Opinion
NO. 2015-CA-001916-MR
02-10-2017
MANDY HUGHES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Shannon Dupree Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE BETH LEWIS MAZE, JUDGE
ACTION NO. 15-CR-00079 OPINION
REVERSING AND REMANDING
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BEFORE: MAZE, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Mandy Hughes was indicted by a Montgomery County grand jury for violating Kentucky Revised Statutes (KRS) 218A.1412(1)(c) by knowingly and unlawfully trafficking in ten or more dosage units of heroin. Hughes argues she should have been charged pursuant to KRS 218A.1412(1)(e) for trafficking in a controlled substance (TICS), first degree, first offense, less than two grams of heroin. We agree and reverse.
The relevant facts are not in dispute. On August 27, 2014, Hughes sold ten capsules containing heroin to a confidential informant. She was indicted on April 10, 2015, and charged with TICS first degree, first offense, ten or more dosage units—a class C felony punishable by five to ten-years' imprisonment. On August 7, 2015, Hughes moved to amend the indictment to reflect that she sold less than two grams of heroin in violation of KRS 218A.1412(1)(e), which would make her offense a class D felony under the statute, punishable by one to five-years' imprisonment.
After a hearing, the trial court denied the motion concluding that the Commonwealth properly exercised its discretion in determining under which subsection of KRS 218A.1412 Hughes should be charged. Hughes entered a conditional guilty plea to first-degree TICS, ten or more dosage units and was sentenced to five-years' imprisonment, reserving her right to appeal the trial court's denial of her motion to amend the indictment. This appeal followed.
Hughes was released on bond pending the outcome of this appeal.
The issue presented is one of statutory construction. Because statutory construction is an issue of law, we review this matter de novo. Rhodes v. Commonwealth, 417 S.W.3d 762, 764-65 (Ky.App. 2013). Certain rules of construction are applicable.
Our primary purpose when construing a statute is "to carry out the intent of the legislature. In construing a statute, the courts must consider the intended purpose of the statute-and the mischief intended to be remedied." Monumental Life Ins. Co. v. Dept. of Revenue, 294 S.W.3d 10, 19 (Ky.App. 2008) (internal quotations omitted). The intent of the legislature is derived, if possible, from the language the General Assembly chose. Osborne v. Commonwealth, 185 S.W.3d 645, 648 (Ky. 2006). "We presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts to have meaning, and for it to harmonize with related statutes." Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011). If it appears that two statutes are conflicting, the general rule is "that the specific provision takes precedence over the general." Commonwealth. v. Phon, 17 S.W.3d 106, 107 (Ky. 2000). As final rule, we must presume that the General Assembly did not intend an absurd result. Layne v. Newberg, 841 S.W.2d 181, 183 (Ky. 1992). We apply these general rules to the subsections of KRS 218A.1412 under consideration.
KRS 218A.1412 provides in relevant part:
(1) A person is guilty of trafficking in a controlled substance in the first degree when he or she knowingly and unlawfully traffics in:
(a) Four (4) grams or more of cocaine;
(b) Two (2) grams or more of heroin, fentanyl, or methamphetamine;
(c) Ten (10) or more dosage units of a controlled substance that is classified in Schedules I or II and is a narcotic drug, or a controlled substance analogue;
(d) Any quantity of lysergic acid diethylamide; phencyclidine; gamma hydroxybutyric acid (GHB), including its salts, isomers, salts of isomers, and analogues; or flunitrazepam, including its salts, isomers, and salts of isomers; or
(e) Any quantity of a controlled substance specified in paragraph (a), (b), or (c) of this subsection in an amount less than the amounts specified in those paragraphs.
(2) The amounts specified in subsection (1) of this section may occur in a single transaction or may occur in a series of transactions over a period of time not to exceed ninety (90) days that cumulatively result in the quantities specified in this section.
(3) (a) Any person who violates the provisions of subsection (1)(a), (b), (c), or (d) of this section shall be guilty of a Class C felony for the first offense and a Class B felony for a second or subsequent offense.
