COMMONWEALTH OF KENTUCKY v. MARION NORRIS
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RENDERED:
January 22, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000720-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA ISAAC, JUDGE
ACTION NO. 98-CR-00056
v.
MARION NORRIS
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
COMBS, DYCHE, and GUIDUGLI, Judges.
COMBS, JUDGE.
The Commonwealth of Kentucky appeals from a final
judgment and sentence of the Fayette Circuit Court entered on
March 16, 1998, in which the court sentenced Norris to five years
in prison but placed him on probation.
Finding no error, we
affirm.
On November 3, 1997, a Lexington police officer noticed
Norris driving his truck in an erratic manner.
After pulling him
over, the police officer observed that Norris was unsteady on his
feet as he exited the truck, that his speech was slurred, and
that his eyes were bloodshot.
Norris’s three-year-old daughter
was also in the truck.
The policeman arrested Norris for driving
under the influence and for failing to have proper proof of
insurance and vehicle registration.
During a search of the
truck, the policeman found a black bag containing twenty-three
individually wrapped plastic baggies containing marijuana,
scales, and two wire clips.
Upon searching Norris, the policeman
also discovered a .22 caliber handgun in his coat pocket.
In January 1998, the Fayette County Grand Jury indicted
Norris for a series of offenses as follows:
one felony count of
possession of a handgun by a convicted felon (Kentucky Revised
Statute (KRS) 527.040) (Class C felony), one felony count of
trafficking in a controlled substance within 1,000 yards of a
school (KRS 218A.1411) (Class D felony), one misdemeanor count of
carrying a concealed weapon (KRS 527.020), one misdemeanor count
of possession of drug paraphernalia (KRS 218A.500), one count of
operating a motor vehicle under the influence (KRS 189A.010), one
count of operating a vehicle with a child not in a child
restraint (KRS 189.125), one count of operating a vehicle without
insurance (KRS 304.39-080), and one count of operating a vehicle
without a registration receipt (KRS 186.170).
On January 30, 1998, Norris entered a guilty plea
pursuant to a plea agreement with the Commonwealth to possession
of a handgun by a convicted felon, the amended charge of
possession of marijuana, carrying a concealed weapon, possession
of drug paraphernalia, operating a motor vehicle under the
influence, and having no child restraint.
Under the plea
agreement, the Commonwealth dismissed the two counts for
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operating a motor vehicle without insurance and without a
registration receipt; it recommended sentences of five
years for
being a felon in possession of a handgun, twelve months for
possession of marijuana, six months for carrying a concealed
weapon, six months for possession of drug paraphernalia, two days
for driving under the influence, and a $25.00 fine for having no
child restraint.
On March 16, 1998, the trial court sentenced Norris
consistent with the Commonwealth’s recommendation to a total
sentence of five years.
However, the court suspended service of
the sentence, placed him on probation for a period of five years,
and ordered him to complete drug treatment.
On March 23, 1998,
the Commonwealth filed a notice of appeal challenging the grant
of probation.
The Commonwealth argues that the trial court erred in
placing Norris on probation.
More specifically, it contends that
under KRS 533.060, the trial court was prohibited from granting
probation because Norris was ineligible for probation under the
statute.1
The Commonwealth maintains that because possession of
a handgun by a convicted felon is a Class C felony, Norris was
ineligible for probation.
1
As an initial matter, we note that the Commonwealth failed
to raise the issue of Norris’ probation eligibility before the
trial court prior to filing its appeal. Although this
preservation problem would generally prevent review by this
Court, the appeal involves a jurisdictional sentencing issue
dealing with the trial court’s statutory authority to grant
probation — a matter which is not subject to waiver. See, e.g.,
Gaither v. Commonwealth, Ky., 963 S.W.2d 621, 622 (1997); Hughes
v. Commonwealth, Ky., 875 S.W.2d 99, 100 (1994).
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This case concerns the interpretation of several
statutes; as purely legal issues are involved, de novo review is
our standard.
Floyd County Bd. of Educ. v. Ratliff, Ky., 955
S.W.2d 921, 925 (1997); Keeton v. City of Ashland, Ky. App., 883
S.W.2d 894, 896 (1994).
Prior to considering the specific
statutes involved in this case, we briefly address principles of
statutory construction involved in our analysis.
Inherent in the legislature’s authority to define
criminal conduct and to set the sentence for violations of
criminal statutes is the power either to limit or to prohibit
probation or parole.
Mullins v. Commonwealth, Ky. App., 956
S.W.2d 222, 223 (1997).
Generally, the words employed in a
statute are to be construed according to their ordinary and
common meaning.
See Lynch v. Commonwealth, Ky., 902 S.W.2d 813,
814 (1995); Alderman v. Brady, Ky. App., 957 S.W.2d 264, 266
(1997); KRS 446.080(4).
The "rule of lenity" is a well-established principle in
statutory construction of penal statutes and is central to this
case.
(1993).
