APPEAL FROM NICHOLAS CIRCUIT COURT. HONORABLE JAY DELANEY, JUDGE. ACTION NO. 12-CR-00001.
BRIEF FOR APPELLANT: G. Scott Hayworth, Lexington, Kentucky.
BRIEF FOR APPELLEE: Jack Conway, Attorney General of Kentucky, Matthew R. Krygiel, Assistant Attorney General, Frankfort, Kentucky.
BEFORE: CAPERTON, COMBS, AND THOMPSON, JUDGES. CAPERTON, JUDGE, CONCURS. THOMPSON, JUDGE, CONCURS AND FILES SEPARATE OPINION.
Steven Stull appeals the judgment of the Nicholas Circuit Court convicting him of first-degree sexual abuse and sentencing him to one year of imprisonment. After our review, we affirm.
On January 5, 2012, Stull was indicted on one count of sexual abuse in the first degree, a Class D felony carrying a penalty range of one to five years of imprisonment. The crime was committed against his seventeen-year-old stepdaughter, a person with whom Stull was in a position of special trust, an element of the crime with which he was charged. At arraignment, he pleaded not guilty.
On July 2, 2012, Stull accepted a plea bargain offered by the Commonwealth. Pursuant to the terms of the agreement, Stull was to enter a guilty plea in exchange for the Commonwealth's recommendation to the court that he be sentenced to one-year imprisonment; the Commonwealth agreed to take no position with regard to probation.
Stull entered his plea, and on November 13, 2012, the trial court's judgment of conviction was entered. The court sentenced Stull in accordance with the Commonwealth's recommendation and ordered him to register as a convicted sex offender and to avoid contact with the victim. The court concluded that Stull was ineligible for probation pursuant to the provisions of Kentucky Revised Statute[s] (KRS) 532.040 because he qualified as a " violent offender" pursuant to the provisions of KRS 439.3401(1)(e). This appeal followed.
On appeal, Stull contends that the trial court erred by concluding that he is ineligible for probation. We disagree.
The provisions of KRS 532.047 prohibit probation for anyone designated as a violent offender under the provisions of KRS 439.3401. A violent offender is defined as " any person who has been convicted of or pled guilty" to " the commission or attempted commission of a felony sexual offense described in KRS Chapter 510." The crime of first-degree sexual abuse is codified in Chapter 510 at KRS 510.110. Thus, one who is convicted of first-degree sexual abuse qualifies as a violent offender pursuant to the provisions of KRS 439.3401 and is, therefore, ineligible for probation.
Nonetheless, Stull contends that the provisions of KRS 532.045 authorize the trial court to consider probation as a sentencing option even though he was convicted of sexual abuse in the first-degree. KRS 532.045 provides that those convicted of certain enumerated sex offenses (including promoting prostitution, rape in the second degree, and sodomy in the second degree) are ineligible for probation under circumstances indicating that the crime: was committed against a minor by the use of force; involved bodily injury to the minor; or involved a kidnapping or the violation of a position of special trust. Since first-degree sexual abuse is not among the offenses enumerated in this provision, Stull reasons that the legislature must have intended that probation remain a viable sentencing option.
An identical argument was addressed and rejected by a panel of this court in an unpublished opinion, Howard v. Commonwealth, 2013 WL 3105227 (Ky. App. 2013) (2012-CA-000304-MR). In that case, the court disagreed with the defendant's construction of the statute not only because of the obvious flaw inherent in its logic but also because it led to an absurd result. While we are not bound by the ...