RONALD G. LIPTON v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 7, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001964-MR
RONALD G. LIPTON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOHN W. POTTER, JUDGE
ACTION NO. 84-CR-1606 AND 85-CR-585
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, JOHNSON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from an order denying a PFO II
Class D felon’s motion for prerelease probation in which appellant
asked the court to declare KRS 532.080(5) unconstitutional.
Since
it is possible that the trial court denied appellant’s motion
because of his PFO II status, we vacate the order and remand for
the trial court to reconsider appellant for prerelease probation
in light of Commonwealth v. Meyers, Ky. App., 8 S.W.3d 58 (1999),
the recent decision of this Court adjudging KRS 532.080(5)
unconstitutional.
In 1985, appellant, Ronald Lipton, was found guilty of
wanton endangerment in the first degree, possession of a
controlled substance, subsequent offender, resisting arrest, and
persistent felony offender in the second degree (“PFO II”) and
was sentenced to fifteen (15) years’ imprisonment.
In 1986,
Lipton pled guilty to possession of a controlled substance in the
first degree and was sentenced to three (3) years’ imprisonment
to be served concurrently with his prior sentence.
On February
26, 1999, Lipton filed a motion for prerelease probation pursuant
to KRS 439.575.
The court thereafter ordered the Department of
Corrections to conduct a probation risk assessment report.
The
report stated that Lipton was not eligible for probation because
one of his convictions included a PFO II conviction.
The
conclusion of the report was that Lipton was not recommended for
probation because one of his convictions was a PFO II and because
of two parole violations.
On April 12, 1999, the trial court
denied Lipton’s motion for prerelease probation without giving a
reason therefor.
On July 30, 1999, Lipton, assuming that the
court had relied on KRS 532.080(5) in refusing to grant him
prerelease probation, moved the court to declare KRS 532.080(5)
unconstitutional.
On that same date, Lipton filed another motion
for prerelease probation, citing his argument that KRS 532.080(5)
was unconstitutional.
The motion was again denied by the court
on August 4, 1999 without any reason being given.
From this
order, Lipton now appeals.
From the outset, we note that this Court has recently
ruled on the issue of the constitutionality of KRS 532.080(5) in
Commonwealth v. Meyers, Ky. App., 8 S.W.3d 58 (1999), which was
rendered after the briefs were filed in this case.
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In addressing
KRS 532.080 as it existed prior to its amendment in 1998, we held
that it was unconstitutional for KRS 532.080(7) to allow PFO I
Class D felons probation, while denying probation to PFO II Class
D felons in KRS 532.080(5).
KRS 532.080 was amended in 1998 to
allow PFO II Class D felons to be probated, and on its face
seemingly treated PFO I and PFO II Class D felons the same as to
eligibility for probation.
However, KRS 532.080(9) states that
“The provisions of this section amended by 1994 Ky. Acts ch. 396,
sec. 11, shall be retroactive.”
Lipton argues that the trial
court relied on this section in denying him prerelease probation
on the basis that he was a PFO II Class D felon, since probation
for PFO II Class D felons was not allowed until the 1998
Amendment to the statute (and, thus, could not be applied
retroactively to a defendant sentenced before July 15, 1998),
while KRS 532.080(7) could be applied retroactively to a PFO I
Class D felon sentenced prior to July 15, 1998 since that section
was enacted in 1994.
We agree that such an application of KRS
532.080 would be unconstitutional under Commonwealth v. Meyers,
Ky., 8 S.W.3d 58.
However, as stated earlier, the court gave no
reason why it denied Lipton’s motion for prerelease probation.
We have no idea whether the court:
applied KRS 532.080 as it
existed at the time of Lipton’s sentencing and denied him
probation because he was a PFO II offender; applied KRS 532.080
as it existed at the time of the motion (after the 1998
Amendment), but refused to grant him probation on the basis that
KRS 532.080(5) could not be applied retroactively under KRS
532.080(9), as Lipton contends; or denied him probation because
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of his two prior parole violations, which has nothing to do with
him being a PFO II offender.
We note that the decision to grant
or deny probation is within the trial court’s discretion.
Turner
v. Commonwealth, Ky., 914 S.W.2d 343 (1996); Brewer v.
Commonwealth, Ky., 550 S.W.2d 474 (1977).
However, since it is
possible that the court denied Lipton probation because he was a
PFO II offender (in reliance on the Department of Corrections’s
recommendation), we vacate the court’s order and remand for the
court to reconsider Lipton’s motion for prerelease probation in
light of our decision in Commonwealth v. Meyers, 8 S.W.3d 58.
For the reasons stated above, we vacate the order of
the Jefferson Circuit Court and remand for proceedings consistent
with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ronald G. Lipton, Pro Se
Frankfort, Kentucky
A. B. Chandler, III
Attorney General
John E. Zak
Assistant Attorney General
Frankfort, Kentucky
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