Michael v. Hayes v. Commonwealth of Kentucky ( 2021 )

RENDERED: AUGUST 26, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0455-MR
MICHAEL V. HAYES APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE MITCHELL PERRY, JUDGE
NO. 13-CR-002996
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
Although a defendant who enters an unconditional guilty plea typically
waives his right to appeal, this Court has recognized some exceptions to the
general rule, one of which is the appealability of so-called sentencing issues.
Windsor v. Commonwealth, 250 S.W.3d 306 (Ky. 2008). This case requires us
to consider again the scope of such sentencing issues, and more specifically
whether a defendant who has entered an open plea can subsequently appeal
on the grounds that his statutorily-authorized sentence should be reversed
because the trial court did not give adequate consideration to mitigation
evidence. Finding first that this type of appeal exceeds our current post-guilty-
plea precedent, we further decline to extend the sentencing exception to
encompass a dispute about the weight to be accorded mitigation evidence.
Accordingly, we hold Appellant Michael V. Hayes has waived his right to appeal
his sentence but recognizing perhaps some uncertainty regarding appealability
in these circumstances, we also address the merits of his appeal. For the
reasons stated herein, we affirm the judgment of the Jefferson Circuit Court.
FACTUAL AND PROCEDURAL BACKGROUND
The police were called to Javon Dawson’s apartment in early November
2013. They found Dawson dead on the floor, her throat cut. The investigation
led to an interview with Hayes, a neighbor who usually bought drugs from
Dawson’s cohabitating boyfriend. At the time of the murder, Dawson’s
boyfriend was in jail and Dawson was selling drugs to raise money for his bail.
The day before Dawson’s murder, a neighbor heard Hayes banging on
Dawson’s door, asking to buy $100 worth of crack on credit. Although Hayes
initially implicated another neighbor in the murder, he soon admitted killing
Dawson.
A Jefferson County grand jury indicted Hayes for murder, robbery in the
first degree, and tampering with physical evidence. The Commonwealth gave
notice that it would seek the death penalty based upon the aggravated
circumstance that Hayes murdered Dawson during the commission of robbery
in the first degree. The Commonwealth’s Offer on a Plea Agreement, which
Hayes accepted, described the facts of the case as follows:
On November 3, 2013, the defendant entered . . . the residence
of . . . Dawson and her three children, and murdered Ms. Dawson
with a 12-inch long kitchen knife. Ms. Dawson’s three children
were asleep in the apartment when this happened. The defendant
was thereby able to steal items from the victim including her
purse, which was recovered in his apartment. When officers
arrived at his apartment during a neighborhood canvas, he hid in
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his hall closet a bag containing the purse and its contents, the
knife, and some bloody clothing.
The Plea Agreement also stated that the plea
is being entered as an open plea, without agreement between the
parties as to penalty. The defendant stipulates that, given that he
committed the offense of murder while he engaged in the
commission of a robbery in the first degree, this is an aggravating
circumstance under KRS 532.025(2)(a)(2) and gives rise to the
entire penalty range for capital murder as set out in KRS
532.030(1)[1] and outlined above [(20 to 50 years, or life, or life
without parole, or life without parole for 25 years, or death)].
Therefore, the parties may argue for any penalty in that range and
the Court will have sentencing discretion for the entire range of
penalties.
The circuit court accepted Hayes’ open guilty plea to the three charges.
Its written order noted Hayes’ stipulations and that the Commonwealth made
no sentencing recommendation on the charges.
To assist the circuit court in the sentencing decision, in addition to the
presentence investigation report prepared by the probation officer,2 the
1 Kentucky Revised Statute (KRS) 532.030(1) states: When a person is convicted
of a capital offense, he shall have his punishment fixed at death, or at a term of
imprisonment for life without benefit of probation or parole, or at a term of
imprisonment for life without benefit of probation or parole until he has served a
minimum of twenty-five (25) years of his sentence, or to a sentence of life, or to a term
of not less than twenty (20) years nor more than fifty (50) years.
2 KRS 532.050 provides the presentence procedure for felony conviction. It
states in part:
(1) No court shall impose sentence for conviction of a felony, other than a
capital offense, without first ordering a presentence investigation after
conviction and giving due consideration to a written report of the
investigation. The presentence investigation report shall not be waived;
however, the completion of the presentence investigation report may be
delayed until after sentencing upon the written request of the defendant
if the defendant is in custody.
