NATHAN ALAN ABNER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 22, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000257-MR
NATHAN ALAN ABNER
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 03-CR-00306
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI, AND MCANULTY, JUDGES.
GUIDUGLI, JUDGE:
Nathan Alan Abner appeals the Fayette Circuit
Court’s order which denied his motion for shock probation
following his plea to trafficking in marijuana over five pounds
with a firearm (KRS 218A.1421(4a) enhanced under KRS 218A.992).
The circuit court denied his motion based upon KRS 533.060 which
prohibits shock probation to anyone found guilty of a class A,
B, or C felony offense and the commission of the offense
involved the use of a weapon from which a shot or projectile may
be discharged.
The Commonwealth argues that since Abner pled
guilty to the enhanced charge, he is ineligible for shock
probation pursuant to KRS 533.060.
We disagree, thus we reverse
and remand.
Abner was indicted on March 18, 2003.
The indictment
charged the following three offenses:
THE GRAND JURY CHARGES:
COUNT 1:
On or about the 23rd of January 2003, in
Fayette County, Kentucky, the above named
Defendant trafficked in over five pounds of
marijuana, while in possession of a firearm;
COUNT 2:
On or about the 23rd day of January
2003, in Fayette County, Kentucky, the above
named Defendant knowingly and unlawfully
planted, cultivated or harvested marijuana,
with the intent to sell or transfer it,
while in possession of a firearm;
COUNT 3:
On or about the 23rd day of January
2003, in Fayette County, Kentucky, the above
named Defendant possessed objects used to
introduce marijuana into the body and
possessed items used in cultivating, growing
and planting marijuana;
Following arraignment, pre-trial and several status
hearings, Abner appeared in court with his attorney on June 17,
2003, and entered a guilty plea to Count 1 of the indictment
(trafficking in marijuana over 5 lbs. with a firearm), Count 3
of the indictment (possession of drug paraphernalia), and an
amended charge to Count 2 of the indictment (cultivation of
marijuana less than 5 plants – a misdemeanor offense).
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The plea
agreement included a recommendation by the Commonwealth of ten
years on Count 1 and twelve months on Counts 2 and 3.
Final
judgment and sentence of imprisonment was entered on July 22,
2003.
Abner requested probation but the court denied probation
due to the seriousness of the offense and the amount of
marijuana involved.
However, during the sentencing hearing, the
trial judge did state that she would consider shock probation at
a later date.
The court even suggested that a motion for shock
probation should be filed in approximately 120 days.
No appeal
of the July 22, 2003, judgment was filed.
Abner filed a motion for shock probation on November
24, 2003.
The Commonwealth filed a response in which it argued,
for the first time, that pursuant to KRS 533.060 Abner was not
eligible for shock probation.
The Fayette Circuit Court denied
Abner’s shock probation motion on December 16, 2003, based upon
KRS 533.060.
Abner filed a motion to reconsider that order and
argued that KRS 533.060 was not applicable because he had not
used a weapon to commit the felony charged.
The court denied
his motion to reconsider and this appeal followed.
On appeal Abner contends that he did not use any
weapons and as such, KRS 533.060 is not applicable in this case.
He also argues that KRS 533.060 was not mentioned during plea
negotiations nor at either the plea hearing or at the sentencing
hearing.
The Commonwealth argues that since Abner pled guilty
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to the trafficking charge and accepted the enhancement penalty
under KRS 218A.992 that he admitted the required nexus between
the possession of the firearm and the use of it.
See
Commonwealth v. Montague, Ky., 23 S.W.3d 629 (2000).
In
Montague, the Supreme Court of Kentucky held that “when it
cannot be established that the defendant was in actual
possession of a firearm or that a firearm was within his or her
immediate control upon arrest, the Commonwealth must prove more
than mere possession.
It must prove some connection between the
firearm possession and the crime.”
Id. at 633.
Thus, the
Commonwealth contends that since Abner pled guilty to possession
of the firearm while trafficking he admitted the nexus required
to assume that he also used the firearm during the commission of
the crime.
We do not accept this leap in statutory
construction.
First, it should be pointed out that when arrested
Abner was not in actual possession of either the marijuana or
the firearms seized with the marijuana.
The police had
responded to Abner’s apartment due to an attempted break-in.
Once there, the police found the contraband that led to the
offenses charged.
Under these circumstances, an argument could
have been made that the enhancement penalties were not
applicable.
See Montague, supra; Houston v. Commonwealth, Ky.,
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975 S.W.2d 925 (1998).
However, that issue is not before this
Court.
As to the motion for shock probation, we believe
Haymon v. Commonwealth, Ky., 657 S.W.2d 239 (1983), and Darden
v. Commonwealth, Ky., 52 S.W.2d 574 (2001), are controlling.
Haymon, the Supreme Court of Kentucky distinguished the terms
“possession” and “use” as follows:
The Commonwealth contends that
possession of a weapon involves its use;
that the intent of the General Assembly was
to deter the involvement or presence of
weapons in the commission of crimes.
Admittedly, the word “use” is subject to
such a construction.
On the other hand, the General Assembly
took pains to distinguish between being
“armed” with a weapon and the “use of a
weapon” in the burglary statute. The
offense can be committed by one who is only
“armed” with a deadly weapon but when
dangerous instruments are involved there
must be a showing of their use or threatened
use. The movant contends, therefore, that
mere possession of a weapon constitutes
being “armed” with a weapon but “use” of a
weapon contemplates that it be employed in
some manner in the commission of an offense.
This too is a plausible explanation of the
meaning of the word “use.”
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 be given to the phrase “use of a
weapon” and for that reason the movant is
entitled to the benefit of the ambiguity.
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In
Because there was not showing that a
weapon was used in any manner to further the
commission of the offense, the trial court
was in error in his belief that probation
was precluded by the statute. This does not
mean, of course, that probation should have
been granted but only that it should have
been granted or denied upon the basis of
consideration of the merits of all other
relevant factors.
The decision of the Court of Appeals is
reversed, and the case is remanded for
further consideration of the motion for
probation.
Haymon, 657 S.W.2d at 240.
In Darden, our Supreme Court quoted extensively from
the Haymon opinion and then added:
We believe the terms “possession of a
weapon” and “use of a weapon” are two
entirely different concepts. Further,
doubts in the construction of a penal
statute are to be resolved not only in favor
of lenity, but also against a construction
that would produce extremely harsh or
incongruous results. Commonwealth v.
Colonial Stores, Inc., Ky., 350 S.W.2d 465,
467 (1961). Interpreting these terms as one
in the same would yield extremely harsh and
disproportionate results for the trying of
juvenile cases and is clearly not what the
legislature intended. This rule of
construction, in itself, mandates the
reversal of Darden’s conviction[.]
Darden, 52 S.W.3d at 577.
While the circuit court refused to grant probation in
this case based upon the seriousness of the allegations and the
amount of marijuana involved, it was not precluded from
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considering probation, shock probation or conditional discharge
solely on the basis of KRS 533.060.
As such, the order of the
Fayette Circuit Court denying Abner’s motion for shock probation
is reversed and the case remanded for further consideration of
the motion for shock probation.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jon Stephen Larson
Lexington, KY
Gregory D. Stumbo
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, KY
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