Opinion
NO. 2014-CA-000316-MR
04-29-2016
GERARDO TURCIOS RODRIGUEZ APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kathleen K. Schmidt Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 12-CR-01015 OPINION
AFFIRMING
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BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND KRAMER, JUDGES. KRAMER, JUDGE: Gerardo Turcios Rodriguez appeals the Fayette Circuit Court's judgment convicting him of first-degree manslaughter and tampering with physical evidence. After a careful review of the record, we affirm because Rodriguez was not entitled to an evidentiary hearing to determine whether he qualified as a victim of domestic violence for purposes of exempting him from the effects of the violent offender statute.
I. FACTUAL AND PROCEDURAL BACKGROUND
During his plea colloquy, Rodriguez testified via an interpreter to the following facts: As of the plea colloquy, he had lived in the United States for nine years and was only able to communicate in Spanish. He typically worked as a roofer. However, Rodriguez had occasionally worked with the victim, Douglas Saylor, by taking things to the flea market for Mr. Saylor or doing work around Mr. Saylor's house. On the night in question, Rodriguez was at a bar and he was drunk. Mr. Saylor called Rodriguez on the telephone and asked Rodriguez to come to his house and drink. Rodriguez walked to Mr. Saylor's house. When Mr. Saylor opened the door, he was not wearing clothes, yet Rodriguez entered Mr. Saylor's house, anyway. Mr. Saylor gave Rodriguez "plenty to drink." While he was drinking Rodriguez began having a strange feeling in his throat and a strong headache. Mr. Saylor began touching Rodriguez, and Rodriguez pushed Mr. Saylor. Rodriguez fell to the floor and saw that Mr. Saylor had a knife in his hand. Mr. Saylor held the knife near Rodriguez's heart, so Rodriguez took the knife from him so that it would not be near his heart. When Rodriguez took the knife, he grabbed it by the blade and felt it cut into his fingers. Rodriguez did not remember anything else, other than going home and finding that his fingers and clothes were cut and seeing blood on his clothes. He did not even remember how he got home. Rodriguez threw his clothes in the trash.
Following a police investigation, Rodriguez was indicted on charges of murder and tampering with physical evidence. He moved to enter a guilty plea to the amended charge of first-degree manslaughter and to the charge of tampering with physical evidence. In exchange for his plea, the Commonwealth agreed to recommend a sentence of sixteen years of imprisonment for the manslaughter charge and one year of imprisonment for the tampering with physical evidence charge. The circuit court accepted Rodriguez's guilty plea.
After entering his guilty plea and prior to sentencing, Rodriguez moved for an evidentiary hearing to determine if he was eligible for probation as a victim of domestic violence or abuse pursuant to KRS 533.060(1). At the beginning of his sentencing hearing, the circuit court concluded that Rodriguez was not eligible for an evidentiary hearing because he had never even made the contention that he and the victim were domestic partners or that they had lived together or had a prior relationship. The court then sentenced Rodriguez to sixteen years of imprisonment for the first-degree manslaughter conviction and to one year of imprisonment for the tampering with physical evidence conviction. The sentences were ordered to be served concurrently, for a total of sixteen years of imprisonment. Rodriguez now appeals, contending that he was entitled to an evidentiary hearing regarding whether the domestic violence exception applies in this case to allow him to receive probation and to reduce his parole eligibility from eighty-five percent to twenty percent.
Kentucky Revised Statute.
II. ANALYSIS
Pursuant to KRS 439.3401, i.e., the "violent offender" statute, "[a] violent offender who has been convicted of a capital offense or Class A felony with a sentence of a term of years or Class B felony shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed." KRS 439.3401(3)(a). First-degree manslaughter is a Class B felony. See KRS 507.030. Therefore, the violent offender statute is applicable to Rodriguez.
However, another part of that statute, KRS 439.3401(5), provides in pertinent part as follows: "This section shall not apply to a person who has been determined by a court to have been a victim of domestic violence or abuse pursuant to KRS 533.060 with regard to the offenses involving the death of the victim or serious physical injury to the victim. . . ." In the present case, Rodriguez contends that he was entitled to a hearing to determine if he qualified as a victim of domestic violence pursuant to KRS 533.060, so that he might be exempted from the KRS 439.3401(3) requirement that he complete eighty-five percent of his sentence before becoming eligible for probation or parole.
