Hayes v. Commonwealth

660 S.W.2d 5, 1983 Ky. LEXIS 304

• Court: Kentucky Supreme Court
• Decided: November 23, 1983
• Status: Published

Opinions

VANCE, Justice.

This is an appeal from a judgment which enhanced appellant’s sentence of two years imprisonment for knowingly receiving stolen property to five years upon conviction as a persistent felon, second degree. The Court of Appeals affirmed the judgment, and we granted discretionary review. We affirm the decision of the Court of Appeals.

Appellant committed the offense of knowingly receiving stolen property on July 1, 1981. He was only 20 years old at that time. He reached the age of 21 years on July 13, 1981. He was indicted on October 19,1981. Appellant contends his conviction as a persistent felony offender must be reversed because he was less than 21 years of age when he committed the underlying offense.

K.R.S. 532.080(2) provides:

“A persistent felony offender in the second degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of one (1) previous felony .... ”

Appellant argues compellingly and with logic that in fulfilling the purposes for which the persistent felony offender legislation was enacted, the requirement that the accused be at least 21 years old must necessarily relate to the time the offense was committed rather than the time of trial. We concede the merit of the argument as a matter of policy.

The difficulty is that the language of the statute is plain and unambiguous. A person cannot be a persistent felony offender until he stands convicted of a second felony, and the statute provides that he is a persistent felony offender if at that time he is more than 21 years old. It makes no mention of age at the time of the commission of the second felony.

Appellant would have us rewrite the statute to read in effect that a person is a persistent felony offender in the 2nd degree who stands convicted of a felony committed after he became 21 years of age if he had been convicted previously of a felony.

We cannot take such liberties in construing a statute when the words used in the statute are not ambiguous, and the construction of the plain meaning of the words as written in the act does not reduce it to an absurdity.

The General Assembly may have simply intended that no one under the age of 21 years at the time of trial should be weighed down with an enhanced sentence as a persistent felony offender. If it is the intention of the legislature that no one who is less than 21 years of age at the time of the commission of a second felony should be proceeded against as a persistent felony offender, that intention should be expressed by the legislature in the statute.

The Judgment is affirmed.

GANT, AKER, STEPHENSON and VANCE, JJ., concur. WINTERSHEIMER, J., did not sit. LEIBSON, J., dissents by separate opinion, in which STEPHENS, C.J., joins.