(b) Any person who violates the provisions of subsection (1)(e) of this section:
1. Shall be guilty of a Class D felony for the first offense and a Class C felony for a second or subsequent offense;
The Commonwealth argues that packaging heroin in capsules qualifies the drug as a "dosage unit" and, because Hughes sold ten capsules containing heroin, her conduct falls under both subsection (1)(c) and (1)(e) of KRS 218A.1412 and it was within its discretion to choose under which subsection to prosecute Hughes. See Commonwealth v. McKinney, 594 S.W.2d 884, 888 (Ky.App. 1979) (holding if a prosecutor has probable cause to believe the accused committed an offense defined by statute, whether to prosecute and what charge to file or bring before a grand jury, is within the prosecutor's discretion). We disagree.
In 2011, the General Assembly passed House Bill 463 amending various provisions of Kentucky's sentencing guidelines, including KRS 218A.1412 as set out above. The amended version of KRS 218A.1412 establishes a threshold for charging individuals with a Class C felony based on the amount of drugs sold. In the amended version of the statute, the General Assembly distinguished those drugs that are typically sold by weight—i.e., cocaine, heroin, and methamphetamine—from those typically sold as a dosage unit. Relevant to this case, the statute changed the amount of transactional heroin needed to justify being charged with a Class C felony from any amount to two grams or more. The clear intent of the legislature was to punish more severely those who sold a greater amount of heroin and less severely those who sold a lesser amount.
KRS 218A.1412(1)(b) was amended in 2015 to include fentanyl. --------
Hughes argues that the General Assembly, by explicitly naming heroin in a separate subsection of the statute, intended that it not be included under KRS 218A.1412(1)(c). Reading the statute as a whole, we believe it is clear that the General Assembly intended to exclude heroin from being classified as a dosage unit regardless of how it is packaged.
A "dosage unit" is defined in KRS 218A.010(12) as a "single pill, capsule, ampule, liquid, or other form of administration available as a single unit[.]" KRS 218A.1412(1)(c) provides that a person is guilty of trafficking in a controlled substance in the first-degree if the person knowingly traffics in ten or more "dosage units" of a schedule I or II narcotic drug. Heroin is a schedule I narcotic. KRS 218A.050. Read literally without regard to the rules of statutory construction, heroin packaged in a capsule would qualify as a "dosage unit." Under KRS 218A.1412(3)(a), a person who violates subsection (1)(c) "shall be guilty of a Class C felony for the first offense[.]" (emphasis added). However, a literal reading of the statute defining "dosage unit" is inconsistent with the common understanding of "dosage unit" and with other provisions within the same statute.
By using the term "dosage" it is logical to conclude that the General Assembly intended to include prescription drugs which are dispensed according to prescribed amounts and not heroin, which is measured by bulk weight. There is no equivalent dosage unit for two grams of heroin.
Moreover, Hughes sold a total of 1.061 grams of heroin. KRS 218A.1412(1)(e) provides that a person who traffics in less than two grams of heroin is guilty of trafficking in the first degree. Subsection (3)(b)(1) of the statute provides that a person trafficking in less than two grams of heroin "shall be convicted of a Class D felony for the first offense[.]" (emphasis added).
If the Commonwealth is correct and packaged capsules containing heroin are "dosage units," Hughes sold both ten or more dosage units and less than two grams of heroin. Absurdly, the statute would mandate that Hughes be charged with a Class C felony and also that she be charged with a Class D felony. Such an absurd result is contrary to the intent of the General Assembly in amending KRS 218A.1412 to punish defendants based on the amount of drugs sold and not on its packaging. It is clear that the General Assembly intended to exclude the specified drugs in the statute from being classified as dosage units for purposes of prosecution.
