Opinion of the Court by Justice NOBLE.
One issue in these combined appeals requires us to determine whether a defendant convicted of committing two or more felony sex crimes against two or more victims is subject to the statutory cap on sentences found in Kentucky Revised Statutes (KRS) 532.110(1)(c). After closely examining the relevant law and arguments of the parties, we conclude that the cap does apply to such a defendant.
A jury convicted Larry Joe Stambaugh of committing two counts of first-degree sexual abuse of H.M.S., who was less than twelve years of age; one count of first-degree sexual abuse of M.R.S., who was less than twelve years of age; and one count of first-degree sexual abuse of M.E.S., who was less than twelve years of age. The jury recommended that Stambaugh be sentenced to ten years' imprisonment for each conviction, to be served consecutively, for a total effective sentence of forty years' imprisonment.
After considering the arguments of counsel, however, the trial court sentenced Stambaugh to a total of twenty years' imprisonment because it believed it had "no choice absent further direction from the appellate courts to cap the sentence recommended by the jury at twenty ... years pursuant to KRS 532.110(1)(c)."
This case revolves around the proper interpretation of KRS 532.110(1)(c) and (d). KRS 532.110 provides, in pertinent part, as follows:
The intent of KRS 532.110(1) is to first recognize the discretion of the trial court in imposing sentence in criminal cases, and then to list the exceptions the legislature imposed on that discretion. There are four areas of exception, including that the aggregate of indeterminate terms cannot exceed the maximum length for the longest extended term which would be authorized under the PFO statute for the highest class of crime for any of the convictions, and never more than 70 years; and that two or more felony sex offenses involving two or more victims must run consecutively.
Since Stambaugh's victims were all less than twelve years of age, his sexual abuse convictions were all Class C felonies.
KRS 532.110(1)(d) provides, in essence, that a person convicted of two or more qualifying sexual felonies involving two or more victims must be sentenced to consecutive terms of imprisonment. There is no question that Stambaugh's four convictions
In plain language, in this case KRS 532.110(1)(d) would appear to require Stambaugh to be sentenced to four consecutive ten-year sentences for a total maximum sentence of forty years' imprisonment. On the other hand, subsection (1)(c) of that same statute would appear to cap Stambaugh's sentence at a maximum of twenty years' imprisonment. This appears to create an inconsistency between the two subsections of the statute.
Of course, we must attempt to harmonize seemingly divergent statutory directives if it is reasonably possible to do so.
All subsection (1)(d) says is that sexual offenses must run consecutively. For example, three convictions for sex abuse in the first degree, where it is a Class D felony, with a maximum penalty of five years (and a maximum "extended term" of 20 years under the PFO statute), could all be run consecutively with no impact on subsection (1)(c) at all. Thus when the consecutive sentences for lesser sex crimes are less than 20 years, the two sections obviously cannot be in conflict. The intent behind (1)(d) was to remove judicial discretion when sentencing sex offenses generally by requiring that the sentences be run consecutively. Had (1)(d) not been enacted, sentencing courts, under the text of subsection (1) could run lesser sexual offenses concurrently, leading to a scenario where a trial court could, at the extreme, sentence a sex offender convicted of fifty counts of sex abuse to one year in prison. The legislature acted to remove that possibility in sex crime cases, reflecting the general public's view that these crimes are particularly heinous, and sex offenders should not be able to receive unduly light treatment. However, none of this conflicts with the purpose of (1)(c).
For years, state governments, and particularly Kentucky, have struggled with prison overcrowding. Incarceration carries a steep cost to the taxpayer. In enacting (1)(c), the legislature determined that there must be a reasonable limit on the amount of time given for punishment, doing a cost-benefit analysis. In doing so,
Admittedly, subsection (1)(d) was enacted after (1)(c), and the legislature did not state whether (1)(c) controlled over (1)(d) (though it clearly could have). But neither did the legislature say that (1)(d) controlled over (1)(c). Such a statement was unnecessary, because the mandatory language in (1)(c) speaks for itself, and the intent of (1)(d)—to prevent light sentences in sex offenses—is not harmed by limiting the aggregate length of time to serve any more than any other category of felony. The two sections operate independently of each other until the highest classes of sex offenses become the convictions. Unless the legislature intended to eviscerate (1)(c) in sex offense cases, there is no reason to read more into (1)(d) than is there. The language in (1)(c) is clear and mandatory, and can certainly be applied to sex offenses the same as any other type of offense. Since the two subsections have entirely different purposes, it is not surprising that the legislature saw no need for undue verbiage.
