COMMONWEALTH OF KENTUCKY v. LEON BANKS

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RENDERED: March 26, 1999; 10:00 a.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1998-CA-000569-MR COMMONWEALTH OF KENTUCKY APPELLANT APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE MARY C. NOBLE, JUDGE ACTION NO. 97-CR-01241 v. LEON BANKS APPELLEE OPINION VACATING AND REMANDING ** ** ** ** ** BEFORE: GUIDUGLI, JOHNSON AND SCHRODER, JUDGES. GUIDUGLI, JUDGE. The Commonwealth appeals an order of the Fayette Circuit Court probating the five-year sentence imposed upon Leon Banks (Banks) after his conviction for possession of drug paraphernalia and second-degree persistent felony offender (PFO II). The Commonwealth argues that the court erred when it found Kentucky Revised Statute (KRS) 532.080 unconstitutional and that Banks was eligible for probation. After reviewing the record, the applicable law, and the arguments of counsel, we vacate and remand. On November 11, 1997, a grand jury indicted Banks on the following charges: facilitation to trafficking in a controlled substance; possession of drug paraphernalia, second offense; and PFO II. The PFO II charge was based on a 1996 conviction for possession of a controlled substance. In accordance with a plea agreement, Banks pleaded guilty to possession of drug paraphernalia, second offense and PFO II. The Commonwealth recommended a one-year sentence on the drug paraphernalia charge, enhanced to five years on the PFO II count. The court accepted Banks’ guilty plea, ordered a presentence investigation report, and scheduled sentencing. On the date set for sentencing, Banks asked the court to consider probating his sentence. He wanted to participate in a drug treatment program while on probation. The court advised the defendant to serve notice on the Attorney General of his constitutional challenge to KRS 532.080. See Jacobs v. Commonwealth, Ky. App., 947 S.W.2d 416 (1997). and re-docketed sentencing. The court passed Banks filed a written motion for probation challenging the constitutionality of KRS 532.080 with service on the Attorney General. hearing in February 1998. The court held a sentencing By order entered March 4, 1998, the court sentenced Banks to one year, enhanced to five under PFO II, probated the sentence for five years, and ordered him to report to drug court. This appeal followed. The Commonwealth argues that Banks was ineligible for probation under KRS 532.080(5), and that the statute is constitutional. We agree. -2- When the court sentenced Banks, no persistent felony offender in the second degree was eligible for probation, shock probation, or conditional discharge. KRS 532.080(5). However, a persistent felony offender in the first degree who stood convicted of a Class D felony was eligible for probation. 532.080(7). KRS Effective July 15, 1998, both PFO I and PFO II defendants are eligible for probation if all the offenses for which they stand convicted are Class D felonies which do not involve a violent act against a person. 455 section 76. Omnibus Crime Bill, HB The act did not make these changes retroactive. During the February 27, 1998 sentencing hearing, the court discussed Banks’ criminal history. It found that he did not have a “bad” record, just one of a drug addict. The court noted that Banks could not participate in drug court unless he was on probation, and that he did not qualify for probation under KRS 532.080 because of his PFO II conviction. Judge Noble held KRS 532.080 unconstitutional as a violation of equal protection, as having no rational basis, and as requiring an absurd result.1 The record shows that the trial judge fully considered the seriousness of the offense, as well as appellee’s history and character. Yet the trial court determined that Banks should be 1 We recently addressed this issue in Commonwealth v. Beeler, Ky. App., ___ S.W.2d ___, 45 K.L.S. 12 (October 2, 1998). In that case, as in this one, the parties agreed that the issue is an equal protection claim subject to rational basis scrutiny. See Commonwealth v. Howard, Ky., 969 S.W.2d 700, 703-704 (1998). We held the statute constitutional. Making Class D felon PFO I defendants eligible for probation but not Class D felon PFO II defendants is rationally related to the state’s interest in eliminating prison overcrowding. Beeler, supra. -3- granted probation. Under the circumstances, we are unable to say that the trial court’s actions would be an abuse of discretion. However, this was not a matter within the trial court’s discretion. The clear language of KRS 532.080(5) and KRS 533.060(2) specifies that Banks is ineligible for probation. Thus, the trial court acted beyond its authority in granting probation. This Court is aware of the disparate treatment accorded to persons convicted of PFO I and persons convicted of PFO II. Under the 1994 amendment to KRS 532.080, a defendant charged with PFO I was made eligible for probation if the underlying offense is a Class D felony. KRS 532.080(7). The legislature, however, did not similarly amend the language in KRS 532.080(5), prohibiting probation to PFO II defendants who were convicted of Class D felonies. Although the legislature has subsequently remedied this inconsistency, we are not at liberty to interpret the statute contrary to its express directive. Accordingly, the order of the Fayette Circuit Court granting probation to Banks is vacated, and this matter is remanded for re-sentencing consistent with this opinion. ALL CONCUR BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: A. B. Chandler, III Attorney General Gene Lewter Lexington, KY Vickie L. Wise Assistant Attorney General Frankfort, KY -4-

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