         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                        RENDERED: MAY 5, 2016
                                                         NOT TO BE PUBLISHED

                $uprrmr Caurf n Tfirttfrg
                               2014-SC-000506-MR


DEDRICK A. JACKSON
                                                     Dar               APPELLANT 4#;D-c-


                 ON APPEAL FROM SHELBY CIRCUIT COURT
V.               HONORABLE CHARLES R. HICKMAN, JUDGE
                          NO. 11-CR-00192-001


COMMONWEALTH OF KENTUCKY                                                APPELLEE


                   MEMORANDUM OPINION OF THE COURT

       AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

      The Appellant, Dedrick Jackson, was convicted of first-degree trafficking

in a controlled substance, second offense, and was sentenced to twenty years

in prison. On appeal, he claims the following: (1) that the trial court erred in

admitting hearsay testimony about anonymous tips to police alleging that

Jackson was dealing drugs out of his apartment; (2) that the admission of

testimony about Kentucky All-Schedule Prescription Electronic Reporting

(KASPER) results was palpable error; and (3) that the trial court's penalty-

phase procedures erroneously required the jury to recommend a sentence on

his trafficking conviction prior to the truth-in-sentencing evidentiary hearing.

We affirm Jackson's conviction but hold that the penalty-phase error requires

reversal of Jackson's sentence and remand for a new sentencing hearing.
                                   I. Background

      In 2011, police received several anonymous tips that Dedrick Jackson

and his girlfriend, Anna Roberts, were selling drugs out of their apartment.

They set up surveillance of the apartment, during which officers observed

activity that, in their experience, was characteristic of drug trafficking,

including heavy visitor traffic to the apartment, brief visits, and suspicious

interactions between Jackson and visitors outside the apartment.

      Based on the information provided by the anonymous tipsters and the

officers' own observations, police obtained a warrant to search the apartment.

Police executed the warrant and found almost 20 grams of cocaine, two

hydrocodone pills, and about $2,000 in cash. Jackson made statements to

police during the search admitting that the contraband was his. Police

apparently found no evidence of personal drug use by the couple.

      Jackson was arrested and later interviewed by police. During his

interview, he admitted to having had a bag containing ten grams of cocaine on

his person and about one gram of cocaine in his bedroom at the time of the

search. (The lab technician who tested the evidence testified that the bag found

on his person actually contained 17.13 grams of cocaine while the bag found in

the bedroom contained 1.68 grams of cocaine.) He admitted that the drugs and

money were his and that he had sold cocaine, purportedly outside the

apartment only, not inside it. He denied any involvement by Roberts in his

drug-dealing. The recorded interview was played at trial.

      Jackson was charged with first-degree trafficking in a controlled

substance (cocaine) and second-degree possession of a controlled substance
                                      2
(hyrdocodone). 1 He was also charged with being a second-degree persistent

felony offender (PFO). In the guilt phase of his trial, he was convicted of

trafficking but acquitted of the remaining possession charge. The trial court

then held a bifurcated penalty phase.

       In the first part of the penalty phase, the Commonwealth presented

evidence that Jackson had a prior trafficking conviction, and the jury

instructions required the jury to find whether the subsequent-offender

enhancement should apply to the conviction and to recommend a sentence in

the applicable range. See KRS 218A.1412(3)(a) (providing first-degree

trafficking in a controlled substance is a Class C felony for the first offense but

a Class B felony for any second or subsequent offense). The jury found that the

subsequent-offense enhancement should apply and recommended the

statutory maximum sentence of twenty years. See KRS 532.060(2)(b).

       In the second part of the penalty phase, evidence was introduced of a

separate prior conviction (possession of stolen goods) to support the PFO

charge. Also during this phase, the Commonwealth put on evidence relating to

parole eligibility and other truth-in-sentencing matters. And Jackson

introduced mitigating evidence in support of leniency—namely, his own

testimony—as permitted by the truth-In-sentencing statute. Following this

hearing, the jury found Jackson guilty of being a second-degree PFO but did

not change its recommendation for a twenty-year sentence, which is the


        Jackson was also initially charged with third-degree possession of a controlled
substance related to alprazolam (i.e., Xanax) pills that were apparently found in
Roberts's purse during the search. The charge was dismissed before trial on the
Commonwealth's motion.
                                           3
statutory minimum under the enhanced PFO range. See KRS 532.080(5);

KRS 532.060(2)(a).

      Before final sentencing, Jackson retained new counsel, who moved for

dismissal of the PFO conviction because KRS 532.080(10) precludes PFO

enhancement for convictions where the penalty classification was increased

because the conviction was a second or subsequent offense. The trial court

granted the motion and dismissed the PFO charge. Jackson also asked the

court to exercise its discretion under KRS 532.070 to impose a lesser sentence

than recommended by the jury; this the court denied. Accordingly, the court

entered a final judgment convicting Jackson of first-degree trafficking in a

controlled substance, second offense, and sentencing him to twenty years'

imprisonment.

      He now appeals to this Court as a matter of right. See Ky. Const. §

110(2)(b). Additional facts will be developed as needed in the discussion below.

                                II. Analysis
   A. The officers' hearsay testimony about statements made by
      anonymous tipsters was not reversible error.

      Jackson claims error in the admission of testimony from police officers

about the substance of anonymous tips they received alleging drug-trafficking

activity at Jackson's apartment. He argues that the testimony was inadmissible

hearsay and that its admission requires reversal.

      "Hearsay" is any out-of-court statement "offered in evidence to prove the

truth of the matter asserted." KRE 801(c). It is inadmissible unless it falls




                                         4
under a recognized exception to the rule, see KRE 801A-804, none of which are

applicable here.

       The true issue here is whether the testimony was in fact hearsay. That is,

the Commonwealth responds that the testimony was properly admitted, not to

prove the truth of the matters asserted by the out-of-court tipsters—namely,

that Jackson was dealing drugs out of his apartment—but to explain the

actions the police took based on those statements; i.e., why they investigated

Jackson in the first place. See Sanborn v. Commonwealth, 754 S.W.2d 534, 541

(Ky. 1988) ("The rule is that a police officer may testify about information

furnished to him only where it tends to explain the action that was taken by
                                                                        ,




the police officer as a result of this information and the taking of that action is

an issue in the case. Such information is then admissible, not to prove the

facts told to the police officer, but only to prove why the police officer then

acted as he did. It is admissible only if there is an issue about the police

officer's action.")

       In support of its argument, the Commonwealth cites Kerr v.

Commonwealth for the general proposition that "testimony explaining why a

defendant had become a suspect in a drug investigation is relevant to avoid any

implication that the defendant was unfairly singled out in the drug sting

operation and to explain why the defendant was targeted." 400 S.W.3d 250,

256-57 (Ky. 2013). In doing so, however, the Commonwealth ignored that the

Court in Kerr expressly qualified that statement by adding: "It should be

sufficient for an officer to testify that he 'acted "upon information received" or

words to that effect."' Id. at 257 (quoting Gordon v. Commonwealth, 916 S.W.2d
                                          5
176, 178 (Ky. 1995)). The Court further explained that there is "no legitimate

need to say or imply that [the defendant] was a drug dealer or that he was

suspected by the police department of selling drugs in a particular vicinity." Id.

(quoting Gordon, 916 S.W.2d at 179). Such testimony, the Court made clear,

"crosse[s] the line into inadmissible hearsay." Id. The same can be said about

the testimony at issue here.

      As in Kerr, we reject the Commonwealth's attempt to rebrand this

testimony as non-hearsay offered to explain the officers' motivations in

investigating and ultimately arresting Jackson. "The hearsay purposes of the

anonymous tip evidence cannot be separated from its non-hearsay purposes."

Id. at 258. This is particularly problematic where, as here, "[t]he anonymous tip

reflect[s] directly on [the defendant's] guilt of the charged offense." Id.; see also,

e.g., Hughes v. Commonwealth, 730 S.W.2d 934, 935 (Ky. 1987) (holding

admission of hearsay testimony about anonymous tip reversible error because

it reflected on the defendant's guilt).

      And in any event, we have difficulty surmising how the officers' reasons

for investigating and then arresting Jackson were relevant at all. The

Commonwealth does not contend that the statements to police were needed to

rebut an explicit charge by Jackson at trial that the officers fabricated their

testimony. Cf. Chestnut v. Commonwealth, 250 S.W.3d 288, 294 (Ky. 2011)

(holding testimony about statements to police admissible for non-hearsay

purpose of proving officers' motive for arresting defendant, which was made an

issue in part because defendant accused officer of lying during testimony). Yet

to the extent that they may have had some relevance "to avoid any implication
                                       6
that the defendant was unfairly singled out in the drug sting operation and to

explain why the defendant was targeted," Peyton v. Commonwealth, 253 S.W.3d

504, 516 (Ky. 2008), as the Commonwealth contends, we reiterate that

testimony to the effect that the officer "acted upon information received" would

have sufficed as the preferable, and much more prudent, means to that end. As

we emphasized in Gordon, "[t]he need for the evidence is slight, the likelihood of

misuse great." 916 S.W.2d at 179 (quoting Robert G. Lawson, The Kentucky

Evidence Law Handbook § 8.05 (3d ed. 1993)).

      In sum, there was simply no legitimate or justifiable need to tell the jury

that police suspected Jackson of being a drug dealer or that the police

suspected that drugs were being sold out of Jackson's apartment based on

anonymous tips. This was inadmissible hearsay.

      However, whether its erroneous admission requires reversal is a different

question. To that end, the parties dispute whether this claim was adequately

objected to in the trial court below. But whether this error was properly

preserved matters little because we easily conclude that it was harmless and

also undoubtedly falls far short of rising to the level of palpable error.

      As the Commonwealth points out, whether Jackson was dealing drugs

out of his apartment was not a contested issue at trial because he admitted as

much to police at the scene and later in making his recorded statement after

his arrest. Consequently, even if we assume the error was preserved, we are

confident that the jury's verdict was not "substantially swayed" by the improper

testimony, and thus it was harmless. Winstead v. Commonwealth, 283 S.W.3d

678, 689 (Ky. 2009). And, if it is unpreserved and subject only to palpable-error
                                         7
review under Criminal Rule 10.26, Jackson has not made the required showing

of "probability of a different result or error so fundamental as to threaten [his]

entitlement to due process of law" to demonstrate manifest injustice requiring

reversal. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).

   B. Officer's testimony about contents of KASPER report was not
      palpable error.

       Jackson's next claim of error involves testimony by a police officer about

the contents of Jackson's and his girlfriend's Kentucky All-Schedule

Prescription Electronic Reporting (KASPER) reports. At trial, Detective Brent

Bridgeman testified that, in the course of his investigation, he obtained and

reviewed both KASPER reports. According to the detective, those reports

showed that neither Jackson nor his girlfriend had filled any prescriptions for

hydrocodone from January 1, 2011, through September 28, 2011, the date the

search warrant was issued. Jackson admits that this claim of error is

unpreserved and asks this Court to review for palpable error.

       Jackson claims that this testimony was inadmissible hearsay, violated

his Sixth Amendment confrontation rights, and violated the disclosure

restrictions on KASPER reports provided in KRS 218A.202. 2 While we agree



       2 KRS 218A.202(6) prohibits the Cabinet for Health and Human Services from

disclosing KASPER data and reports to any persons or entities not specifically
authorized to receive that data under the statute. Subsections (6)(a) through (j) list
those persons and entities to whom disclosure by the Cabinet is authorized; for
example, subsection (6)(b) authorizes disclosure to Commonwealth Attorneys and law
enforcement officers, among others, who are "engaged in a bona fide spebific
investigation involving a designated person."
       KRS 218A.202(8) prohibits recipients of KASPER data and reports from
disclosing that information to other persons or entities except as expressly allowed by
statute or by court order and then only to those who are themselves also authorized to
receive the data. Subsections (8) (a) through (e) provide the express authorizations for
                                             8
that the admission of this testimony was error, we need not overly analyze the

substance of this claim because, as Jackson acknowledges, it is unpreserved

and he has not demonstrated that it was palpable error.

