BOBBY C. JONES v. COMMONWEALTH OF KENTUCKY
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RENDERED:
FEBRUARY 2, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002639-MR
AND
NO. 2005-CA-001790-MR
BOBBY C. JONES
v.
APPELLANT
APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NO. 04-CR-00035
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AND ORDER
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, JUDGE; ROSENBLUM,1 SENIOR JUDGE; MILLER,2
SPECIAL JUDGE.
TAYLOR, JUDGE:
Bobby C. Jones brings Appeal No. 2004-CA-002639-
MR from a November 29, 2004, judgment and sentence of the
Montgomery Circuit Court upon a guilty plea to incest.
Jones
also brings Appeal No. 2005-CA-001790-MR from an August 2, 2005,
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
2
Retired Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
order of the Montgomery Circuit Court summarily denying his Ky.
R. Crim. P. (RCr) 11.42 motion to vacate sentence.
We affirm
both appeals.
The Montgomery County Grand Jury indicted Jones upon
the offense of incest for having sexual intercourse with his
stepchild during the period of 1996 through 2003.
Revised Statutes (KRS) 530.020.
Kentucky
Jones was accused of having
sexual intercourse with his stepdaughter, who was twenty years
old in 1996.
Pursuant to a plea agreement, Jones entered a plea of
guilty to the charge of incest.
By judgment and sentence
entered on November 29, 2004, Jones was sentenced to six years’
imprisonment.
Shortly thereafter, Jones filed a motion for new
trial under RCr 10.02.
Jones pointed out that his stepdaughter
was an adult at the time of their sexual relations and not a
child.
Under the incest penal statute (KRS 530.020), Jones
argued that only sexual intercourse between a “stepparent and
stepchild” is prohibited.
Consequently, Jones contended that
sexual intercourse with his adult stepdaughter was not
proscribed under the plain terms of KRS 530.020 and, thus, the
indictment failed to charge a public offense.
By order entered December 10, 2004, the circuit court
denied Jones’s RCr 10.02 motion.
The court held that the “RCr
10.02 is inappropriate for relief in this matter.”
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Thereupon,
Jones filed Appeal No. 2004-CA-002639-MR challenging the
November 29, 2004, judgment and sentence upon guilty plea.
In February 2005, Jones filed an RCr 11.42 motion to
vacate sentence.
He claimed that his trial counsel was
ineffective for advising him to plead guilty since the victim
was over the age of eighteen.
To support this claim, Jones
again argued that KRS 530.020 does not prohibit sexual
intercourse between a stepparent and his adult stepdaughter.
The circuit court disagreed with Jones’s interpretation of KRS
530.020 and summarily denied the RCr 11.42 motion.
Jones brings
Appeal No. 2005-CA-001790-MR from the order denying his RCr
11.42 motion.
2004-CA-002639-MR
In his direct appeal, Jones contends the circuit court
erred by denying his RCr 10.02 motion for a new trial.
Specifically, Jones argues that his guilty plea was invalid
because the indictment did not charge a public offense.
We do
not reach the merits of this argument because Jones failed to
properly challenge the guilty plea.
On November 29, 2004, Jones entered a guilty plea and
was sentenced to six years’ imprisonment.
To attack his guilty
plea, Jones chose to file an RCr 10.02 motion for a new trial.
RCr 10.02 provides:
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(1) Upon motion of a defendant, the court
may grant a new trial for any cause which
prevented the defendant from having a fair
trial, or if required in the interest of
justice. If trial was by the court without a
jury, the court may vacate the judgment,
take additional testimony and direct the
entry of a new judgment.
(2) Not later than ten (10) days after
return of the verdict, the court on its own
initiative may order a new trial for any
reason for which it might have granted a new
trial on motion of a defendant, and in the
order shall specify the grounds therefor.
By its very terms, RCr 10.02 is limited in scope to
the granting of a “new trial.”
As there is no “trial” with the
entry of a guilty plea, it is axiomatic that a guilty plea
cannot be properly challenged by an RCr 10.02 motion for a new
trial.
Accordingly, we decline to reach the merits and
summarily affirm the circuit court denial of his RCr 10.02
motion.
2005-CA-001790-MR
Jones contends the circuit court erred by denying his
RCr 11.42 motion.
In particular, Jones claims that his trial
counsel was ineffective for advising him to plead guilty.
In
support thereof, Jones argues that KRS 530.020 only criminalizes
sexual intercourse between a “stepparent and stepchild.”
Jones
points out that KRS 15.900 defines child as a person under the
age of eighteen years.
According to Jones’s interpretation of
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KRS 530.020, only sexual intercourse between a stepparent and
stepchild under the age of eighteen years is prohibited.
Because Jones’s stepdaughter was twenty years old at the time of
the earliest charge, Jones maintained that his conduct with his
stepdaughter was not criminalized by KRS 530.020 and trial
counsel was ineffective for advising him to plead guilty to
incest.
To prevail, Jones must demonstrate that trial
counsel’s performance was deficient and that absent such
deficiency, there existed a reasonable probability that he would
not have pleaded guilty.