Pursuant to KRS 533.060(1),
Although upon reading KRS 533.060(1) in conjunction with KRS 439.3401(5), it appears that a defendant does not qualify as a victim of domestic violence under KRS 439.3401(5) unless the offense involved the use of a "weapon from which a shot or projectile may be discharged," see KRS 533.060(1), this Court has previously held that this is "disproportionately harsh, leads to an absurd result, and does not conform to the intent of the legislature." Holland v. Commonwealth, 192 S.W.3d 433, 436 (Ky. App. 2005). The Holland Court continued, holding that "[t]he person's status as a victim of domestic violence is not dependent on the presence or absence of a weapon." Id. at 436-437. The Court concluded "that the statutes are readily harmonized if we interpret KRS 439.3401 as only referencing that part of KRS 533.060 having to do with the procedures for determining whether a person is a victim of domestic violence." Id. at 437. Therefore, pursuant to Holland, a weapon does not necessarily have to be involved in the commission of the offense for the defendant to qualify as a victim of domestic violence. --------
When a person has been convicted of an offense or has entered a plea of guilty to an offense classified as a Class A, B, or C felony and the commission of the offense involved the use of a weapon from which a shot or projectile may be discharged that is readily capable of producing death or other serious physical injury, the person shall not be eligible for probation, shock probation, or conditional discharge, except when the person establishes that the person against whom the weapon was used had previously or was then engaged in an act or acts of domestic violence and abuse as defined in KRS 403.720 against either the person convicted or a family member as defined in KRS 403.720 of the person convicted. If the person convicted claims to be exempt from this statute because that person was the victim of domestic violence and abuse as defined in KRS 403.720, the trial judge shall conduct a hearing and make findings to determine the validity of the claim and applicability of this exemption. The findings of the court shall be noted in the final judgment.
As stated in KRS 533.060(1), "[i]f the person convicted claims to be exempt from this statute because that person was the victim of domestic violence and abuse as defined in KRS 403.720, the trial judge shall conduct a hearing and make findings to determine the validity of the claim and applicability of this exemption." See also Kirby v. Commonwealth, 132 S.W.3d 233, 234 (Ky. App. 2004) (stating that the defendant's "status as a violent offender or victim of domestic violence should be governed by KRS 439.3401(5), which in conjunction with KRS 533.060, requires a hearing and findings to be made concurrently with final judgment and sentencing."). Rodriguez alleges that the circuit court should have held an evidentiary hearing to determine whether he qualified as a victim of domestic violence and abuse. Pursuant to KRS 403.720(1), "'Domestic violence and abuse' means physical injury, serious physical injury, stalking, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple[.]" Further, KRS 403.720(5) provides that "'[m]ember of an unmarried couple' means each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who are living together or have formerly lived together[.]"
Rodriguez never alleged that he and Mr. Saylor were family members. Further, at the beginning of the sentencing hearing in this case, the circuit court allowed Rodriguez's counsel to argue the issue of whether an evidentiary hearing was necessary on this issue. At the conclusion of counsel's argument, the circuit court noted that Rodriguez never claimed that he and Mr. Saylor were an unmarried couple; that they were living together; or that they had previously lived together. In fact, Rodriguez still does not make such allegations even in the present appeal. Nevertheless, he continues to claim that the circuit court should have held an evidentiary hearing to determine whether he was the victim of domestic violence. His claim is misplaced. There was no need for the circuit court to hold an evidentiary hearing on the issue of whether Rodriguez was the victim of domestic violence when Rodriguez never even claimed that he and Mr. Saylor were family members or that they were members of an unmarried couple. If the circuit court had held an evidentiary hearing under these circumstances, it would not only have been futile, but also a waste of judicial resources. Consequently, the circuit court did not err in failing to hold an evidentiary hearing to determine whether Rodriguez qualified as a victim of domestic violence for purposes of exempting him from the effects of the violent offender statute.
Accordingly, the judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Kathleen K. Schmidt
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky