Com. v. Lundergan, 91-SC-748-DG

• Decision Date: 18 February 1993
• Docket Number: No. 91-SC-748-DG,91-SC-748-DG
• Citation: 847 S.W.2d 729
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Gerald LUNDERGAN, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 729

847 S.W.2d 729

COMMONWEALTH of Kentucky, Appellant, v. Gerald LUNDERGAN, Appellee.

No. 91-SC-748-DG.

Supreme Court of Kentucky.

Feb. 18, 1993.

Chris Gorman, Atty. Gen., David A. Sexton, Ian G. Sonego, Asst. Attys. Gen., Frankfort, for appellant.

Anita M. Britton, Stoll, Keenon & Park, Lexington, William E. Johnson, J. Guthrie True, Stoll, Keenon & Park, Frankfort, for appellee.

CAROLYN BRATT, Special Justice.

This Court granted discretionary review to determine the proper classification of an undesignated, non-penal code, criminal offense when the prescribed penalty does not satisfy the Penal Code's definition of either a felony or a misdemeanor. The classification of the offense is dispositive in this case because the indictment was issued more than one year after the date of the appellee's conduct. If the offense is properly denominated a misdemeanor, prosecution of the appellee was time-barred by KRS 500.050.

The appellee is a former member of the Kentucky House of Representatives. He was convicted in Franklin Circuit Court of violating Section 6.775(7) of the Legislative Ethics Act, KRS 6.750 et seq. At the time of the appellee's conviction, the relevant penalty statute, KRS 6.990(11), did not designate his offense as either a felony or a misdemeanor. ¹ It merely provided that:

Any person who violates KRS 6.775 ... (7) ... shall be confined in the penitentiary for not less than six (6) months nor more than two (2) years, or fined not less than two hundred dollars ($200) nor more than one thousand dollars ($1,000), or both....

The Franklin Circuit Court characterized this undesignated offense as felony because KRS 431.060(1) provides that:

Offenses punishable by ... confinement in the penitentiary, whether or not a fine or other penalty may also be assessed, are felonies.

The Court of Appeals reversed the appellee's conviction because it found that the offense was a misdemeanor. The Court of Appeals relied, in part, on the classification of felony offenses contained in KRS 532.020(1). Under that statute, an offense created outside the Kentucky Penal Code is classified as a felony only when the minimum sentence is at least one year. The Court of Appeals also embraced the reasoning employed in Commonwealth v. McClure, Ky.App., 593 S.W.2d 92 (1979), that when a statute fails to clearly indicate the type of criminal offense it has created, the offense is treated as a misdemeanor. We affirm the decision of the Court of Appeals because it is in harmony with the legislature's intent and with the principles of fairness embodied in the rule of lenity.

When the Legislature enacted the Kentucky Penal Code in 1974, it clearly expressed the intention to treat penal code and non-penal code offenses consistently. See, KRS 532.005. In order to achieve such a result, only the Penal Code's definitions of felony and misdemeanor offenses contained in KRS 500.080(5) and (10) and the Penal Code's scheme for classifying felonies and misdemeanors found in KRS 532.020 can properly serve as the basis for disposing of this case. Any reliance on the pre-penal code definitions of felony and misdemeanor offenses contained in KRS 431.060 would be at odds with the Legislature's intention to achieve consistency in the treatment of penal code and non-penal code offenses.

It is true that the penalty for the appellee's offense (not less than six months and not more than two years of confinement in a penitentiary) does not precisely meet the Penal Code's definition of either a felony (at least one year in the custody of the Corrections Cabinet) or a misdemeanor (imprisonment for not more than one year). KRS 500.080(5) and (11). It is also true that before the adoption of the Penal Code, the place of confinement was the sole criteria for distinguishing between a felony (in a penitentiary) and a misdemeanor (other than in a penitentiary). KRS 431.060. Today, however, the length of the sentence, not the place of confinement, provides the key distinction between a felony and a misdemeanor under the Penal Code.

Therefore, in resolving the ambiguity created by KRS 6.990(11) under the Penal Code, it is no longer appropriate to accord any special importance to the use of the word penitentiary. Instead, the minimum permissible sentence (six months) compels the classification of the offense as a misdemeanor because a minimum sentence of one year is now the sine qua non of the Penal Code's definition of a felony.

