COMMONWEALTH OF KENTUCKY v. PHILLIP W. MEYERS
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RENDERED: December 17, 1999; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000812-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LEWIS PAISLEY, JUDGE
ACTION NO. 97-CR-1261
v.
PHILLIP W. MEYERS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
THE FULL COURT SITTING EN BANC
MILLER, JUDGE:
The Commonwealth of Kentucky brings this appeal
from a March 31, 1998 Judgment of the Fayette Circuit Court.
We
affirm.
On November 17, 1997, Phillip W. Meyers was indicted by
a Fayette County Grand Jury upon the charges of second-degree
trafficking in a controlled substance (Kentucky Revised Statutes
(KRS) 218A.1413); trafficking in a controlled substance within
1,000 yards of a school (KRS 218A.1411); and possession of drug
paraphernalia, second offense (KRS 218A.500(2)).
Meyers was also
charged as being a first-degree persistent felony offender
(PFO I) (KRS 532.080(3)).
Pursuant to a plea agreement with the
Commonwealth, Meyers entered a guilty plea to the charge of
possession of drug paraphernalia (second offense), a Class D
felony and the amended charge of second-degree persistent felony
offender (PFO II) (KRS 532.080(2)).
Pursuant to the same plea
agreement, the court dismissed the remaining charges.
Prior to
sentencing, Meyers filed a motion requesting he be considered for
probation; he argued failure to do so would deprive him of his
constitutional rights.
On March 27, 1998, the circuit court
sentenced Meyers to five years' imprisonment probated for a
period of five years.
The Commonwealth brings this appeal.
Within a single statute, KRS 532.080, our legislature
has established two classifications for recidivist violators.
Those convicted of a felony after having been convicted of one
previous felony are persistent felony offenders (PFOs) in the
second degree and punished accordingly.
KRS 532.080(2).
Those
convicted of a felony after having been convicted of two or more
felonies are PFOs in the first degree and are punished more
severely.
KRS 532.080(3).
The legislature has also drawn a
distinction between PFO I Class D felons and PFO II Class D
felons regarding probation, shock probation, and conditional
discharge.
KRS 532.080(5)1 and (7) provide in relevant part:
(5) A person who is found to be a persistent
felony offender in the second degree shall be
sentenced to an indeterminate term of
1
We are reviewing Kentucky Revised Statutes 532.080(5) as
amended July 15, 1994. Said subsection was again amended in 1998
to allow Persistent Felony Offender (PFO) II Class D felons to be
considered for probation, shock probation, and conditional
discharge.
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imprisonment . . . . 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.
(7) If the offense the person presently
stands convicted of is a Class A, B, or C
felony, a person who is found to be a
persistent felony offender in the first
degree shall not be eligible for probation,
shock probation, or conditional discharge
. . .(Emphases added.)
Under the above statutory scheme, an individual convicted of a
Class D felony and found to be a PFO I (PFO I Class D felon) is
eligible for probation, shock probation, and conditional
discharge;2 whereas, an individual convicted of a Class D felony
and found to be a PFO II (PFO II Class D felon) is ineligible for
same.
Such difference in treatment is indeed baffling as PFO I
Class D felons are the more pestilent offenders.
Upon its face,
the above distinction between PFO I Class D felons and PFO II
Class D felons seems to offend common notions of equality and
fair play.
Perhaps perceiving same, the circuit court
disregarded Subsection (5) and granted Meyers probation.
Viewing
no constitutional impingement, the Commonwealth argues the
circuit court erred by granting Meyers probation.
It is, of course, within the particular province of the
judiciary to adjudge the constitutionality of legislative
enactments.
Such authority rests in the inherent power of the
courts and is a necessary component of our tripartite government.
2
Subsection (7) accomplishes this by denying eligibility to
those convicted of Class A, B, or C felonies. By omission and
implication, PFO I felons standing convicted of a Class D felony
are eligible.
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In the case sub judice, our inquiry focuses solely upon the
classification created by juxtaposing KRS 532.080(5) and (7)3:
Subsection (7) granting PFO I Class D felons the opportunity of
probation, shock probation, or conditional discharge and
Subsection (5) excluding PFO II Class D felons from same.
We are
thus called upon to discern the constitutionality of the
classification of PFO I Class D felons and PFO II Class D felons
relative to probation, shock probation, and conditional
discharge.
Probation and conditional discharge are contemporary
facets of present day penology.
