Commonwealth v. Vincent , 70 S.W.3d 422 ( 2002 )

JOHNSTONE, Justice.

Appellant, Teresa Fay Vincent, was convicted of murder and sentenced to twenty-five years’ imprisonment. The sole issue on appeal is whether the domestic violence exemption of KRS 533.060(1) exempts Yin-cent from the terms of the violent offender statute of KRS 439.3401. We hold that it does not and reverse the trial court on this issue.

On September 9, 1998, Vincent shot and killed her ex-husband, Bryan Hitchcock. According to Vincent, she went to Hitchcock’s home because she caught him in a lie and wanted to talk with him about it. She went armed with a handgun. Hitchcock was not home, but his roommate, Donald Lawery, was. Lawery let Vincent in to wait for Hitchcock. While waiting for Hitchcock to return, Vincent scrolled through Hitchcock’s caller i.d. and found Sheila Salzman’s number listed there. Salzman was Hitchcock’s girlfriend. Vincent then called Salzman and left the message, “You have something of mine we need to discuss.”

When Hitchcock returned, Vincent questioned him about a trip he was planning to take to Florida and asked if she could go with him. Hitchcock told her that she could not go. The two argued and Vincent started to cry. During the argument, Vincent found a card sticking out of Hitchcock’s luggage. She removed the card and discovered that it was signed, “Love Bryan.” This discovery upset her further. At this point, Vincent’s testimony differs from Lawery’s testimony.

According to Lawery, Vincent sat down on a couch and began playing with Hitchcock’s camera. After Vincent dropped the camera on the floor, Hitchcock reached down to pick it up. As he did so, Lawery testified that Vincent pulled the handgun from her purse and shot Hitchcock.

According to Vincent, the handgun fell out of her coat and slipped in between the cushions of the couch. As she retrieved the gun from the couch, Hitchcock asked her what she had. Vincent showed him the gun and said, “This.” Vincent testified that she accidently pulled the trigger while showing Hitchcock the gun. The resulting fatal shot hit Hitchcock in the chest.

After Vincent was convicted, the trial court held a hearing to determine whether Vincent was a victim of domestic violence for the purposes of KRS 439.3401 and KRS 533.060. Vincent presented sufficient evidence to support a finding that she had been a victim of domestic abuse and that Hitchcock was the victimizer. This is not in dispute. What is in dispute is what is required to show that one is entitled to the domestic violence exemption of KRS 439.3401(5).

Vincent argues that the exemption potentially applies to any defendant who commits a violent offense against a person who, contemporaneously or previously, committed acts of domestic violence against the defendant. That is, Vincent argues that the application of the exemption turns on a person’s status as a victim of domestic violence. The Commonwealth argues that the exemption only applies when the domestic violence is involved in the underlying offense. In other words, the Commonwealth argues that there has to be a connection between the defendant’s violent offense at issue and the history of domestic violence between the defendant and the victim. The plain language of the statute supports the Commonwealth’s argument.

KRS 439.3401(3) states that a person, “who has been convicted of a capital offense or Class A felony with a sentence of a term of years or Class B felony who is a violent offender¹ shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed.” KRS 439.3401(5) creates an exemption to this requirement:

This section shall not apply to a person who has been determined by a court to have been a victim of domestic violence or abuse pursuant to KRS 533.060 with regard to the offenses involving the death of the victim or serious 'physical injury to the victim. The provisions of this subsection shall not extend to rape in the first degree or sodomy in the first degree by the defendant.

(Emphasis added). The phrase “with regard to the offenses involving the death of the victim or serious physical injury to the victim” dictates that there be some connection or relationship between the domestic violence suffered by the defendant and the underlying offense committed by the defendant.

“Regard” means “an aspect to be taken into consideration or significant to matter in question.” Webster’s Third New International Dictionary, 1911 (1966) (emphasis added). “Regard” is synonymous with “respect,” which means “to have regard or reference to: to relate to: be concerned with ....” Id. at 1934. Thus, the statute requires that there be a relationship between the domestic violence or abuse and the underlying offense. Proof of history of domestic violence between the defendant and the victim is not, by itself, sufficient to trigger the statute’s parole exemption. If the General Assembly had so intended, it could have said so. See c.f. S.C.Code Ann. § 16-25-90, which expressly provides that a defendant who commits an offense against a household member is eligible for parole after serving 25 percent of her sentence when the defendant shows that the household member has a history of inflicting domestic violence upon the defendant.

