Request By:
Honorable Richard H. Nash, Sr.
Nash, Gildersleeve, Nash
235 South Fifth Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert W. Hensley, Assistant Attorney General
This is in response to your letter of June 16, 1977, which we received on June 17, 1977 in which you ask two (2) questions relative to a person who has been convicted of an offense or who has pleaded guilty to an offense classified as a class A, B or C felony when the commission of that offense involved the use of a weapon from which a shot or projectile could be fired and the ineligibility of such a person for probation, shock probation or conditional discharge under KRS 533.060(1). You ask:
1. Would an armed robbery conviction where it is conceded by all that the weapon used was a water pistol capable only of discharging water be such as to prohibit the circuit judge from granting probation or shock probation?
2. Would an accomplice or a person being convicted of complicity to such crimes as armed robbery be prohibited by KRS 533.060, even though he never possessed the gun or knew that a gun was going to be used by someone else in the perpetration of the crime? Examples of such a person might be a person who drove the getaway car from the scene of an armed robbery although he did not know that a gun had been used in the robbery. Another example might be where a person was present when his companion drew a pistol and committed armed robbery and the complicity of the second person involved only the aiding in getting the person displaying the weapon out of the building and away from the scene.
Your first question is whether or not, under KRS 533.060(1) a person convicted of armed robbery where it is conceded by all that the pistol used was a water pistol capable only of discharging water would be eligible for probation, shock probation or conditional discharge?
KRS 533.060(1) provides: "When a person has been convicted of an offense or has entered a plea of guilty to an offense classified as a class A, B, or C felony and the commission of such offense involved the use of a weapon from which a shot or projectile may be discharged that is readily capable of producing death or other serious physical injury, such person shall not be eligible for probation, shock probation or conditional discharge. "
We are of the opinion that the robber using the water pistol would be eligible for probation, shock probation or conditional discharge.
We note that KRS 533.060(1) does not incorporate the phrase "deadly weapon. " However, had it used that phrase we are of the opinion that the robber with the water pistol would have been ineligible for probation, shock probation or conditional discharge. In Kennedy v. Commonwealth, Ky., 544 Kennedy v. Commonwealth, Ky., 544 S.W.2d S.W2d 219 (1976, reh. den. 1977) the appellant had been convicted of a violation of KRS 515.020(1)(b). That statute provided: "A person is guilty of a robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he: (b) Is armed with a deadly weapon. " (Our emphasis). In Kennedy the pistol which the accused used was unloaded and it had a broken firing pin. The Supreme Court noted that under KRS 500.080(4) a deadly weapon was a firearm ". . . from which a shot, readily capable of producing death or other serious physical injury, may be discharged. . ." However, based upon the Court's finding of legislative intent based upon the identity of section 1605(1)(b) (see Kentucky Penal Code, Final Draft, November, 1971) and KRS 515.020(1)(b) and the Commentary to § 1605(b)(1) to retain the decision of
Merrit v. Commonwealth, Ky., 386 S.W.2d 727 (1965) - any object can be a deadly weapon if intended by its user to convince a victim that it is deadly and if the victim is in fact convinced - the Court, in Kennedy, found that the unloaded pistol with the broken firing pin was a "deadly weapon. "
We mention the Kennedy decision because we think it is noteworthy that KRS 533.060(1) does not use the phrase "deadly weapon" in its exclusion of those eligible for probation, shock probation or condition discharge. In
Commonwealth of Kentucky ex rel. Ed W. Hancock, Attorney General vs. Ruckelshaus, 362 F. Supp 360 (W.D. Ky., 1973) it is stated at p. 365: "[W]here a particular provision appears in a statute, the failure to include that same requirement in another section of the statute will not be deemed to have been inadvertent." We think Hancock vs. Ruckelshaus is applicable here even though we are talking about different chapters and not just sections within one statute since we are talking about Kentucky's new penal code enacted as a whole effective. January 1, 1975.
Concerning your question on a defendant's eligibility for probation, shock probation or conditional discharge when the defendant has pleaded guilty to or has been convicted of an offense classified as a class A, B or C felony and the commission of such offense involved the use of a weapon from which a shot or projectile may be discharged -- but it was the defendant's accomplice that had the gun unbeknownst to the defendant -- we note that KRS 533.060 uses the phrase "involved the use of a weapon. . . ." We also note that the complicity statute, KRS 502.020, would make the defendant guilty of the same offense as the accomplice who actually had the gun. Therefore when viewed in this light it would seem that the defendant -- whose accomplice had the weapon unbeknownst to the defendant -- would be ineligible for probation, shock probation or conditional discharge.
However, on the other hand, we are also aware that the Kentucky Penal Code has as an avowed purpose the encouragement of non-imprisonment dispositions of offenders. Thus in the COMMENTARY (1974) - see the CRIMINAL LAW OF KENTUCKY, ANNOTATED 860 (1975) - to KRS 533.010 it is stated:
Subsection (2) [of KRS 533.010] attempts to encourage a more liberal use of non-imprisonment dispositions of offenders by changing the initial focal point in the trial court's consideration of the matter of sentencing. Presently, judges start with imprisonment in mind and look for affirmative reasons for probation or some other disposition. This subsection seeks to start the sentencing process with probation or conditional discharge as the desired disposition with a movement from there to a sentence of imprisonment only upon a finding of some particular reason justifying the latter.
Therefore since KRS 533.060(1) did not specifically deal with the problem of the defendant whose accomplice had the weapon unbeknownst to the defendant and did not attempt to discuss the ramifications of the complicity statute to this ineligibility KRS 533.060(1) seems to be out of line with the quote from the COMMENTARY (1974) to KRS 533.010 where it comes to that class defendant you mention in your letter.
Therefore in the final analysis it would seem that the question of the ineligibility of the defendant for probation, shock probation or conditional discharge under KRS 533.060 when the defendant's accomplice had the weapon unbeknownst to the defendant is a question to be resolved by the courts.