It is clear, then, that the legislature intended for sentencing judges to run sex offense sentences consecutively, but with a limit on the allowable aggregate sentence. Under such a reading, this Court gives effect to both subsections of KRS 532.110, which we are required to do, if possible, when construing a statute, and also here under the rule of lenity.
As such, the trial court's imposition of consecutive sentences but with an maximum aggregate of twenty years was not erroneous.
Stambaugh contends the trial court erred by refusing to allow him to attempt to impeach M.R.S. with an undated, unsigned letter she had purportedly written to Stambaugh. The letter generally provides that its author loved the recipient, who is repeatedly referred to as "Dad" or "Daddy." The trial court refused to allow Stambaugh to impeach M.R.S. with the letter because it had not been provided to the Commonwealth in discovery.
On appeal, the Commonwealth contends that: (a) the issue is not properly preserved for review because Stambaugh raises on appeal a different reason for the letter's admissibility than he did at trial; (b) the trial court correctly excluded the letter because it was not properly disclosed in discovery; and (c) any error is harmless. Although the letter appears to have not been subject to disclosure in discovery and the issue appears to have at least arguably been preserved, we ultimately agree with the Commonwealth that any error is harmless.
We begin by noting that it appears that Stambaugh is correct when he asserts that the letter was not subject to reciprocal discovery under our precedent. The reciprocal discovery order issued by the trial court required Stambaugh to provide the Commonwealth with "reciprocal discovery as specified in RCr [Kentucky Rules of Criminal Procedure] 7.24(3)(A)(i)." We recently held that a defendant was not required
It appears that this issue was, at least arguably, adequately preserved for our review. The Commonwealth contends it is not properly preserved because it alleges that Stambaugh did not raise unequivocally to the trial court our holding in Gray. From the brief bench conference held on this issue, we know that the question of whether the letter was encompassed by the discovery order was brought before the trial court, although without a discussion of our holding in Gray. So we conclude that the issue was at least arguably preserved because the parties' arguments "adequately alerted" the trial court to the issue.
M.R.S. specifically testified that Stambaugh placed his penis—which she testified Stambaugh called his "mean chocolate," a fact that M.R.S.'s mother corroborated—inside her vagina, which she called her "kitty." M.R.S. also testified that she saw Stambaugh place his tongue and fingers on H.M.S.'s "kitty" and, furthermore, that she (M.R.S.) saw Stambaugh place his finger in M.E.S.'s "middle part." M.R.S. also testified that Stambaugh threatened to harm her if she disclosed that sexual contact. M.R.S.'s mother also testified that she saw Stambaugh touching H.M.S.'s "kitty" with his finger and with his penis. The mother also testified that she saw Stambaugh touch M.E.S.'s "kitty."
In an effort to counteract this damning testimony, Stambaugh was purportedly going to use the letter, which he claims M.R.S. wrote to him, to: (1) impeach M.R.S. regarding whether she had written him a letter since he left her home, (2) impeach M.R.S. regarding her denial that she referred to Stambaugh as "Dad" or "Daddy," and (3) impeach M.R.S. regarding her denial that she told Stambaugh she loved him.
Although perhaps impeachment on those three matters would have had some theoretical
Considering all the evidence in this case,
For the foregoing reasons, Larry Joe Stambaugh's four convictions and sentences for sexual abuse in the first degree are affirmed.
ABRAMSON, SCHRODER, SCOTT and VENTERS, JJ., concur.
MINTON, C.J., dissents by separate opinion in which CUNNINGHAM, J., joins.