Additionally, the general rule of statutory construction that where there appears to be conflict between two statutory provisions that the specific provision prevails over the general statute negates the Commonwealth's argument. KRS 218A.1412(1)(b) specifically addresses heroin, while subsection (1)(c) of the same statute addresses dosage units of controlled substances in general. KRS 218A.1412(1)(b) is the more specific section of the statute and controls. The statute explicitly states that a person who traffics in less than two grams of heroin shall be charged with a Class D felony. Based on the mandatory language in the statute, the Commonwealth had no discretion to charge Hughes with a Class C felony.
We conclude that Hughes could only have been charged with a Class D felony. The judgment of the Montgomery Circuit Court is reversed and the case remanded for further proceedings consistent with this opinion.
TAYLOR, JUDGE, CONCURS.
MAZE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
MAZE, JUDGE, DISSENTING: I must respectfully dissent. I perceive no true conflict between the subsections of KRS 218A.1412 under which Hughes was, or could have been, charged. This being the case, it is my firm belief that the Commonwealth was operating well within its discretion when it chose to prosecute Hughes under the charge which carried a heavier sentence.
Indeed, we must read the language of KRS 218.A.1412 "to have meaning, and for it to harmonize with related statutes." Shawnee Telecom Res. Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011). And of course, where two statutes truly contradict one another, we will resolve that conflict in favor of the more specific of the two. See, e.g., Commonwealth v. Phon, 17 S.W.3d 106, 107-08 (Ky. 2000). However, no such conflict exists between KRS 218A.1412(1)(b) and KRS 218A.1412(1)(c).
The majority contends that the General Assembly, by providing a specific threshold amount for heroin in KRS 218A.1412(1)(b), intended that a person who traffics in less than two grams of heroin could only be prosecuted for a Class D felony under subsection (1)(e) and KRS 218A.1412(3). I disagree that the intent of the General Assembly can be so easily discerned; and I believe such a reading actually frustrates the purpose of the statute, even after the 2011 amendments of House Bill 463.
As the majority points out, KRS 218A.010(12) defines a "dosage unit" as a "single pill, capsule, ampule, liquid, or other form of administration available as a single unit." Hence, we need not resort to the "common meaning" of dosage unit, as the majority proposes, because the statute clearly defines the term for us. Furthermore, as the majority also observes, it is beyond dispute that the ten capsules of heroin found in Hughes's possession fit the statute's definition. Therefore, under the statute, Hughes "shall be guilty of a Class C felony for the first offense[.]" With respect to my colleagues, this uncommonly clear language cannot be read to mean anything else.
More importantly, that the ten capsules Hughes possessed held less than two grams of heroin does not preclude her prosecution under KRS 218A.1412(1)(c) or otherwise limit the Commonwealth to prosecuting her under subsection 1(e) of the same statute. The majority contends that this specific provision clearly precludes prosecution under subsection (1)(c), even if an amount less than two grams is contained in ten or more "dosage units." However, by that same logic, we can just as easily read the legislature's decision to leave KRS 218A.1412(1)(c) intact and alongside subsection (1)(b) to mean that the General Assembly wanted the Commonwealth to possess the power to prosecute trafficking offenses based both on the amount of a given substance and number of "dosage unit[s]" trafficked - not one or the other. I agree with the Commonwealth's reasoning that had Hughes in fact trafficked in more than two grams of heroin, surely we would not say that the Commonwealth was nevertheless limited to prosecuting her for a Class D felony under subsection (1)(e) because the two grams was contained in fewer than ten "dosage units." This would be the absurd result the majority says it wishes to avoid, and the result of the majority's reading of KRS 218A.1412 is no less absurd.
In sum, this hardly seems the appropriate forum to deploy the doctrine of expressio unius est exclusion alterius. It is entirely reasonable - in fact, it better serves the purpose behind KRS 218A.1412 - to read the General Assembly's various amendments and expressions of intent within that statute as affording the Commonwealth with more than one option in charging an individual as long as the Commonwealth has probable cause to believe the individual committed the charged offense. Kentucky prosecutors enjoy this discretion on a daily basis, and that must continue to be the case. The language of KRS 218.1412 does nothing to change or limit that discretion. I would affirm. BRIEFS FOR APPELLANT: Shannon Dupree
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky