing PSI would be incorrect or incomplete. Appellant
cites to Doolan v. Commonwealth , 566 S .W .2d 413 (Ky. 1978), to support this
contention .
We find no error in the trial court's decision to deny Appellant's motion. In
Doolan , this Court determined that the trial court erred in denying the appellant's
request to update his PSI upon re-sentencing. The present matter is factually
distinguishable . In Doolan , the appellant challenged the accuracy of specific
information contained in the existing PSI, but the trial court refused to allow time for the
appellant to controvert the information in the report. Here, on the other hand, defense
counsel admitted that no new information would be contained in the report. More
importantly, Appellant did not object or challenge the accuracy of any of the information
in the report . Simply stated, it is impossible to see how Appellant suffered prejudice by
the trial judge denying his request for an updated PSI when Appellant's counsel
conceded that an updated PSI would produce no changes or new information .
The judgment of the Greenup Circuit Court is, therefore, affirmed .
Lambert, C.J. ; Cooper, Graves, Johnstone, Scott, and Wintersheimer, JJ .,
sitting . All concur.
COUNSEL FOR APPELLANT :
Shannon Dupree
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
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