Opinion
NO. 2012-CA-000304-MR
06-21-2013
MICHAEL R. HOWARD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jerry W. Gilbert Richmond, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM G. CLOUSE, JR., JUDGE
ACTION NO. 10-CR-00258
OPINION
AFFIRMING
BEFORE: MOORE, NICKELL, AND TAYLOR, JUDGES. MOORE, JUDGE: Michael R. Howard appeals the Madison Circuit Court's judgment convicting him of first-degree sexual abuse and sentencing him to three years of imprisonment. After a careful review of the record, we affirm because Howard qualifies as a "violent felon" and, as such, he is not entitled to probation.
I. FACTUAL AND PROCEDURAL BACKGROUND
Howard was indicted on two charges: (a) in Count One, he was charged with first-degree sexual abuse, victim less than twelve years old, a Class C felony; and (b) in Count Two, he was charged with first-degree sexual abuse, victim less than sixteen years old, a Class D felony. The Commonwealth provided him an Offer on a Plea of Guilty. This offer stated that if Howard entered a guilty plea to Count Two, then Count One would be dismissed. The "Commonwealth's recommendations [were] set forth in the Mediation Agreement signed by the parties and entered in the record on May 11, 2011." Howard moved to enter a guilty plea in accord with the Commonwealth's offer.
A copy of the Mediation Agreement was not included in the record before us.
The circuit court accepted Howard's guilty plea to the charge of first-degree sexual abuse, a Class D felony. The court's judgment stated that the Commonwealth had recommended sentencing Howard to three years of imprisonment. The court sentenced Howard in accord with that recommendation, i.e., to three years of imprisonment. The circuit court also ordered Howard to, inter alia, attend Sex Offender Classes and register as a convicted sex offender for a period of twenty years. The court found that Howard was a "violent offender," pursuant to Chapter 439 and Chapter 532 of Kentucky Revised Statutes (KRS). Howard now appeals, contending that the trial court erred in not considering probation or conditional discharge as a sentencing option.
Howard does not dispute the circuit court's finding that the Commonwealth had recommended a three-year sentence although the Mediation Agreement is not included in the record on appeal.
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II. STANDARD OF REVIEW
We review a trial court's decision on whether to probate a defendant for an abuse of discretion. See Arnett v. Commonwealth, 366 S.W.3d 486, 489 (Ky. App. 2011). "A trial court abuses its discretion when it renders a decision which is arbitrary, unreasonable, unfair, or unsupported by legal principles." Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004).
III. ANALYSIS
Howard contends that the trial court erred in not considering probation or conditional discharge as a sentencing option. Howard asserts that he is eligible for probation under the rules of statutory construction and that the General Assembly intended for those convicted of first-degree sexual abuse to be eligible for probation.
We first note that Howard received the benefit of the bargain he made in entering his guilty plea: He agreed to plead guilty if the Commonwealth recommended a sentence of three years of imprisonment and dismissed Count One of the indictment against him. The Commonwealth did both of these things, and the court ultimately sentenced Howard in accord with the plea agreement. Although "there generally is no right to a direct appeal from a plea of guilty[, . . .] a defendant may by direct appeal challenge the legality of a sentence imposed pursuant to a guilty plea because sentencing issues are considered 'jurisdictional' and cannot be waived." Elmore v. Commonwealth, 236 S.W.3d 623, 626 (Ky. App. 2007) (citations omitted). However, a plea agreement is a binding contract between the Commonwealth and the defendant. See Elmore, 236 S.W.3d at 626. "The parties to a plea agreement are entitled to the benefit of their bargain." Commonwealth v. Reed, 374 S.W.3d 298, 301 (Ky. 2012) (citation omitted). In the present case, both parties received the benefit of their bargain: The Commonwealth received a guilty plea from Howard and, in exchange, Howard received a dismissal of Count One of the indictment and a recommended sentence of three years of imprisonment. Because Howard was sentenced in accord with the plea agreement, he cannot now complain of the sentence he received.
Even if we review Howard's claim, it lacks merit. Howard alleges that KRS 532.045 allows for someone convicted of Sexual Abuse in the First Degree to be probated. He asserts that this contradicts KRS 532.047 and KRS 439.3401. Because KRS 532.045 was the most recently enacted statute and it is the most specific statute in describing the inclusion of sexual offenses, Howard argues its provisions control here.
Statutory construction is an issue of law that we review de novo. See Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007).