See Commonwealth v. Lundergan, Ky., 847 S.W.2d 729, 731
In discussing the rule of lenity, the Kentucky Supreme
Court stated in Woods v. Commonwealth, Ky., 793 S.W.2d 809, 814
(1990):
Penal statutes are not to be extended by
construction, but must be limited to cases
clearly within the language used.
Commonwealth v. Malone, 141 Ky. 441, 132 S.W.
1033 (1911). ‘Moreover, doubts in the
construction of a penal statute will be
resolved in favor of lenity and against a
construction that would produce extremely
harsh or incongruous results.’ Commonwealth
v. Colonial Stores, Inc., Ky., 350 S.W.2d 465
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(1961); Boulder v. Commonwealth, Ky., 610
S.W.2d 615, 618 (1980) overruled on other
grounds.
See also Roney v. Commonwealth, Ky., 695 S.W.2d 863 (1985).
Pursuant to the rule of lenity, where a criminal statute is
ambiguous, doubts about the application of the statute must be
resolved in favor of the defendant.
Adamo Wrecking Co. v. United
States, 434 U.S. 275, 284-85, 98 S. Ct. 566, 572-73, 54 L. Ed. 2d
538 (1978); Roney, 695 S.W.2d at 864; Lundergan, supra.
We turn to the specific statute involved in this case.
KRS 533.060(1) provides that a person convicted of a Class C
felony involving the use of a firearm is not eligible for
probation:
When a person has been convicted of an
offense or has entered a plea of guilty to an
offense classified as a Class A, B, or C
felony and the commission of the offense
involved the use of a weapon from which a
shot or projectile may be discharged that is
readily capable of producing death or other
serious physical injury, the person shall not
be eligible for probation, shock probation,
or conditional discharge, except when the
person establishes that the person against
whom the weapon was used had previously or
was then engaged in an act or acts of
domestic violence and abuse as defined in KRS
403.720 against either the person convicted
or a family member as defined in KRS 403.720
of the person convicted. (Emphasis added).
KRS 500.080(14) provides: “‘Possession’ means to have actual
physical possession or otherwise to exercise actual dominion or
control over a tangible object.”
There is no express statutory
definition for the term use.
The Commonwealth argues that KRS 533.060(1) should be
construed to read "possession" synonymously with "use" within the
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phrase:
“the commission of the offense involved the use of a
weapon from which a shot or projectile may be discharged. . . .”
(Emphasis added).
Conversely, Norris argues that his conduct did
not constitute “use” of a weapon and that the statute requires
active use or employment of a weapon — not merely passive
possession.
In Haymon v. Commonwealth, Ky., 657 S.W.2d 239 (1983),
the Kentucky Supreme Court wrestled with the application of KRS
533.060(1) to a situation involving the possession of a firearm.
In Haymon, the defendant pleaded guilty to first-degree burglary
involving unlawful entry into a building and being armed with a
shotgun while in immediate flight from the premises.
The trial
court initially denied probation based on the prohibition
contained in KRS 533.060(1) dealing with "use" of a weapon.
The
Supreme Court noted that the term “use” of a weapon was subject
to several interpretations involving both the mere passive
presence of a weapon as well as the active employment of a
weapon.
Therefore, the Court held that it could not ascertain
the intent of the legislature in order to justify construing KRS
533.060(1) so broadly as to encompass mere possession of a
weapon.
We conclude that the phrase ‘use of a
weapon’ as it is used in K.R.S. 533.060(1) is
ambiguous in that it is subject to two
entirely different but nevertheless logical
interpretations. It is not possible to
determine which meaning the General Assembly
intended to give to the phrase ‘use of a
weapon’ and for that reason the movant is
entitled to the benefit of the ambiguity.
Because there was no showing that a
weapon was used in any manner to further the
commission of the offense, the trial court
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was in error in his belief that probation was
precluded by the statute.
Id. at 240.
See also Bailey v. United States, 516 U.S. 137, 116
S. Ct. 501, 133 L. Ed. 2d 472 (1995), construing the term use of
a firearm in federal drug statute to require active employment of
the weapon and not mere possession.
The Commonwealth urges us to apply the reasoning
expressed in the dissenting opinion in Haymon in applying KRS
533.060(1) to the current situation.
As an intermediate
appellate court, we are constrained to follow the rationale of
the majority opinion as the law of the Commonwealth.
Furthermore, the Commonwealth’s attempt to distinguish Haymon is
unconvincing.
Pursuant to Haymon and in accord with the rule of
lenity, we conclude that the trial court correctly construed KRS
533.060(1) and that it did not err in adjudging Norris eligible
for probation.
For the foregoing reasons, we affirm the judgment of
the Fayette Circuit Court.
DYCHE, JUDGE, DISSENTS.
GUIDUGLI, JUDGE, CONCURS.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
A. B. Chandler III
Attorney General
William A. LaBach
Lexington, Kentucky
William L. Daniel II
Assistant Attorney General
Frankfort, Kentucky
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