Today's decision is supported by the view expressed in Commonwealth v. McClure, supra, that an undesignated, non-penal code offense with a penalty of a "prison sentence of not more than five (5) years" should be treated as a misdemeanor, id. at 94, but it is at odds with our decision in Commonwealth v. Davis, Ky., 728 S.W.2d 532 (1987). The Davis decision, without citation, departed from the McClure rationale. In Davis, this Court held that an Ohio criminal conviction was a felony conviction for purposes of Kentucky's persistent felony offender statute because the maximum possible sentence permitted under the statute (not less than six months nor more than five years in prison) determines whether the crime is a felony or a misdemeanor. Id. at 532-533.

Technical distinctions could be drawn between the Court's decision in Davis and the view expressed in McClure that when a statute does not clearly indicate the type of offense the court will treat it as a misdemeanor. However, the Davis holding represents not only a fundamental departure from the McClure rationale, but it stands in irreconcilable conflict with today's decision. Therefore, the portion of the Davis decision which held that the greatest possible punishment allowed by a criminal statute determines whether the crime is a felony or a misdemeanor is overruled.

The Legislature's failure to expressly designate the offense of which the appellee was convicted as either a felony or a misdemeanor also supports the decision in this case. See, 6.990(11). The absence of the felony designation is of critical importance because in the same statute, the Legislature evidenced the ability to expressly denominate other offenses as felonies. See, KRS 6.990(4). When a legislature demonstrates the ability to particularize some offenses in a statute as felonies, it is then highly cogent to treat the omission of the felony designation for an offense created elsewhere in the same statute as a clear indication of that legislature's intent to treat the undesignated offense as a misdemeanor.

Kentucky case law has long recognized that when there is an ambiguity or conflict in a penal statute, the "rule of lenity" is applicable. See, Boulder v. Commonwealth, Ky., 610 S.W.2d 615 (1980). In Commonwealth v. Colonial Stores, Ky., 350 S.W.2d 465, 467 (1961), we stated that doubts about the meaning of a penal statute should be resolved:

in favor of lenity and against a construction that would produce extremely harsh or incongruous results or impose punishment totally disproportionate to the gravity of the offenses.

The notions of fairness which lie at the heart of the rule of lenity can only be satisfied in this case by classifying the offense as a misdemeanor.

Although the penal statute at issue does spell out the range of punishment and the place of confinement, the statute does not expressly and unambiguously warn a potential violator that her or his actions constitute a felony offense. Moreover, an inherent ambiguity exists whenever a statute creates an undesignated criminal offense with a prescribed range of penalties that does not fit squarely within the relevant definitions of either a felony or a misdemeanor. It has taken three courts to resolve this ambiguity. Finally, a felony conviction is an extremely harsh penalty to impose without clear and unambiguous notice. See, e.g., Ky. Const. 145 (felon forfeits the right to vote) and 150 (felon forfeits the right to run for public office). Application of the rule of lenity is not only appropriate in this case but compels a finding that the offense is a misdemeanor.

For the foregoing reasons, the opinion of the Court of Appeals is affirmed.

STEPHENS, C.J., not sitting.

REYNOLDS, J., concurs.

COMBS and WINTERSHEIMER, JJ., concur in separate opinions.

LAMBERT, J., dissents in a separate opinion in which LEIBSON and SPAIN, JJ., join.

COMBS, Justice, concurring.

I concur with Special Justice Bratt's opinion affirming the Court of Appeals.

The question at the appellate level is what was he convicted of--misdemeanor or felony? A review of the trial court record, particularly the sentencing phase instruction and the verdict of the jury convinced me that it was the intention of the jury to find him guilty of a misdemeanor. That pivotal verdict is as follows:

We, the jury, fix the defendant's punishment at NONE (period of confinement) and/or a fine of $1,000.

This punishment represents a legal sentence under the statute defining the offense. I must conclude that the conduct constituted a misdemeanor, subject to the statute of limitations, and that the judgment and sentence may not be imposed.

WINTERSHEIMER, Justice, concurring.

I concur with the result reached by the majority opinion but wish to express my views separately. However, I do not believe that Commonwealth v. Davis, Ky., 728 S.W.2d 532 (1987) should be overruled.

The Court of Appeals correctly reversed the judgment of conviction because the penalty provision applicable to the offense of which Lundergan was convicted does not specify whether it was a felony or a misdemeanor. When there is doubt in the construction of a penal statute, it will be resolved against a construction that would produce an extremely harsh or incongruous result. Boulder v. Commonwealth, Ky., 610 S.W.2d 615 (1980); Commonwealth v. Colonial Stores, Ky., 350 S.W.2d 465 (1961).

It has long been recognized in Kentucky that where there is a conflict or ambiguity in penal statutes, the applicable rule...