The primary purpose of judicial construction is to carry out the intent of the legislature. In construing a statute, the courts must consider the intended purpose of the statute--the reason and spirit of the statute--and the mischief intended to be remedied. The courts should reject a construction that is unreasonable and absurd, in preference for one that is reasonable, rational, sensible and intelligent.Commonwealth v. Kash, 967 S.W.2d 37, 43-44 (Ky. App. 1997) (internal quotation marks and citations omitted). In construing a statute, a court should "use the plain meaning of the words used in the statute." Monumental Life Insurance Company v. Department of Revenue, 294 S.W.3d 10, 19 (Ky. App. 2008).
Kentucky Revised Statute 532.045(3) provides: "If a person is not otherwise prohibited from obtaining probation or conditional discharge under subsection (2), the court may impose on the person a period of probation or conditional discharge." In turn, subsection (2) of that statute provides:
Notwithstanding other provisions of applicable law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provision of this section be stricken for a person convicted of violating KRS 510.050, 510.080, 529.040, 529.070, 529.100 where the offense involves commercial sexual activity, 530.020, 531.310, 531.320, or 531.370, or criminal attempt to commit any of these offenses under KRS 506.010, and, who meets one (1) or more ofthe criteria specified in the statute. KRS 532.045(2). Thus, Howard asserts that because Sexual Abuse in the First Degree, which is codified at KRS 510.110, is not listed in KRS 532.045(2) as one of the offenses that is ineligible for probation, reason dictates that he is eligible for probation.
Pursuant to KRS 532.047, "[p]robation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who has been designated as a violent offender as defined in KRS 439.3401, unless such probation is granted in accordance with KRS 439.3401." We note that KRS 439.3401(1) provides, in pertinent part:
As used in this section, "violent offender" means any person who has been convicted of or pled guilty to the commission of:(Emphasis added). The crime of first-degree sexual abuse is codified in Chapter 510, at KRS 510.110. One who is convicted of first-degree sexual abuse qualifies as a "violent offender," pursuant to KRS 439.3401(1)(d). Howard, having been convicted of first-degree sexual abuse, is ineligible for probation pursuant to KRS 532.047 because he is a violent offender.
(a) A capital offense;
(b) A Class A felony;
(c) A Class B felony involving the death of the victim or serious physical injury to a victim;
(d) The commission or attempted commission of a felony sexual offense described in KRS Chapter 510. . . .
Howard argues that KRS 532.045 was specific and it was enacted more recently than KRS 532.047 and KRS 439.3401. We disagree and conclude that KRS 532.047 and KRS 439.3401 are more specific to the crime Howard committed. Kentucky Revised Statute 439.3401 provides that any felony sexual offense listed in Chapter 510, which includes Howard's offense, is a violent offense. Further, KRS 532.047 specifies that those convicted of violent offenses are not eligible for probation. The General Assembly was quite clear and specific in writing the statutes to lead to this conclusion. Howard's arguments to the contrary are not only convoluted but they lead to an absurd result, as noted by the Commonwealth in its brief: The Commonwealth argues that, according to Howard's logic, offenses not listed in KRS 532.045 are probation-eligible. According to Howard's argument, defendants convicted of crimes such as rape in the first degree (KRS 510.040) and sodomy in the first degree (KRS 510.070) are eligible for probation because these offenses are not listed in KRS 532.045--despite the fact that they qualify as violent offenses under KRS 439.3401. Yet, defendants convicted of offenses such as promoting prostitution (KRS 529.040), rape in the second degree (KRS 510.050), and sodomy in the second degree (KRS 510.080), which are some of the enumerated offenses listed in KRS 532.045, are not eligible for probation. This is an absurd result, and we are required to reject the construction of the statute. See Commonwealth v. Kash, 967 S.W.2d 37, 44 (Ky. App. 1997).
Furthermore, another statute, KRS 533.010(2), provides that:
Unless the defendant is a violent felon as defined in KRS 439.3401 or a statute prohibits probation . . . [after considering certain factors about the defendant and the crime], probation or conditional discharge shall be granted, unless the court is of the opinion that imprisonment is necessary for protection of the public. . .Thus, yet another statute specifies that those who are classified as a violent felon under KRS 439.3401 are not eligible for probation. Consequently, Howard's assertions lack merit. The circuit court did not abuse its discretion when it decided not to probate him.
Accordingly, the judgment of the Madison Circuit Court is affirmed.
ALL CONCUR BRIEF FOR APPELLANT: Jerry W. Gilbert
Richmond, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky