DARRELL K. ADAMS v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 14, 2000; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NOS. 1999-CA-001094-MR
AND 1999-CA-001215-MR
DARRELL K. ADAMS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NOS. 97-CR-00782 & 97-CR-00326
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
These are two appeals from two judgments of
conviction wherein the court determined that appellant was
ineligible for probation under KRS 533.060(2) because the
offenses were committed while appellant was on parole from a
prior felony conviction.
Appellant argues that regardless of the
fact that he committed the offenses while on parole from a prior
felony, he was eligible for probation under KRS 532.080(5) and
KRS 533.030(7) because the present offenses were all Class D
nonviolent felonies.
We hold that KRS 532.080(5) and KRS
533.030(7) control over KRS 533.060(2) and, thus, appellant was
eligible for probation as to two of the offenses and the PFO II
conviction.
Hence, we vacate the judgment and remand for re-
sentencing as to those offenses.
As to the DUI 4th conviction,
appellant was eligible for probation as to part of his sentence
under KRS 189A.010(7).
Hence, we likewise vacate the sentence on
the DUI 4th offense and remand for re-sentencing thereon.
It is undisputed that appellant, Darrell Adams, was on
parole from a prior felony conviction when on February 3, 1997,
he committed the offenses of driving under influence, fourth
offense (DUI 4th), and operating a motor vehicle on a suspended
license due to a DUI 3rd offense.
When Adams failed to appear
for trial and while he was still on parole from his previous
conviction, he was additionally charged with bail jumping in the
first degree and PFO II.
On February 19, 1999, Adams pled guilty
to DUI 4th (a Class D felony), operating a motor vehicle on a
suspended license (a Class D felony), and PFO II.
On April 23,
1999, Adams pled guilty to bail jumping in the first degree (a
Class D felony).
On April 28, 1999, the court entered its final
judgment sentencing Adams to one year on the DUI 4th offense and
one year on the operating a motor vehicle on a suspended license
offense - enhanced to five years because of the PFO II offense,
for a total of six (6) years’ imprisonment.
In the judgment, the
court specifically stated, “Defendant is statutorily ineligible
for probation pursuant to [KRS] 533.060.”
On that same date,
the court entered a separate final judgment on the first-degree
bail jumping conviction, sentencing Adams to one year in prison.
In that judgment, the court also stated, “Defendant is
statutorily ineligible for probation pursuant to [KRS] 533.060.”
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From the court’s refusal to consider probation in these
judgments, Adams now appeals.
Contrary to the Commonwealth’s contention that the
issue was unpreserved, Adams’s attorney requested probation at
the sentencing hearing and filed a memorandum in support thereof.
Adams argues that under KRS 532.080(5), he was eligible for
probation on the charges of operating a motor vehicle on a
suspended license and PFO II.
KRS 532.080(5) provides as
follows:
A person who is found to be a persistent
felony offender in the second degree shall be
sentenced to an indeterminate term of
imprisonment pursuant to the sentencing
provisions of KRS 532.060(2) for the next
highest degree than the offense for which
convicted. A person who is found to be a
persistent felony offender in the second
degree shall not be eligible for probation,
shock probation, or conditional discharge,
unless all offenses for which the person
stands convicted are Class D felony offenses
which do not involve a violent act against a
person, in which case probation, shock
probation, or conditional discharge may be
granted. A violent offender who is found to
be a persistent felony offender in the second
degree shall not be eligible for parole
except as provided in KRS 439.3401.
(emphasis added).
Adams maintains that he was eligible for probation on
the first-degree bail jumping and DUI 4th charges under KRS
533.030(7) which provides in pertinent part:
Any prohibitions against probation, shock
probation, or conditional discharge under
KRS 533.060(2) or 532.045 shall not apply to
persons convicted of a misdemeanor or Class D
felony and sentenced to a period of
confinement or home incarceration under this
section.
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The court took the position that despite the language in the
above statutes, Adams was nevertheless ineligible for probation
under KRS 533.060(2) which provides as follows:
When a person has been convicted of a felony
and is committed to a correctional detention
facility and released on parole or has been
released by the court on probation, shock
probation, or conditional discharge, and is
convicted or enters a plea of guilty to a
felony committed while on parole, probation,
shock probation, or conditional discharge,
the person shall not be eligible for
probation, shock probation, or conditional
discharge and the period of confinement for
that felony shall not run concurrently with
any other sentence.
Several cases have held that KRS 533.060 controls over
other conflicting statutes regarding probation or sentencing.
Brewer v. Commonwealth, Ky., 922 S.W.2d 380 (1996); Hughes v.
Commonwealth, Ky., 875 S.W.2d 99 (1994); Williams v.
Commonwealth, Ky. App., 829 S.W.2d 942 (1992); Commonwealth v.
Martin, Ky. App., 777 S.W.2d 236 (1989).
The primary basis of
the Courts’ decisions in those cases was that KRS 533.060 was the
more specific statute and, under the rules of statutory
construction, specific statutes govern over more general
statutes.
Hughes, 875 S.W.2d 99; Williams, 829 S.W.2d 942;
Martin, 777 S.W.2d 236; Morgan County Board of Education v.
Elliott, 260 Ky. 672, 86 S.W.2d 670 (1935).
The Courts reasoned
that since KRS 533.060 specifically addressed felonies committed
while on parole, probation, awaiting trial, or with a firearm,
its provisions forbidding probation or concurrent sentencing
governed over the more general probation and sentencing statutes
which otherwise would have allowed for probation or concurrent
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sentencing.
Hughes, 875 S.W.2d at 100-101; Martin, 777 S.W.2d at
238.
However, from our reading of KRS 532.080(5) and KRS
533.060(2), we do not believe that KRS 533.060(2) is more
specific than KRS 532.080 as to the conflicting matter in the
present case.
While KRS 533.060(2) specifically addresses
felonies committed while on parole, etc., KRS 532.080 necessarily
considers that the felony could have been committed while on
parole since that is one of the elements of PFO II.
532.080(2)(c)(2).
KRS
As to the alleged conflict between KRS
533.060(2) and KRS 533.030(7), there is no question that the
legislature was aware of KRS 533.060(2) in enacting KRS
533.030(7) since the latter statute specifically makes reference
to and exempts Class D felons from the prohibitions against
probation in KRS 533.060(2).
See Bogard v. Commonwealth, Ky.
App., 687 S.W.2d 533 (1984).
Courts have also recognized that in enacting KRS
533.060, the Legislature demonstrated its intent to “provide
stiff penalties for convicted and paroled felons who commit
subsequent felonies on parole.”
Devore v. Commonwealth, Ky., 662
S.W.2d 829, 831 (1984), cert. denied, 496 U.S. 836, 105 S. Ct.
132, 83 L. Ed. 2d 72 (1984); see also Sutherland v. Commonwealth,
Ky., 910 S.W.2d 235 (1995) and Martin, 777 S.W.2d at 238.
It
appears, however, that the Legislature has more recently
demonstrated its intent to reduce prison overcrowding by its
amendments to KRS 532.080, which allow probation for PFO I and
PFO II offenders when the felonies are Class D nonviolent
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felonies, and KRS 533.030, which exempts Class D felons from the
prohibitions against probation in KRS 533.060(2) and KRS 532.045.
KRS 532.080(5) and (7); KRS 533.030(7); see also KRS 532.210
(home incarceration of Class D felons); Commonwealth v. Meyers,
Ky. App., 8 S.W.3d 58, 61 (1999).
It must be noted that those
amendments to KRS 532.080(5) and (7) were enacted eighteen (18)
years after KRS 533.060(2) was enacted1, and the amendment to KRS
533.030(7) was enacted ten (10) years thereafter.
In Brewer v.
Commonwealth, Ky., 922 S.W.2d 380 (1996), the Court held that
where the statutes could not be reconciled, KRS 533.060(2)
controlled over KRS 533.040(3) because it was the most recently
enacted of the two statutes.
Ky., 685 S.W.2d 544 (1984).
See also Commonwealth v. Schindler,
In viewing the two statutes in
conflict with KRS 533.060(2), we do not believe they can be
reconciled.
Hence, we believe that KRS 532.080(5) and KRS
533.030(7) control over KRS 533.060(2) as to eligibility for
probation for Class D (nonviolent — in the case of a PFO I or II)
felons who commit the felonies while on parole, probation, etc.
Accordingly, the trial court erred in ruling as a matter of law
that Adams was ineligible for probation on the charges of
operating a motor vehicle on a suspended license, PFO II, and
first-degree bail jumping.
Thus, we must remand for re-
sentencing on these offenses in light of this ruling.
1
KRS 532.080(7), allowing probation for PFO I Class D
felons, was first amended in 1994. While KRS 532.080(5),
allowing probation for PFO II nonviolent Class D felons, was not
actually amended until 1998, this Court adjudged on
constitutional grounds that PFO II Class D felons retroactively
had the same right to probation as the PFO I felons.
Commonwealth v. Meyers, Ky. App., 8 S.W.3d 58 (1999).
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As to the DUI 4th conviction, the court also erred in
adjudging that KRS 533.060(2) precluded consideration for
probation.
Chapter 189A has its own provisions regarding
probation for DUI offenses in KRS 189A.010.
Thus, the DUI
statute is the more specific statute and is controlling here.
KRS 189A.010(4)(d) designates a fourth or subsequent
offense DUI a Class D felony which, under KRS 532.060(d),
requires a sentence of 1-5 years.
KRS 189A.010(7) provides in
pertinent part:
For a fourth or subsequent offense under this
section, the minimum term of imprisonment
shall be one hundred twenty (120) days, and
this term shall not be suspended, probated,
or subject to conditional discharge or other
form of early release.
Although the minimum sentence for DUI 4th is one year, under KRS
189A.010(7), the court can nevertheless probate all but 120 days
of the sentence, since that is the “minimum term of imprisonment”
which cannot be probated.
Thus, in the instant case, Adams was
eligible for probation as to 245 days of his one-year sentence.
KRS 533.010(2) provides that the court shall consider probation,
probation with an alternative sentencing plan, or conditional
discharge before imposition of a sentence of imprisonment.
Accordingly, we vacate the sentence on the DUI 4th offense and
remand for the court to consider probation on that offense.
For the reasons stated above, the judgment of the
Fayette Circuit Court is vacated and this case is remanded for
further proceedings consistent with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
G. Scott Hayworth
Lexington, Kentucky
A. B. Chandler, III
Attorney General
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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