“[P]arole is a matter of legislative grace and ... the general assembly may impose such limitations, restrictions and conditions as it deems best for society.” Willard v. Ferguson, Ky., 358 S.W.2d 516 (1962). As such, it is not for this Court to determine the wisdom of the General Assembly’s exercise of its power in this area. Vincent argues that the construction of the statute we adopt here is not rational in light of KRS 533.060(1), which states in pertinent part:

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 the 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, the person shall not be eligible for probation, shock probation, or conditional discharge, except when the person establishes that the person against whom the weapon was used had previously or was then engaged in an act or acts of domestic violence and abuse as defined in KRS 403.720 against either the person convicted or a family member as defined in KRS 403.720 of the person convicted.

This statute creates — for defendants who are also victims of domestic violence— an unconditional exception to the statute’s general eligibility requirements for probation, shock probation, or conditional discharge. Unlike the parole exemption of KRS 439.3401(5), application of the probation exception of KRS 533.060(1) turns on the defendant’s status as a victim of domestic violence. The probation exception does not require the defendant to show any connection between the commission of an offense and the history or occurrence of domestic violence between a defendant and a violent crime victim. Because the probation exception applies to defendants who committed a violent offense, Vincent argues that it is just not reasonable that the General Assembly meant to limit the exemption for parole eligibility to those defendants whose violent crime is somehow connected or related to the history or occurrence of domestic violence between the defendant and the victim.

Probation, like parole, is purely a matter of legislative grace. White v. Commonwealth, Ky.App., 611 S.W.2d 529, 531 (1980). Whether the distinction — for defendants who are also victims of domestic violence — between the exception for probation eligibility set forth in KRS 583.060(1) and the exemption for parole eligibility set forth in KRS 439.3401(5) is reasonable or logical is not for us to decide. Nor can it affect our construction of what the General Assembly clearly states in KRS 439.3401(5), i.e., that in order to be eligible for the exemption, a defendant, who is also the victim of domestic violence, must establish a connection or relationship between the domestic violence and the violent offense for which the defendant stands convicted. See Land v. Commonwealth, Ky., 986 S.W.2d 440, 442 (1999) (“Parole is simply a privilege and the denial of such has no constitutional implications.”).

Finally, in Springer v. Commonwealth, Ky., 998 S.W.2d 439 (1999), we compared KRS 533.060 with KRS 439.3401 and concluded:

Thus, the legislature determined, for whatever reason, that the exemption from the probation or conditional discharge restrictions in KRS 533.060(1) applies whether the domestic violence and abuse occurred previous to the offense or at the time the offense was committed; but the exemption from the parole restrictions in KRS 439.3401 applies only if the domestic violence and abuse was “involved” in the offense.

Id. at 457.

At the time we decided Springer, KRS 439.3401(2) and (3) only restricted parole eligibility. The 2000 General Assembly amended KRS 439.3401(2) and (3) so that the stricter “involved” requirement applies to probation as well as parole eligibility for violent offenders. 2000 Ky. Acts, Ch. 401 § 8. Apparently, the General Assembly had Springer in mind when it amended KRS 439.3401(2) and (3). This is a strong indication that the General Assembly intended to adopt Springer’s interpretation of “involved” contained in KRS 439.3401(5). See, e.g., Falender v. Hankins, 296 Ky. 396, 177 S.W.2d 382, 383 (1944) (It is a “well-settled rule of statutory construction, that when a statute or clause, or provision thereof, has been construed by the court of last resort of a state, and the statute has been substantially re-enacted, the Legislature will be deemed to have adopted such construction. ...”).

Vincent offered absolutely no evidence that connected the shooting with the history of domestic violence between Hitchcock and her. Vincent’s version of the events was that the shooting was accidental. The Commonwealth’s eyewitness testified that the shooting was deliberate and unprovoked. While we cannot state definitively what is necessary to show that a defendant is eligible for the domestic violence or abuse exception of KRS 439.3401(5), we can state and do hold that a prior history of domestic violence between a violent crime victim and the criminal defendant who perpetrated the violent offense does not, in and of itself, make the defendant eligible for the parole exemption of KRS 439.3401(5).

For the foregoing reasons, the judgment of the Jefferson Circuit Court is reversed and this case is remanded for re-sentencing in conformance with this opinion.

LAMBERT, C.J.; COOPER, GRAVES, and WINTERSHEIMER, JJ„ concur. KELLER, J., dissents by separate opinion, with STUMBO, J., joining that dissent.

1 . "[V]ioleiit offender means any person who has been convicted of or pled guilty to the commission of a capital offense, Class A felony, or Class B felony involving the death of the victim or serious physical injury to a victim, or rape in the first degree or sodomy in the first degree of the victim.” KRS 439.3401(1).