MINTON, C.J., dissenting:
I agree with the majority that there is a conflict between KRS 532.110(1)(d) and KRS 532.110(1)(c). But I strongly disagree with the majority's resolution of that conflict. So I respectfully dissent from the majority's conclusion that the general sentencing cap of KRS 532.110(1)(c) controls the mandatory consecutive sentencing provision for certain sexual offenders set forth in KRS 532.110(1)(d).
Of course, because the interpretation and construction of statutes is a matter of
First, the majority's conclusion is contrary to the canon that provides that specific statutes control over general statutes. Among the most basic tenets of statutory construction is the familiar rule that when construing two conflicting statutes involving the same subject matter, "the more specific statute controls over the more general statute."
Second, the majority's conclusion is contrary to the canon that counsels that later-enacted statutory provisions take precedence over older statutory provisions dealing with the same subject matter.
And what authority does the majority cite for failing to employ these two basic tenets of statutory construction? None.
The majority merely divines that the General Assembly must have wanted the general cap found in subsection (1)(c) to control over the specific, mandatory consecutive sentencing provisions of subsection (1)(d) because our prisons are crowded and the costs of incarceration are high. Although the correctional facilities of this Commonwealth may be crowded and expensive to operate, the majority is unable to cite anything in either the record of this case or any prior decision of this Court to support the majority's conclusion that these factors were ever considered by the General Assembly when it enacted the mandatory sentencing provision of subsection (1)(d). Indeed, why would the General Assembly logically have enacted any such mandatory consecutive sentencing statute if it had been concerned with prison costs and overcrowding? It strains credulity to conclude that the General Assembly
There is nothing in either subsections (1)(c) or (1)(d) of KRS 532.110 that plainly states, or even hints, that the mandatory consecutive sentencing directive in subsection (1)(d) must yield to the general cap on sentences in subsection (1)(c). If the General Assembly had intended for the specific, new mandatory sentencing provision of subsection (1)(d) to be subordinate to the general, existing statutory cap found in subsection (1)(c), would not it have plainly said so? After all, the traditional methods of statutory interpretation would have, until today, caused the later-enacted statute to take precedence over any conflicting, earlier-enacted statute. And we, as a reviewing court, must make the fundamental presumption that the General Assembly was aware of its previous enactments when it enacted a new statute on the same subject.
The majority opines that the General Assembly did not say that the cap in (1)(c) controlled over the mandatory consecutive sentencing provision in (1)(d) because "[s]uch a statement was unnecessary, because the mandatory language in (1)(c) speaks for itself...." I disagree.
First, the language in subsection (1)(d) is also mandatory in nature, as evidenced by the presence in that subsection of the mandatory verb shall.
Second, I believe it far more likely that the General Assembly believed a statement as to which subsection of KRS 532.110(1) would control was unnecessary because it relied upon any reviewing court to follow the canons of statutory construction regarding later-enacted and more specific statutes controlling earlier-enacted and more general statutes. Although better practice surely would have been for the General Assembly to have made its intent unmistakable and plain, I believe the majority errs by concluding that the General Assembly's silence supports its conclusion.
In summary, the majority correctly notes that there is a conflict between subsections (1)(c) and (1)(d) of KRS 532.110. But I believe the majority errs by holding that the older, more general provision of subsection (1)(c) of that statute takes precedence over the more recently enacted and more specific subsection (1)(d) of that statute. So I believe the trial court was required to apply KRS 532.110(1)(d) to sentence Stambaugh to consecutive terms of imprisonment for all of his qualifying felonies (i.e., a cumulative sentence of forty years' imprisonment).
I would reverse Stambaugh's sentence and remand this matter to the trial court for re-sentencing in accordance with KRS 532.110(1)(d). Because the majority regrettably comes to a different conclusion, I respectfully dissent from section III(A) of the majority opinion.
CUNNINGHAM, J., joins.
Indeed, we also would find the error to be harmless beyond a reasonable doubt if we assumed, as the Commonwealth seems to do in its reply brief, that the error in excluding the letter is somehow of constitutional magnitude. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