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Commonwealth filed a Statement of Facts and Hayes filed a Sentencing
Memorandum and a mitigation consultant’s report. The Commonwealth also
presented testimony from two of Dawson’s sisters and entered a victim impact
statement into the record during the sentencing hearing. Hayes did not call
any witnesses and did not testify on his own behalf. In response to Hayes’
request, the circuit court noted that it had already reviewed Hayes’
memorandum and the mitigation report but would do so again prior to making
its sentencing decision.
The Sentencing Memorandum and the mitigation report both conveyed to
the trial court that Hayes had relatively little criminal history—and specifically
no violent crimes. Moreover, Hayes’ current crimes for which he was to be
sentenced were related to 1) his never-treated cocaine and crack cocaine drug
(2) The report shall be prepared and presented by a probation officer and
shall include:
(a) The results of the defendant’s risk and needs assessment;
(b) An analysis of the defendant’s history of delinquency or criminality,
physical and mental condition, family situation and background,
economic status, education, occupation, and personal habits;
(c) A preliminary calculation of the credit allowed the defendant for time
spent in custody prior to the commencement of a sentence under KRS
532.120; and
(d) Any other matters that the court directs to be included.
....
(5) The presentence investigation report shall identify the counseling
treatment, educational, and rehabilitation needs of the defendant and
identify community-based and correctional-institutional-based programs
and resources available to meet those needs or shall identify the lack of
programs and resources to meet those needs.
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addiction which was triggered by the 2006 deaths of his first fiancée and an
infant daughter, and 2) his being under the influence of drugs at the time of
the offenses. The two filings described Hayes’ use of drugs and alcohol prior to
using crack and cocaine. The memorandum described his early drug and
alcohol use as insignificant. Hayes began using marijuana around twelve or
thirteen years of age and started drinking alcohol around age eighteen, using
both drugs and alcohol a few times a week until 2006, the year he turned
twenty-six years old and lost his fiancée and child in a motor vehicle accident.
At the penalty hearing, in accordance with the Sentencing Memorandum,
defense counsel requested the circuit court to also consider Hayes’ remorse,
acceptance of responsibility for the crimes, respect for the judicial proceedings
throughout his six years before the court, and his ability to be rehabilitated. In
his Sentencing Memorandum Hayes requested a sentence of twenty years for
the murder, ten years for the robbery, and one year for the tampering with
physical evidence, with the sentences to run concurrently. The
Commonwealth, recounting the brutal crime, closed its argument asking that
Hayes be sentenced to life without the possibility of parole.
The circuit court recessed to deliberate and then returned, announcing
its sentencing decision. The trial court began by reviewing Hayes’ open plea
and Hayes’ awareness that the trial court could sentence him to any of the
possible sentences, a circumstance to which the parties again expressed
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agreement. The circuit court explained that Hayes deserved mitigation,3 but
acknowledged that murder with a knife is intentional, deeply personal, and
violent. The judge described the murder as one of the most gruesome things
he had seen and expressed confidence that a jury would have strongly
considered the death penalty. That being so, the circuit court concluded the
only mitigation that made sense was the reduction of Hayes’ sentence from the
maximum allowed sentence, death, to life without possibility of parole. The
circuit court stated it recognized Hayes’ respectful, post-offense behavior and
his owning up to his actions, and that his mitigation is a chance to continue to
live. The circuit court also decided the appropriate sentence on the robbery
was twenty years and on the tampering charge was five years, with the
sentences running concurrently for a total sentence of life without the
possibility of parole. The July 30, 2019 Judgment of Conviction and Sentence
reflected that the court imposed the sentences “having given due consideration
to the pre-sentence investigation report, and to the nature and circumstances
of the crime, and to the history, character and condition of the Defendant.”
See KRS 533.010. Hayes then appealed his sentence to this Court.
ANALYSIS
Hayes’ primary issue on appeal is whether the circuit court abused its
discretion when it imposed upon him a sentence of life without the possibility
3 See KRS 532.025(2) (“In all cases of offenses for which the death penalty may
be authorized, the judge shall consider . . . any mitigating circumstances . . .
otherwise authorized by law and any of the . . . mitigating circumstances [listed in
KRS 532.025(2)(a)].”).