       It is clear that the improper testimony had little to no prejudicial effect.

The detective's testimony was introduced to prove that the possession of the

hydrocodone pills found in the apartment was unlawful because, according to

the KASPER data, neither Jackson nor Roberts had been lawfully prescribed

the drug in the ten or so months before law enforcement's search of the

apartment. But for whatever reason, the jury acquitted Jackson of the

possession charge. Even with the tainted evidence, then, the jury reached a

result favorable to Jackson on the charge to which the evidence was directed.

And Jackson has not demonstrated how the limited evidence about his

KASPER data may have been prejudicial with respect to his trafficking

conviction; nor can we conceive of any way that it would have been.

      The admission of the KASPER testimony simply did not result in

manifest injustice to warrant reversal for palpable error under Criminal

Rule 10.26. That said, we caution the Commonwealth against introducing

KASPER-related testimony in the future. Not only is it hearsay which

implicates defendants' confrontation rights, but intentional unauthorized

disclosures of this data violate the non-disclosure provisions of KRS 218A.202


sharing of data; for example, subsection (8)(a) authorizes persons specified under
KRS 218A.202(6)(b) to share the data with other persons authorized under that
subsection.
        KRS 218A.202(12) makes intentional disclosure of transmitted KASPER data to
persons not authorized by statute to receive the data a Class B misdemeanor for the
first offense and a Class A misdemeanor for any subsequent offense.
                                           9
and are subject to criminal penalties. And in a future case where the

taintlessness of the error is less clear, we may be more inclined to find an

improper admission of KASPER evidence to be reversible error.

   C. The penalty-phase procedures resulted in palpable error.

         Lastly, Jackson claims entitlement to a new penalty phase, arguing that

the procedures employed by the trial court denied him an opportunity to

introduce mitigating evidence and plead for leniency before the jury made its

sentencing recommendation, as is his prerogative under our state's truth-in-

sentencing regime. See KRS 532.055(2)(b).

         To resolve this claim, we begin by examining what happened in the trial

below.

         During a private in-chambers conference on the morning of the first day

of the trial, among other things, the parties and the trial judge discussed how

the "enhancement issues"—including the subsequent-offender and PFO penalty

enhancements—would affect the make-up of the guilt and penalty phases of

the trial. Though defense counsel kicked off this discussion by moving for

"trifurcation" of the trial, the trial court interrupted before counsel could

explain his request further, stating that "it had to be" trifurcated and correctly

noting that there could be no mention that Jackson was a subsequent offender

during the guilt phase of the trial. The court directed that if the jury found him

guilty of trafficking, then the trial would proceed to a second stage to consider

the subsequent-offender enhancement, which would be followed by a final PFO

phase. The trial court specifically ruled that none of the PFO information would

come in during the second stage; instead, the court explained, the
                                         10
Commonwealth's proof of the prior trafficking conviction would be the only

evidence to come in during the subsequent-offense phase. There were no

objections raised to these procedures.

       On the morning of the second day of trial, the parties again met with the

judge in chambers to discuss the jury instructions and clarify the penalty-

phase procedures. When the Commonwealth noted that the judge's penalty-

phase instructions did not include a PFO instruction, the judge explained that

he had prepared two drafts depending on the outcome of the guilt phase. 3

                                                                                   (Guilt-phaseclosingargumentsandjurydeliberationswer scheduledfortha

morning.)

       The judge and parties then discussed that only the prior trafficking

conviction could be submitted for the subsequent-offender enhancement, while

only a prior conviction of receiving stolen property would be used for the PFO

enhancement because that was what was listed in the indictment. And the

Commonwealth added that it would then be able to introduce the remainder of

Jackson's prior convictions in "final sentencing." Defense counsel also notified

the others that he planned on putting on (truth-in-sentencing) testimony in the


        3 Although it is not entirely clear, it appears that this was based on a mistaken
belief that a misdemeanor conviction was still possible at that time. This seems to be
the case because the judge went on to explain that if the jury found Jackson guilty "on
the misdemeanor," then they would need to get the sentencing on that conviction out
of the way before moving on to sentencing on the trafficking conviction and PFO
charge (presumably because the PFO statute does not apply to misdemeanor offenses).
But at that time, there remained no possibility of Jackson being convicted of a
misdemeanor offense; all that remained were the felony charges of first-degree
trafficking of cocaine and first-degree possession of hydrocodone. See
KRS 218A.1412(3); KRS 218A.1415(2). The only misdemeanor offense charged under
the indictment, third-degree trafficking in a controlled substance (alprazolarn), see
KRS 218A.1417(2); had already been dismissed on the Commonwealth's motion as
noted above.
                                           11
final sentencing phase. And the Commonwealth similarly reiterated that, "at

final sentencing," it planned on recalling the witness through which it would

put on proof of Jackson's entire criminal history and would also call "someone

from probation and parole to talk about truth-in-sentencing issues." Again, no

objections were raised.

      After the jury convicted Jackson of trafficking but acquitted him of the

possession charge, the parties and trial court reconvened to confirm that the

subsequent-offense instructions were correct; there were no objections. During

this conference, the trial court also explained how the subsequent-offense

phase was going to work. After allowing the jury to break for lunch, the court

explained, the Commonwealth would put on its evidence of the prior trafficking

offense, then the court would read the instructions and both sides would be

permitted to make statements before the jury was released to deliberate "for

purposes of this penalty phase."

      And that is what occurred. The Commonwealth put on proof of Jackson's

prior trafficking conviction, argued that the proof spoke for itself, and asked

the jurors to convict him of the second-offense enhancement. The defense

declined to put on proof or make any statements at that time.

      The instructions for this first part of the penalty phase required the jury

to find whether Jackson had previously been convicted of first-degree

trafficking and thus was guilty of being a subsequent offender. If the jury found

him not guilty of being a subsequent offender, the instructions directed them to

recommend a sentence on the basic trafficking offense (five to ten years); if the

jury found him guilty of being a subsequent offender, they were directed to fix
                                       12
punishment within the subsequent-offender enhanced range of ten to twenty

years in lieu of the basic range. Having so found him guilty, the jury

recommended twenty years.

      The trial court then held the final part of the sentencing phase. In this

phase, the Commonwealth put on proof of the prior receiving-stolen-property

conviction on which the PFO charge was based and also called a witness to

testify about probation and parole matters. (The trial court did not allow the

Commonwealth to put on proof of Jackson's entire criminal history, however,

because the indictment only listed the one conviction for PFO enhancement. 4)

Jackson also put on his mitigating evidence during this phase, pleading with

the jury for leniency in sentencing him. After this final phase, the jury found

him guilty of being a second-degree PFO, but it recommended only the

minimum sentence of twenty years out of a possible fifty years under the PFO-

enhanced range.




      4  We note that it was also error for the trial court to prohibit the Commonwealth
from introducing evidence of Jackson's entire criminal history during the sentencing
hearing. The truth-in-sentencing statute authorizes the Commonwealth to put on
certain proof during the sentencing hearing, including "[t]he nature of prior offenses
for which [the defendant] was convicted." KRS 532.055(2)(a)2. While the court was
correct that the Commonwealth can only prove a PFO charge with proof consistent
with the indictment, that does not mean that proof of other convictions is inadmissible
at sentencing when a jury must also determine PFO status. Instead, it suffices that
the instructions adequately direct the jury what prior conviction it must find in order
to convict on the PFO charge. The other prior convictions are admissible for the jury to
consider in fixing the sentence within the applicable range.
       We further note that not only is there no need to bifurcate such a sentencing
hearing—that is, to allow the jury to determine guilt or innocence on the PFO charge
before it considers evidence of other prior convictions in a truth-in-sentencing phase—
the statute in fact precludes such a procedure. See KRS 532.055(3) ("All hearings held
pursuant to this section shall be combined with any hearing provided for by
KRS 532.080 [the truth-in-sentencing statute].").
                                           13
      But before final sentencing by the trial court, Jackson apparently

obtained new counsel, who moved for dismissal of the PFO conviction, arguing

that KRS 352.080(10) bars PFO enhancement of convictions—such as

Jackson's first-degree trafficking, second offense—where the available penalty

range was increased as a result of it being a subsequent offense. Jackson's

argument was correct because KRS 532.080(10)(a) bars PFO enhancement of

an offense "if the penalty for that offense was increased ... from a lower felony

classification to a higher felony classification, because the conviction

constituted a second or subsequent violation of that offense." 5 Thus, the court

granted the dismissal but still sentenced Jackson to twenty years in prison as

the jury had recommended for the subsequent-offender enhanced conviction,

declining to exercise its discretion under KRS 532.070 to impose a lesser

sentence of ten years as requested by Jackson's new counsel on the motion to

dismiss. Although Jackson had asked the trial court to reduce his sentence, he

did not at that time ask for a new sentencing hearing.

      Jackson now contends that he is entitled to a new penalty phase to allow

the jury to hear his mitigation evidence before recommending a sentence within

the subsequent-offender enhanced range of ten to twenty years' imprisonment.

Acknowledging that this claim of error is also unpreserved, he again requests

that we review for palpable error under Criminal Rule 10.26.

      First, the Commonwealth responds by arguing that there is no error to

review. According to the Commonwealth, because Jackson's post-trial motion



      5   The statute goes on to list exceptions not applicable here.
                                             14
asked only that the PFO conviction be dismissed and did not otherwise request

any additional curative measures be taken (such as a new penalty phase), the

trial court's granting of that request left no error to be reviewed. The

Commonwealth contends that "[b]y asking for certain relief ..., being granted

that relief, and asking for no other relief, Jackson signaled his satisfaction with

the trial judge's action ... [, and] he cannot now ask for additional relief."

      The problem with this position is that the trial court did not grant all of

Jackson's requested relief; it denied his request to impose a sentence of ten

years rather than the twenty years recommended by the jury. So contrary to

the Commonwealth's contention, Jackson did not exhibit satisfaction with the

trial court's actions. Cf. Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky.

2003) ("Appellant received all the relief he requested (That would be fine. That's

what I want.'); thus, there is no error to review."). The fact that he did not also

request a new penalty phase at that time does not mean that he was satisfied

with the relief he did receive.

      Second, the Commonwealth responds to Jackson's request for palpable-

error review by arguing that he, in fact, was not prevented from putting on

truth-in-sentencing evidence during the subsequent-offender phase. Instead,

because he expressly declined to put on evidence in this phase when given an

opportunity to do so, the Commonwealth contends that Jackson waived any

objection to the procedures employed below.

      Rather than waive the issue, however, our review of the record

demonstrates that Jackson's counsel at trial had merely operated under the

mistaken belief that the process proposed by the trial court—namely, a
                                       15
bifurcated penalty proceeding, with only evidence of the prior trafficking

conviction to be considered during the first part of the penalty phase—was

appropriate. It is clear that both parties and the trial court below believed that

no additional evidence would be admissible during that phase of the trial. This

was driven, no doubt, by the trial court's erroneous decision to allow a PFO

enhancement and to bifurcate the penalty phase as a result. So the failure to

introduce mitigating evidence before the jury recommended a sentence under

the enhanced penalty range for being a subsequent offender, based on a

misunderstanding of the legal rights involved, was manifestly a failure to

recognize and assert that right (or to object to the process preventing him from

exercising that right), rather than an intentional waiver of a recognized right. 6

                                                                                        Thus,weiltracmofsunprevdabjctolpe-

error review, rather than waived and not subject to review.

       We therefore turn to review Jackson's substantive claim of palpable

error. Accordingly, we will reverse only if convinced the error left uncorrected

would result in "manifest injustice." RCr 10.26. "[T]he required showing is

probability of a different result or error so fundamental as to threaten a

defendant's entitlement to due process of law." Martin v. Commonwealth, 207




        6 As federal courts have recognized, "[t]o distinguish between forfeiture [where
plain- (or palpable-) error review is available] and waiver [where errors are not subject
to review], we examine a party's state of mind at the time that an objection could have
been raised." United States v. Anderson, 604 F.3d 997, 1001 (7th Cir. 2010).
"Forfeiture takes place when counsel or a defendant negligently bypasses a valid
argument." Id. On the other hand, "waiver requires a calculated choice to stay silent
on a particular matter." Id. (citing United States v. Olano, 507 U.S. 725, 733 (1993)
("[W]aiver is the 'intentional relinquishment or abandonment of a known right.")
(citations omitted)).
                                            16
S.W.3d 1, 3 (Ky. 2006). And Itio discover manifest injustice, a reviewing court

must plumb the depths of the proceeding ... to determine whether the defect in

the proceeding was shocking or jurisprudentially intolerable." Id. at 4.

      Jackson is correct that under the truth-in-sentencing statute, he was

entitled to "introduce evidence in mitigation or in support of leniency" during a

sentencing hearing before the jury. KRS 532.055(2)(b). And he was entitled to

have the jury consider that evidence before being instructed on the applicable

punishment range and recommending a sentence within that range.

KRS 532.055(2)(c). This included the initial decision imposing a sentence on

the trafficking offense in the first part of the penalty phase.

      As such, the penalty-phase procedures employed here were clearly

erroneous. They required the jury to recommend a sentence within the

subsequent-offender enhanced range before the truth-in-sentencing hearing

was held, in violation of the statute. And that error was not cured by the trial

court's holding the hearing during the second (PFO) sentencing phase in which

the jury made its final recommendation on Jackson's sentence because a

sentence had already been recommended on the trafficking conviction. By

delaying the truth-in-sentencing evidence until the (improper) PFO phase, the

trial court effectively barred the jury from considering evidence that it was

required to consider in reaching its recommendation on Jackson's sentence for

trafficking. And thus, after the PFO count was properly dismissed, the court

was left with the twenty-year recommendation, which was necessarily tainted

because the jury arrived at it without the benefit of the truth-in-sentencing

information called for by the statute.
                                         17
      Jackson's sentence was thus the product of a sentencing process that

wholly contravened the purposes and requirements of KRS 532.055. See

Furnish v. Commonwealth, 267 S.W.3d 656, 661 (Ky. 2007) ("[T]he Kentucky

truth-in-sentencing statute is designed to provide the jury with information

relevant to arriving at an appropriate sentence for a particular offense."). We

are constrained to conclude, then, that this error rises to the level of palpable

error. The palpable error is that Jackson has been ordered to serve a sentence

that the jury recommended without having heard any of the truth-in-

sentencing evidence they were supposed to have heard to allow them to make

an informed sentencing decision. Allowing the jury to recommend a sentence

without holding the truth-in-sentencing hearing, we believe, was a

fundamental, jurisprudentially intolerable error that threatened the essential

fairness of the penalty phase of the trial and thus resulted in manifest

injustice.

      Consequently, we reverse Jackson's sentence and remand this matter to

the trial court for a new sentencing hearing in compliance with KRS 532.055.

Because the truth-in-sentencing statute applies only after the return of a guilty

verdict, our holding has no effect on the jury's verdict finding the trafficking

conviction to be subject to the subsequent-offense enhancement.

                                  III. Conclusion

      For the reasons set forth above, Jackson's conviction for first-degree

trafficking in a controlled substance, second offense, is affirmed. His sentence

of twenty years in prison is reversed and the matter is remanded to the Shelby

Circuit Court for a new sentencing hearing consistent with this opinion.
                                      18
      All sitting. All concur.



COUNSEL FOR APPELLANT:

Michael L. Goodwin
600 West Main Street
Suite 100
Louisville, Kentucky 40202


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General

Jeffrey Allan Cross
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, Kentucky 40601




                                 19