They afford the state an
opportunity to accomplish rehabilitation without incarceration,
thus lessening the financial burden to society.
Probation and
conditional discharge are also of great importance to those
standing convicted.
Unlike parole, which comes after a period of
servitude, probation and conditional discharge require minimal,
if any, incarceration.
is at stake.
In the final analysis, individual liberty
This being true, the matter of probation certainly
has constitutional implications.
See Gagnon v. Scarpelli, 411
U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).
Equal treatment under the law has been the quest of
peoples throughout history.
It has come to fruition as a
3
We shall hereafter sometimes refer to this classification
as merely the “classification” or the “classification of PFO I
Class D felons and PFO II Class D felons”; however, our opinion
should not be misconstrued as passing judgment upon the general
classification of PFO I Class D felons and PFO II Class D felons.
Our concern is directed solely to the classification apropos to
probation, shock probation, and conditional discharge.
-4-
fundamental notion in society finding expression through
philosophy, theology, and finally, the law.
It is not a stagnant
principle -- unmoving, unchanging, or unyielding.
Instead, it
has the fluidity to respond to ever changing social mores.
As
society reforms itself, notions of equality are inextricably
aligned.
The basic principle of equal protection of the law is
fixed and secured by our Federal and State Constitutions.
Const. amend. XIV, and Ky. Const. §2 and §3.
nature, however, innately remains.
U.S.
Its evolving
A determination of
unconstitutional discrimination must “never be confined to
historical notions of equality.”
See Harper v. Virginia State
Board of Elections, 383 U.S. 663, 669, 86 S. Ct. 1079, 16 L. Ed.
2d 169 (1966).
Equality rests largely upon contemporary notions
of fair play.
Upon this analysis, we examine the assertion that
the classification of PFO I Class D felons and PFO II Class D
felons violates the constitutional guarantees of equal protection
of the law.
To pass constitutional muster upon equal protection
grounds, the classification of PFO I Class D felons and PFO II
Class D felons must be rationally related to a legitimate state
interest.
This “rational basis test” has been eruditely
articulated as follows:
The Equal Protection Clause of the
Fourteenth Amendment, § 1, commands that no
State shall “deny to any person within its
jurisdiction the equal protection of the
laws.” Of course, most laws differentiate in
some fashion between classes of persons. The
Equal Protection Clause does not forbid
classifications. It simply keeps
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governmental decisionmakers from treating
differently persons who are in all relevant
respects alike.
. . . the Equal Protection Clause
requires only that the classification
rationally further a legitimate state
interest.
. . . .
The appropriate standard of review is
whether the difference in treatment . . .
rationally furthers a legitimate state
interest. In general, the Equal Protection
Clause is satisfied so long as there is a
plausible policy reason for the
classification . . . and the relationship of
the classification to its goal is not so
attenuated as to render the distinction
arbitrary or irrational . . . .
Nordlinger v. Hahn, 505 U.S. 1, 10-11, 112 S. Ct. 2326, 120 L.
Ed. 2d 1 (1992) (emphases added) (citations omitted).4
Simply
stated, there must exist a legitimate state interest rationally
related to the differential treatment afforded PFO I Class D
felons and PFO II Class D felons.
If such interest exists, the
classification is constitutional; if such does not exist, the
classification is unconstitutional.
The apparent state interest in classification of PFO I
Class D felons and PFO II Class D felons is that of reducing
over-crowding in prisons.5
It is undeniable that fewer
individuals are incarcerated by allowing PFO I Class D felons to
4
The standards for equal protection analysis under the
Kentucky Constitution are the same as those under the Fourteenth
Amendment of the United States Constitution. Children's
Psychiatric Hospital of Northern Kentucky, Inc. v. Revenue
Cabinet, Commonwealth, Ky., 989 S.W.2d 583 (1999), and Delta
Airlines, Inc. v. Commonwealth, Revenue Cabinet, Ky., 689 S.W.2d
14 (1985).
5
Found in legislative pronouncement 1996 Ky. Acts 247.
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be considered for probation, shock probation, or conditional
discharge.
It is, thus, a valid argument that this provision, in
fact, decreases prison population.
not end there.
The inquiry, however, does
The equal protection analysis is not solely
concerned with the resulting effect of a statutory provision.
The relevant inquiry under the equal protection analysis is
whether the classification (that is, the difference in treatment)
is rationally related to a legitimate governmental interest. See
Nordlinger, 505 U.S. 1.
In short, the classification of PFO I
Class D felons and PFO II Class D felons must rationally further
the state's goal of reducing prison over-crowding.
To that end,
we cannot so conclude.
We are unable to fathom a rational justification for
the difference in treatment between PFO I Class D felons and PFO
II Class D felons.
The goal of reducing prison over-crowding
might easily be attained by considering both PFO I Class D felons
or PFO II Class D felons for probation, shock probation, or
conditional discharge.
We perceive the relationship between the
goal and the classification to be at best tenuous.
The
classification's irrationality is more amply illuminated by
consideration of the policy interest underlying the PFO
sentencing scheme as a whole.
PFOs are classified based upon the number of prior
felony offenses.
Such classification has been held to serve the
legitimate state interest of punishing more severely those who
repeatedly commit felonies.
App., 686 S.W.2d 822 (1984).
See Collett v. Commonwealth, Ky.
Such interest was a major policy
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consideration behind the enactment of the PFO sentencing scheme.
It seems to us that allowing the more recidivist felony offenders
probation, shock probation, or conditional discharge while
denying lesser offenders the same privilege, undermines the
policy interest behind the penal goal.
quite absurd.
Indeed, the result is
The inveterate felony offenders might be treated
more leniently than the less frequent offenders.
Legislation
that rests upon such irrationality cannot withstand
constitutional scrutiny.
We can think of no plausible basis to
support the constitutionality of the classification.
As such, we
are of the opinion such differentiation cannot withstand the
rational basis test.
We view the classification void of rational
justification and violative of equal protection of the law.6
The unconstitutional classification of PFO I and PFO II
Class D felons relative to probation, shock probation, and
conditional discharge is, of course, the product of KRS
532.080(5) and (7).
We perceive such statutory classification as
being “underinclusive.”
Simply stated, it excludes a class of
persons similarly situated without legally sufficient
governmental purpose.
As decisively observed in Welsh v. United States, 398
U.S. 333, 361, 90 S. Ct. 1792, 26 L. Ed. 2d 308 (1970) (Harlan,
J., concurring in result):
Where a statute is defective because of
underinclusion there exist two remedial
alternatives: a court may either declare it a
nullity and order that its benefits not
6
We also harbor grave concern as to the constitutionality of
the classification based upon due process grounds.
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extend to the class that the legislature
intended to benefit, or it may extend the
coverage of the statute to include those who
are aggrieved by exclusion. (Emphases added.)
(Citations omitted.)
See also Califano v. Westcott, 443 U.S. 76, 99 S. Ct. 2655, 61 L.
Ed. 2d 382 (1979); and Iowa-Des Moines National Bank v. Bennett,
284 U.S. 239, 52 S. Ct. 133, 76 L. Ed. 265 (1931).
We think the
above rule broad enough to encompass our case.
In deciding between the two above alternatives, we are
to be guided by legislative intent.
Califano, 443 U.S. 76.
Simply put, we are to “accommodate as fully as possible the
policies and judgments expressed in the statutory scheme as a
whole.”
Id. at 94 (citing Welsh, 398 U.S. 333).
In so doing, we
hold that the “benefit” - eligibility for probation, shock
probation, and conditional discharge - should be extended to PFO
II Class D felons.
We are buttressed in our decision by the
legislature's subsequent amendment of KRS 532.050(5) in 1998,
which granted PFO II Class D felons such eligibility for
probation, shock probation, and conditional discharge.
this to be a valid consideration.
(1974).
We deem
73 Am. Jur. 2d Statutes §178
We also believe the extension of benefits to PFO II
Class D felons more aptly comports with legislative intent to
reduce prison population.
In sum, we hold that PFO II Class D felons are eligible
for probation, shock probation, and conditional discharge as are
PFO I Class D felons.
Hence, we are of the opinion that the
circuit court did not err by considering Meyers for probation.
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For the foregoing reasons, the Judgment of the Fayette
Circuit Court is affirmed.
JUDGES BUCKINGHAM, COMBS, GARDNER, GUIDUGLI,
HUDDLESTON, JOHNSON, KNOPF, KNOX, McANULTY, AND SCHRODER CONCUR.
CHIEF JUDGE GUDGEL AND JUDGES DYCHE AND EMBERTON CONCUR
IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
A. B. Chandler, III
Attorney General of Kentucky
and
Vickie Wise
Assistant Attorney General
Frankfort, Kentucky
Gene Lewter
Lexington, Kentucky
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