The Richmond Register

July 5, 2013

Appeals court: Felony sex offenders ineligible for probation

By Sarah Hogsed
Register News Writer

MADISON COUNTY — A recent Kentucky Court of Appeals decision in a Madison County criminal case addressed the issue of whether, under state law, a sex offender can be sentenced to probation.

Michael R. Howard was convicted of first-degree sexual abuse in 2011. He pleaded guilty to molesting a child as part of a mediation plea agreement, according to court documents.

Howard was sentenced to three years in prison for the Class D felony, which is the lowest class felony in Kentucky courts.

Madison Circuit Court Judge William G. Clouse ruled at Howard’s sentencing that he was a “violent offender” and not eligible for probation.

Howard appealed his sentence, stating Clouse erred by not considering probation or conditional discharge as a sentencing option for a Class D offense.

Before addressing the issue of whether state law declares all felonious sex offenders as “violent offenders” and ineligible for parole, the appeals court pointed out that Howard’s plea was not conditional.

“However, a plea agreement is a binding contract between the Commonwealth and the defendant,” the ruling stated. “... Because Howard was sentenced in accord with the plea agreement, he cannot now complain of the sentence he received.”

The appeals court did review Howard’s claim that he should have been considered for alternate sentencing but clearly stated that it lacked merit.

The same issue Howard brought up also was a point of contention in a 2011 high-profile case involving a Madison Central High School employee convicted of the third-degree rape and third-degree sodomy of a student.

Lynda Chase claimed the relationship was consensual, but the student was underage. Third-degree rape and sodomy do not involve force but rather the victim’s inability to consent to sexual activity.

Chase’s attorney, Jim Baechtold, argued that under state law, a Class D felon is eligible for home incarceration. He asserted that Chase, who has been paralyzed since age 5, was not receiving the medical care she needed in jail and requested shock probation.

Shock probation is a type of early release for first-time offenders.

Clouse ruled that a different law clearly stated that all sex offenders are considered violent offenders, and violent offenders are not allowed to have their sentences probated.

In another case, Madison Circuit Judge Jean C. Logue ruled that a former Madison Southern High School coach and teacher, Joey Tate, also was ineligible for probation although his conviction did not involve physical contact with his victim. Tate was convicted of using an electronic communications system to procure a minor for sex, also a Class D sex offense.

The appellate court took the same line of reasoning as the two local judges when considering Howard’s assertion he shouldn’t have been considered a violent offender for a Class D crime. The justices agreed with the Madison Circuit Court’s interpretation of state law that anyone convicted of felony sex crimes are violent offenders, and therefore, cannot receive probated sentences.

However, the June opinion is labeled “Not To Be Published,” meaning the appellate court’s ruling is specific to Howard’s case and cannot be used as precedent in other future cases or appeals.

Howard has the option of appealing the ruling to the Kentucky Supreme Court.

Sarah Hogsed can be reached at shogsed@richmondregister.com or 624-6694.