A panel of federal appeals court judges has ruled a former Kentucky State Police trooper was improperly convicted of carrying his gun while committing a drug crime.
The three-judge panel said the fact that Michael Fred Pennington was wearing his service handgun did not further or facilitate his crime when he gave a woman a pain pill and solicited her to have sex with him.
The gun conviction added five years to Pennington's 14-month sentence on drug charges.
Lexington attorney R. Michael Murphy, who represented Pennington on appeal with attorney Jarrod J. Beck, said he plans to file a motion Thursday to have Pennington released on bond pending re-sentencing in the case.
Pennington has served more than 20 months, well past the time he would have served in the absence of the gun conviction, Murphy said.
"We just don't think it's appropriate that he spend any more time in prison," Murphy said.
The case started in September 2011 when Pennington went with a state social worker investigating a complaint at a Corbin home.
Regina West, who lived there, testified that Pennington found pain pills she abused, but said he would ignore the drug crime if she would have sex with him.
Pennington said he would return to West's home early the next day, while her husband was at work, West said.
West said she was scared and told state police about Pennington's solicitation at her sister's urging.
Two state police officers set up recording equipment in her living room and hid in another room before Pennington returned just before 4 a.m., according to court records.
Pennington was on his way to work to help with a drug roundup, so he had on his uniform and was carrying his Glock .40-caliber pistol in a holster.
He handed West one of the pain pills he had taken from her earlier, than asked her to perform oral sex on him.
The two officers rushed in at that point and took Pennington's gun.
Pennington, who had been a trooper 10 years, resigned and was later indicted in federal court on charges of possessing and distributing drugs and carrying his gun in relation to a drug crime.
Pennington pleaded guilty on the two drug charges but fought the gun charge.
Prosecutors argued the fact Pennington had his gun facilitated his crime because it emboldened him and intimidated West.
However, Pennington's attorneys argued that the presence of the gun was a coincidence of Pennington being on his way to work, and played no role in the drug transaction.
The appeals panel said having a gun played a role in Pennington extorting West to have sex with him, but did not further his act of giving West a pill.
The appeals court sent the case back to federal court in London for a new sentencing hearing on the drug charges.
Murphy said he was not aware of any reason Pennington's new sentence would be different than the original term of 14 months. That would mean the former trooper has served enough time to complete that sentence.