Boone v. Commonwealth , 780 S.W.2d 615 ( 1989 )

GANT, Justice.

In July, 1987, appellant was indicted on two counts of first-degree sodomy, one count of first-degree sexual abuse, and one count of first-degree rape. The victim herein was an eight-year-old girl with whom appellant and his wife had been retained to babysit. The rape charge was subsequently dismissed, and appellant was found guilty by the jury of the two counts of sodomy and the one count of sexual abuse. The jury recommended a 20-year sentence on each of the sodomy charges, to be served consecutively, and one year on the sexual abuse charge, to be served concurrently, for a total of 40 years. The trial court followed the jury’s recommendation.

The sole issue on this appeal is the sentencing procedure prescribed by KRS 532.-055, which procedure was followed by the circuit court. Prior to the penalty phase, and after a finding of guilt as above set out, the Commonwealth notified the court and appellant that it would not offer evidence of minimum parole eligibility as provided by KRS 532.055(2)(a)l, whereupon appellant moved that he be permitted to introduce this evidence. Under KRS 439.3401, appellant would be considered a violent offender and thus required to serve a minimum of 50% of his sentence. This motion was denied.

On appeal, appellant argues that refusal to permit him to introduce this evidence of minimum parole eligibility and to place the sole control of said evidence in the Commonwealth is a denial of due process under the 6th and 14th Amendments of the Constitution of the United States and § 11 of the Kentucky Constitution.

As we have pointed out in previous opinions, Kentucky is one of the few states which provides for jury sentencing. Much of the trouble which arises in the sentencing procedure would be eliminated by judicial sentencing. However, as we pointed out in Commonwealth v. Reneer, Ky., 734 S.W.2d 794, 797 (1987):

One of the chief deficiencies in our present procedure is that, after reaching a verdict of guilt, the jury is required to sentence in a vacuum without any knowledge of the defendant’s past criminal record or other matters that might be pertinent to consider in the assessment of an appropriate penalty. On balance, the inconvenience of a bifurcated trial is a small price to pay for a better informed sentencing process.

Thus, we have endorsed the concept of an enlightened jury in its consideration and assessment of an appropriate penalty. However, we agree with the appellant that to place this phase of the enlightenment solely in the hands of the prosecutor is a denial of due process to the appellant or any other defendant. If “Truth-in-Sentencing” is the objective sought by KRS 532.055, then either the defendant or the Commonwealth should be permitted to introduce evidence of minimum parole eligibility, and we so hold.

It is our opinion that that portion of KRS 532.055(2)(a)l giving the sole power to introduce evidence of minimum parole eligibility to the Commonwealth is unconstitutional, and the privilege of introducing said evidence shall be extended to the defendant and the Commonwealth.

The conviction herein is affirmed; the sentence is vacated, and this case is remanded to the McCracken Circuit Court for resentencing under the procedures outlined herein.

STEPHENS, C.J., and COMBS, YANCE and WINTERSHEIMER, JJ., concur. LAMBERT, J., concurs in result only. LEIBSON, J., dissents and files a separate dissenting opinion.