Sparks v. Commonwealth, 721 S.W.2d 726
(Ky.App. 1986); Shelton v. Commonwealth, 928 S.W.2d 817 (Ky.App.
1996).
Incest is criminalized by KRS 530.020 and reads, in
part, as follows:
(1) A person is guilty of incest when he has
sexual intercourse or deviate sexual
intercourse, as defined in KRS 510.010, with
a person whom he knows to be an ancestor,
descendant, brother, or sister. The
relationships referred to herein include
blood relationships of either the whole or
half blood without regard to legitimacy,
relationship of parent and child by
adoption, and relationship of stepparent and
stepchild.
It is well-established that interpretation and
construction of a statute is a matter of law for the Court.
City of Worthington Hills v. Worthington Fire Protection
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District, 140 S.W.3d 584 (Ky.App. 2004).
When interpreting a
statute, we are primarily guided by legislative intent and
legislative purpose behind enacting the statute.
City of
Louisville v. Helman, 253 S.W.2d 598 (Ky. 1952).
The
legislative intent and purpose of a statute may be gleaned from
its language.
Carroll Co. Fiscal Court, 633 S.W.2d 720 (Ky.App.
1982).
From its language, we glean the purpose of KRS 530.020
is to prohibit sexual intercourse between persons within certain
proscribed degrees of relationship to each other.
It is
designed to generally protect the family unit, and to
specifically protect society from genetic mutations that may
occur in issue of incestuous relationships.
In furtherance of
protecting the family unit, our legislature particularly
prohibited sexual intercourse between “stepparent and
stepchild.”
KRS 530.020.
The common definition of “stepchild”
is “a child of one’s wife or husband by a former marriage[.]”
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
1149 (10th ed. 2002).
“child’ is defined as:
1a: an unborn or recently born person . . .
2a: a young person esp. between infancy and
youth . . . 4a: a son or daughter of human
parents . . . [.]
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
198 (10th ed. 2002).
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And, a
Jones urges us to adopt a narrow definition of
“stepchild” as including only an individual under the age of
eighteen.
He cites us to the definition of child in KRS 15.900
in support thereof.
However, the definitions contained in KRS
15.900 are only applicable to KRS 15.910 to KRS 15.940.
In
fact, KRS 15.900 explicitly states that the definitions therein
are to be “used in KRS 15.910 to KRS 15.940.”
Simply put, there
is no authority for applying KRS 15.900(1)’s definition of
“child” to KRS 530.020.
As such, we do not believe KRS
15.900(1) provides the proper definition of child or stepchild
as found in KRS 530.020.
Rather, we interpret “stepchild” broadly as meaning a
son or daughter of one’s wife or husband.
Plainly stated, we
view the term “stepchild” as encompassing both an adult and
minor child of one’s wife or husband.
This interpretation
better comports with the legislative purpose of KRS 530.020 –
the protection of the family unit.
We can find no legal
authority that leads us to believe the general assembly intended
for incest under KRS 530.020 to be limited to relationships with
children under the age of eighteen.
It stands to reason that
the family unit is equally threatened by sexual relations
between a stepparent and adult stepchild as between a stepparent
and minor stepchild.
-7-
Our interpretation of the term “stepchild” is
buttressed by the General Assembly’s subsequent amendment of KRS
530.020 in 2006.
While not amending the substantive terms and,
in particular, the terms “stepparent and stepchild,” the
legislature amended the penalty section of KRS 530.020 and
specifically recognized that incest committed by two consenting
adults constituted a Class C Felony.
In discerning legislative
intent and purpose, the subsequent amendment of a statute is a
valid consideration.
See Commonwealth v. Meyers, 8 S.W.3d 58
(Ky.App. 1999).
Accordingly, we hold that “stepchild” in KRS 530.020
means a son or daughter of one’s wife or husband.
Thus, Jones
was properly indicted upon the offense of incest for having
sexual intercourse with his adult stepdaughter.
Based upon our
interpretation of KRS 530.020, we do not believe that Jones’s
trial counsel was ineffective in this regard.
Having considered the Commonwealth of Kentucky’s
motion to dismiss Appeal No. 2004-CA-002639-MR and being
otherwise sufficiently advised; the Court ORDERS the motion be,
and it is hereby, DENIED.
For the foregoing reasons, Appeal Nos. 2004-CA-002639MR and 2005-CA-001790-MR are affirmed.
-8-
ROSENBLUM, SENIOR JUDGE, CONCURS IN RESULT ONLY.
MILLER, SPECIAL JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
ENTERED: February 2, 2007
/s/ Jeff Taylor____________
JUDGE, COURT OF APPEALS
MILLER, SPECIAL JUDGE, DISSENTING.
I do not interpret
KRS 530.020 as criminalizing sexual relationships between a
stepparent and a stepchild over 18 years of age as it does not
deprecate the family unit nor implicate hereditary risk.
I do
not believe the legislature intended the term “stepchild” to
apply to a person over 18 years of age.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
Barbara Anderson
Lexington, Kentucky
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General of
Kentucky
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Michael L. Harned
Assistant Attorney General of
Kentucky
Frankfort, Kentucky
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