TRIAL COURT ERRED BY ALLOWING THE PROSECUTOR TO ASK THE JURY TO RECOMMEND A SENTENCE IN EXCESS OF THE STATUTORY MAXIMUM OF TWENTY YEARS. – NOT HARMLESS ERROR
Appellant next argues that the trial court erred by allowing the prosecutor to ask the jury to recommend a sentence in excess of the statutory maximum of twenty years. The Commonwealth responds that any error relating to the sentencing cap was harmless because the trial court reduced the sentence to comply with the cap. Because this issue is likely to resurface on remand, we find it necessary to address.
KRS 532.055(2) states that a jury is to “determine the punishment to be imposed within the range provided elsewhere by the law.” A jury should thus be instructed about the sentencing cap. Allen v. Commonwealth, 276 S.W.3d 768, 773-774 (Ky. 2008). In Allen, although the trial court knew that the defendant could serve no more than seventy years, no instructions were given to that effect, allowing the jury to “send a message” by recommending a one-hundred-thirty-year sentence. Id. We agreed with the appellant in that case that the recommendation violated the plain language of KRS 532.055(2) and, in light of our decision to reverse on alternative grounds, directed that the trial court instruct the jury in any subsequent proceeding as to the sentencing cap. Id.
In this case, the trial court allowed the prosecutor to describe a twenty-year sentence as the “middle-range” of punishments even though it was the longest term to which Appellant could be sentenced. Defying the explicit limitation of KRS 532.055(2), the jury returned verdicts of eight years enhanced to seventeen for possession of a handgun and five years enhanced to thirteen for possession of a shotgun, to be served consecutively for a total of thirty years. The trial court subsequently reduced Appellant’s time to be served to twenty years.
Failing to instruct the jurors regarding the relevant cap in this case constitutes error. On remand, the trial court should instruct the jury on the statutory twenty-year sentencing limit in any subsequent PFO/Truth in Sentencing proceeding.