COMMONWEALTH OF KENTUCKY v. WILLIAM RAY WOFFORD
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RENDERED: February 11, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-001241-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA ISAAC, JUDGE
INDICTMENT NO. 98-CR-000139
WILLIAM RAY WOFFORD
APPELLEE
** ** ** ** **
NO. 1998-CA-002457-MR
WILLIAM RAY WOFFORD
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA ISAAC, JUDGE
INDICTMENT NO. 98-CR-000139
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN 1998-CA-001241-MR
AND 1998-CA-002457-MR
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON and SCHRODER, Judges.
HUDDLESTON, Judge:
William Wofford pled guilty in Fayette Circuit
Court to one count of sodomy in the third degree and one count of
being a persistent felony offender in the second degree (PFO II).
The court sentenced Wofford to one year in prison on the sodomy
count, enhanced to ten years because of the PFO II conviction, and
then probated the sentence for five years.
The
Commonwealth
argues
that
the
plain
language
of
Kentucky Revised Statute (KRS) 532.080(5) prohibits probation for
a PFO II felon.
When the circuit court sentenced Wofford on May
11, 1998, the statute provided, in part, that “[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.”1
In 1994 the General Assembly amended KRS 532.080(7).2
KRS 532.080(7) addresses persistent felony offenders in the first
degree.
The statute as amended does not prohibit probation for a
person convicted of PFO I when the underlying offense is a class D
felony.
Thus, the PFO I statute allows greater leniency, by
allowing for the possibility of probation, to the more recidivist
felon.
1
The General Assembly amended Kentucky Revised Statute (KRS)
532.080(5), effective July 15, 1998, to allow probation for a PFO
II Class D felon. KRS 532.080(5), as amended in 1998, provides, in
part, that “[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.”
2
1994 Kentucky Acts, Chapter 396, Section 11, House Bill
390. KRS 532.080(7) states, in part, that “[i]f 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, nor for parole until having served a
minimum term of incarceration of not less than ten (10) years.”
-2-
Wofford suggests that such a result is not rationally
related
to
a
legitimate
unconstitutional.
state
purpose
and
is,
therefore,
The Commonwealth contends that the disparate
treatment is rationally related to the legislative purpose of
reducing prison overcrowding.
In 1996 the General Assembly amended KRS 532.080 to make
the 1994 amendment retroactive.3
The purpose of the statute was to
reduce prison and jail overcrowding.4
Following the 1994 and 1996
amendments to KRS 532.080, defendants convicted of being a PFO I
with an underlying Class D felony were eligible for probation,
while defendants convicted of being a PFO II with an underlying
Class D felony were not.
Chapman
v.
Gorman5
that
The Kentucky Supreme Court observed in
“[l]egislative
distinctions
between
persons, under traditional equal protection analysis, must bear a
rational relationship to a legitimate state end.”
Thus, the issue
is whether allowing persons convicted of Class D felonies with a
PFO I enhancement to be eligible for probation while not providing
Class D offenders with PFO II convictions the same opportunity for
probation is rationally related to the legislative goal of reducing
the prison and jail population.
3
1996 Kentucky Acts, Chapter 247, House Bill 267, effective
April 4, 1996.
4
Id.
5
Ky., 839 S.W.2d 232, 239 (1992) (citing Clements v.
Fashing, 457 U.S. 957, 102 S. Ct. 2836, 73 L. Ed. 2d 508 (1952).
See also Chapman v. Eastern Coal Corp., Ky., 519 S.W.2d 390 (1975)
(While Chapman still stands for the proposition for which it is
cited herein, the decision has been superseded by statute as
recognized in Wells v. Estridge, Ky. 646 S.W.2d 41 (1982)).
-3-
In Commonwealth v. Meyers6 this Court, sitting en banc,
held “that PFO II Class D felons are eligible for probation, shock
probation, and conditional discharge as are PFO I Class D felons.”
Meyers pled guilty to possession of drug paraphernalia and PFO II7
and received a five year sentence probated for five years.8
In
holding the statute unconstitutional, this Court said that:
It seems to us that by 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.
inveterate
Indeed, the result is quite absurd.
felony
offenders
might
be
treated
leniently than the less frequent offenders.
that
rests
upon
such
irrationality
constitutional scrutiny.
basis
to
support
classification.
the
The
more
Legislation
cannot
withstand
We can think of no plausible
constitutionality
of
the
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.9
The Meyers decision dictates the outcome of the instant
case.
Accordingly, we affirm the Fayette Circuit Court’s order
6
Ky. App., ___ S.W.2d ___, (1999), WL 1206719, at *4.
7
Id. at *1.
8
Id.
9
Id. at *3.
-4-
granting probation to Wofford because “PFO II Class D felons are
eligible for probation . . . .”10
In
a
related
case
Wofford
v.
Commonwealth,
1998-CA-002457-MR, Wofford appeals the revocation of his probation.
Fayette Circuit Court found that Wofford violated the terms of his
probation by “failing to maintaining [sic] employment, failing to
maintain good behavior and failure to cooperate with sex offender
treatment.”
Wofford argues that the court erred
by admitting a
hearsay report that evaluated his potential for treatment in the
Sexual Offender Treatment Program.
This Court noted in Messer v. Commonwealth11 that “whether
the trial court revoked upon one violation or three is of no
consequence to the appellant so long as the evidence supports at
least one violation.”
Even if we assume the circuit court erred by
admitting the report as Wofford suggests, the Commonwealth has
established by a preponderance of the evidence12 that he did not
maintain employment or good behavior.
Wofford admitted that he
terminated his employment and that while on work release he spent
a day with his family.
The circuit court did not err when it probated Wofford
nor when it revoked his probation.
We affirm both judgments.
ALL CONCUR.
10
Id. at *4.
11
Ky. App., 754 S.W.2d 872, 873 (1988).
12
See Murphy v. Commonwealth, Ky. App., 551 S.W.2d 838, 841
(1977) (stating that “it will be incumbent on the Commonwealth to
show by a preponderance of the evidence that the appellant has
violated the terms of his probation”).
-5-
BRIEF FOR APPELLANT in
NO. 1998-CA-001241-MR:
BRIEF FOR APPELLEE in
NO. 1998-CA-001241-MR:
Albert B. Chandler III
Attorney General
Gene Lewter
Lexington, Kentucky
Christopher M. Brown
Assistant Attorney General
Frankfort, Kentucky
BRIEF FOR APPELLANT in
NO. 1998-CA-002457-MR:
BRIEF FOR APPELLEE in
NO. 1998-CA-002457-MR:
Gene Lewter
Lexington, Kentucky
Albert B. Chandler III
Attorney General
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
-6-
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