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of parole. Hayes complains the trial court said nothing about the impact of his
marijuana abuse at age thirteen and drinking alcohol at age eighteen and did
not weigh the impact on his life of the deaths of his fiancée and child. He
argues that the trial court’s consideration of mitigation was so abbreviated that
it equates to a refusal to consider mitigation, violating Lockett v. Ohio, 438 U.S.
586, 605 (1978) (holding death penalty cases require individualized
consideration of mitigating factors). The Commonwealth argues that this Court
should not reach the merits of this appeal due to Hayes’ express waiver of his
right to appeal.4 Alternatively, the Commonwealth asserts that Hayes’
argument is without merit and his sentence should be affirmed. We agree with
the Commonwealth that Hayes’ complaint about receiving a statutorily allowed
sentence following his open plea is not an issue which may be appealed, but
even if it were appealable, the trial court did not abuse its discretion when
sentencing Hayes to life without parole.
Contemporaneously with accepting the plea offer, Hayes moved to enter a
guilty plea, stating his understanding that by pleading guilty, he waived his
right to appeal his case to a higher court. Hayes now cites Hughes v.
Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994), for the premise that his
sentencing issue may be considered on appeal because “all defendants have
4 Issues which survive an express waiver of the right to appeal include
“competency to plead guilty; whether the plea complied with the requirements of
Boykin v. Alabama, 395 U.S. 238, 244, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969);
subject matter jurisdiction and failure to charge a public offense; and sentencing
issues.” Grigsby v. Commonwealth, 302 S.W.3d 52, 54 (Ky. 2010) (citing Windsor, 250
S.W.3d at 307).
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the right to be sentenced after due consideration of all applicable law.”5 We
agree with the Commonwealth that Hughes and the authority upon which it
relies do not apply in this case. We disagree with Hayes that Webster v.
Commonwealth, 438 S.W.3d 321, 326-27 (Ky. 2014), supports his appellate
claim as preserved.
In Hughes, the defendant raised the issue whether the trial court
properly considered all applicable sentencing options before imposing a twenty-
year sentence for the crimes of criminal attempt to commit murder and robbery
in the first degree following his unconditional guilty plea. 875 S.W.2d 99.
Citing Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985), Hughes
found the defendant’s sentencing issue to be preserved, describing sentencing
as “jurisdictional.” 875 S.W.2d at 100.6 With the phrase “sentencing is
jurisdictional” being somewhat obscure, we have since explained that it is a
reference to the appellate court’s inherent jurisdiction to correct an illegal
sentence. See Jones v. Commonwealth, 382 S.W.3d 22, 26-27 (Ky. 2011).
5 Hayes cites Howard v. Commonwealth, 496 S.W.3d 471, 475 (Ky. 2016), for
the premise that an appellate court reviews sentencing issues for an abuse of
discretion. Unlike in this case, the Commonwealth did not raise in Howard the issue
that the defendant entered an open, unconditional guilty plea to five counts of first-
degree trafficking in a controlled substance, second offense, and therefore waived his
right to appeal his twenty-year sentence, the maximum sentence. Howard accordingly
reviewed whether the trial court abused its discretion by imposing the statutory
maximum sentence. Id. at 475-76. In short, Howard did not address the threshold
issue of appealability.
6 Wellman, an appeal following a jury trial, appears to be the genesis of the
“sentencing is jurisdictional” concept. 694 S.W.2d at 698. There the trial court
judgment erroneously imposed separate life sentences for the murder and the
persistent felony offender count as opposed to a single life sentence as required by
KRS 532.080(1).
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Accordingly, a “sentencing issue” which may be appealed is a claim that a
sentencing decision is contrary to statute, such as when an imposed sentence
is longer than allowed by statute for the crime, or a claim that the decision was
made without fully considering the statutorily-allowed sentencing options.
Grigsby, 302 S.W.3d at 54.
Citing an example provided in Webster, 438 S.W.3d at 326-27 (relying on
Knox v. Commonwealth, 361 S.W.3d 891, 895-99 (Ky. 2012)), and Hughes, 875
S.W.2d at 100–01), Hayes views his case as falling within the category of cases
in which the trial court’s sentencing decision was made without a full
consideration of statutory sentencing options. He analogizes the “failure to
consider and give effect to the available mitigating evidence” to the failure to
consider various probation options as required in certain situations by KRS
533.010.7 We cannot agree with Hayes’ analogy. When a sentencing court
fails to consider probation, or some other applicable sentencing option provided
7 For example, KRS 533.010 provides in part:
(1) Any person who has been convicted of a crime and who has not been
sentenced to death may be sentenced to probation, probation with an
alternative sentencing plan, or conditional discharge as provided in this
chapter.
(2) Before imposition of a sentence of imprisonment, the court shall
consider probation, probation with an alternative sentencing plan, or
conditional discharge. Unless the defendant is a violent felon as defined
in KRS 439.3401 or a statute prohibits probation, shock probation, or
conditional discharge, after due consideration of the defendant’s risk and
needs assessment, nature and circumstances of the crime, and the
history, character, and condition of the defendant, probation or
conditional discharge shall be granted, unless the court is of the opinion
that imprisonment is necessary for protection of the public [for the
reasons provided within the statute].
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by statute, the defendant has not received the consideration directed by our
legislature for punishment of that defendant’s particular crime or crimes.
However, where a defendant, like Hayes, has been allowed to present evidence
of mitigating circumstances and the trial court has heard (or read) the
evidence, then there is nothing to suggest KRS 532.025(2) has not been
complied with, i.e., that the sentencing court has not considered the mitigating
circumstances. Ultimately the weight to be accorded mitigation is a matter
committed to the sound discretion of the trial judge and that discretionary
assessment is not subject to appeal following entry of an unconditional, open
guilty plea.
In short, a sentencing issue or illegal sentence does not arise when the
trial court, without dispute, acknowledges the sentencing range available, and
then, after hearing the evidence offered in mitigation, imposes upon the
defendant a punishment within that statutory range. Hayes’ claim that the
trial court abused its discretion when it entered a sentence of life without
parole does not survive his waiver of appeal.
Nevertheless, even if the trial court’s sentencing decision were subject to
review, under an abuse of discretion standard, we cannot find that the trial
court erred when sentencing Hayes. An appellate court will not disturb a trial
court’s sentencing determination unless it is convinced that the trial court’s
decision was “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Howard, 496 S.W.3d at 475 (citing Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999)). The trial court properly followed the sentencing
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procedures, explained its sentencing determination at the end of the penalty
phase, and properly reduced its considerations to writing in its Judgment of
Conviction and Sentence. Although the trial court did not conclude Hayes
deserved the lighter sentences he requested, the court also clearly did not
abuse its discretion by imposing the life without parole sentence upon Hayes
given the totality of factors to be considered, including as referenced in the
Judgment “the history, character and condition of the Defendant” and “the
nature and circumstances of the crime.”
Lastly, Hayes presents the unpreserved argument that this Court should
overrule Bowling v. Commonwealth, 942 S.W.2d 293, 306 (Ky. 1997) (overruled
on other grounds by McQueen v. Commonwealth, 339 S.W.3d 441 (Ky. 2011)),8
and require trial courts to make specific findings of mitigating factors. Hayes
cites Proffitt v. Florida, 428 U.S. 242, 251 (1976), for the premise that written
findings are essential to meaningful appellate review. In St. Clair v.
Commonwealth, 451 S.W.3d 597, 647 (Ky. 2014), this Court considered
Proffitt’s influence as to whether written mitigation findings should be required.
Addressing St. Clair’s unpreserved argument, we explained that Proffitt does
not require written mitigation findings and that opinion, being a plurality of
only three justices, “at most stands for the proposition that a system
8 Authority preceding Bowling includes Sanders v. Commonwealth, 801 S.W.2d
665, 681 (Ky. 1990) (citing Smith v. Commonwealth, 734 S.W.2d 437 (Ky. 1987), and
Gregg v. Georgia, 428 U.S. 153, (1976)), which explains that “[s]pecific findings as to
mitigating circumstances are not required by law or constitution.”
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incorporating written mitigation findings, among other things, satisfies the
Constitution” and that “[s]uch findings are a sufficient condition for
constitutionality, not a necessary one.” Finding no compelling reason to
overrule Bowling, we decline Hayes’ invitation. See St. Clair, 451 S.W.3d at 647
(explaining that courts have repeatedly rejected the argument that reversible
error occurs when the jury instructions fail to require written findings as to
mitigation).
CONCLUSION
For the foregoing reasons, the Jefferson Circuit Court’s judgment is
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Julia Karol Pearson
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Thomas Allen Van De Rostyne
Assistant Attorney General
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