LAMBERT, Judge.
Branden Baldridge appeals from the judgment of the Boyd Circuit Court finding him guilty of complicity to commit burglary in the first degree and criminal mischief in the first degree. Baldridge was sentenced to ten years' imprisonment and must serve 85% of that sentence before being considered for parole, due to his classification as a violent offender. Baldridge argues that the trial court erred when it determined that he was a violent offender and designated him as such in the final judgment without submitting the issue to a jury. Because we agree with Baldridge that a palpable error occurred, we reverse and remand.
On June 14, 2009, Ashleigh Smith arrived at her home in Boyd County and noticed a strange vehicle parked in her driveway. The same bright blue truck had been at her residence previously, and a man knocked on her door but left when she kicked the door and her dog barked. Thus, when she saw the bright blue truck again, she immediately became suspicious and did not pull into her driveway, but instead pulled to the side of the road and phoned relatives. When her relatives arrived, they all proceeded down her driveway. As the family pulled up outside the trailer home, they observed two men run from behind the trailer and jump into the blue truck. The driver of the truck backed up, hitting a sandbox, and then he gunned the engine and the tires spun on the gravel. The truck came towards them, and it glanced off Ms. Smith's aunt, Juanita Holbrook's, car. Ms. Smith's uncle, Paul Bartley, Jr. (Mr. Bartley) ran toward the truck, as if to stop it. The truck did not stop. Mr. Bartley jumped onto the hood, smashing the windshield with the impact of his body. Mr. Bartley was thrown to the ground as the truck continued driving away from Ms. Smith's home. The parties noted the license plate number of the truck and tended to Mr. Bartley until the police arrived.
Mr. Bartley was checked by paramedics, but because his wife was recovering from surgery herself, he did not want her to get a call from someone else telling her that he was at the hospital, so he went home prior to being driven to the hospital. An examination revealed that both of his shoulders were damaged, and it was later determined he suffered permanent loss of range of motion in his left shoulder. His leg, arm, chest, and face also have permanent scars from the impact with the windshield and the glass imbedded in his skin. The eyeglasses he was wearing were never recovered, and the hat he was wearing was recovered by police in the back of the blue truck the appellant, Baldridge, was driving. A local body shop repaired Ms. Holbrook's car, which suffered damages of over two thousand dollars.
Baldridge and a co-defendant were later apprehended. Baldridge told police he was not involved in the burglary in the home, that he only drove the truck used in the burglary. Baldridge was charged by criminal information with first-degree burglary and first-degree criminal mischief for the damage to Ms. Holbrook's car. The jury found Baldridge guilty of complicity to commit burglary in the first degree and criminal mischief in the first degree, as stated above. Prior to the sentencing phase, the Commonwealth asked the trial court to make a ruling, as a matter of law, as to whether Mr. Bartley suffered serious physical injuries. The Commonwealth tendered a copy of the unpublished opinion of the Kentucky Supreme Court in Clay v. Commonwealth, 2008 WL 2167892 (Ky. 2008), arguing that Clay made it clear that the trial court should determine whether Mr. Bartley suffered a simple physical injury or a serious physical injury for purposes of Kentucky Revised Statutes (KRS) 439.3401. If Baldridge was found to have inflicted a serious physical injury, Baldridge would be considered a violent offender by the Department of Corrections and would thus have to serve 85% of his sentence before being eligible for parole.
The trial court found that Clay made it clear that the trial court was the finder of fact on the question of whether a simple physical injury or a serious physical injury had been suffered. The trial court instructed that defense counsel could question a probation and parole officer who testified in the penalty phase about the consequences to Baldridge if the court were to find him to have caused serious physical injury and thus be classified as a violent offender. Defense counsel stated that she did not think she was entitled to a jury instruction on the issue, based on the statute. Otherwise, there was no objection to the trial court's ruling or the Commonwealth's request for a finding on the serious physical injury issue.
The jury recommended a sentence of ten years, running the minimum sentences for both offenses concurrently. Baldridge now appeals, arguing that the trial court erred when it determined that it was the proper party to determine whether Mr. Bartley suffered a serious physical injury. Because his original trial counsel did not properly preserve the issue and actually stated that she did not think Baldridge was entitled to a jury instruction on the issue, Baldridge acknowledges that his argument is not preserved for review. He urges this Court to review for palpable error under Kentucky Rules of Criminal Procedure (RCr) 10.26.
Under RCr 10.26, an unpreserved error may be noticed on appeal only if the error is "palpable" and "affects the substantial rights of a party," and even then relief is appropriate only "upon a determination that manifest injustice has resulted from the error." An error is palpable if it "affects the substantial rights of a party" and if "it is more likely than ordinary error to have affected the judgment." Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005). An unpreserved error that is both palpable and prejudicial still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice, unless, in other words, the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
We agree with Baldridge that a sentencing error, or a clerical error that results in a sentencing error, such as being designated a violent offender, qualifies as a palpable error and warrants our review.
In particular, Baldridge argues that the trial court erroneously determined that he was a violent offender in the final judgment and sentence of conviction. Baldridge argues that this determination should be made by a jury and not by the trial court.
The applicable statute, KRS 439.3401, states:
(b) A Class A felony;
(Emphasis added). Baldridge contends that Kentucky case law indicates that the jury must determine whether a serious physical injury occurred, as opposed to the trial court making that designation. Baldrige argues that the judge noting the occurrence of a serious physical injury on the final judgment is clerical in nature, and that the Department of Corrections then uses this notation when it classifies inmates as violent offenders.
Baldridge urges this Court to review several unpublished cases by the Kentucky Supreme Court addressing the existence of a serious physical injury under KRS 439.3401. In Rogers v. Commonwealth, 2003 WL 22974913, 4-5 (Ky. 2003), the Court held that a trial court erred in designating a defendant as a "violent offender" on multiple counts when the jury was only charged with determining whether serious physical injuries were inflicted on one offense.
(Citations and footnotes omitted).
The Supreme Court affirmed the holding in Rogers and in Floyd v. Commonwealth, 2009 WL 736002 (Ky. 2009). There, the appellant was indicted for multiple offenses, including rape in the first degree and burglary in the first degree. At trial, however, he was acquitted of the rape charge, and the jury was not charged with qualifying whether the victim of his burglary suffered serious physical injuries. Id. at *9. The Court held it was error to designate Floyd as a violent offender because there had been no finding by a jury that he had caused a serious physical injury while committing burglary in the first degree.
Id. at 10-11. (Emphasis added).
Applying Roger and Floyd to the instant case, Baldridge was charged with complicity to commit first-degree burglary and the jury was instructed that in order to find him guilty, among other things, it had to find that "when in effecting entry or while in the building or in immediate flight there from, he or another participant in the crime caused physical injury to a person who was not a participant in the crime." A serious physical injury was not an element of burglary in the first degree or criminal mischief in the first degree, the only two crimes with which Baldridge was charged. Thus, because the jury did not determine that a serious physical injury was inflicted concurrently with the offense, it was error for the trial court to designate Baldridge as a violent offender in the final judgment and order. The jury was permitted to hear evidence of Mr. Bartley's injury after the guilty phase, during the sentencing phase, but the Commonwealth did not prove this as part of its case in chief, and the trial judge noted on the record that
Because the trial court improperly determined that a serious physical injury was suffered by the victim, as opposed to the jury making the determination that a serious physical injury occurred during the commission of the charged offenses, we must reverse. Being sentenced as a violent offender subjects Baldridge to a longer sentence before being eligible for parole and prevents him from being eligible for probation. This amounts to a palpable error and affects Baldridge's substantial rights. Accordingly, we reverse the trial court's order indicating that Baldridge is a violent offender and remand for proceedings consistent with this opinion.
KELLER, JUDGE, CONCURS.
MOORE, JUDGE, CONCURS IN RESULT ONLY.
