Opinion
NO. 2017-CA-000270-MR
03-09-2018
TAMMY PIERCE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Steven Nathan Goens Molly Mattingly Assistant Public Advocates Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE VERNON MINIARD JR., JUDGE
ACTION NO. 16-CR-00038 OPINION
AFFIRMING IN PART AND VACATING IN PART
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BEFORE: ACREE, DIXON, AND NICKELL, JUDGES. DIXON, JUDGE: Tammy Pierce appeals from a Russell Circuit Court judgment entered upon a jury verdict convicting her first-degree trafficking in a controlled substance. After careful review, we affirm in part and vacate in part.
On the evening of December 6, 2015, Deputy Nick Bertram and Detective Joey Hoover, of the Russell County Sheriff's Office, met with confidential informants, Travis and Melissa Peterson, to conduct a controlled buy of methamphetamine from Pierce. After searching the Petersons and providing Travis with an audio recording device, the officers observed the Petersons enter Pierce's residence. The Petersons purchased $25.00 worth of methamphetamine from Pierce and returned to the officers' location. The Petersons gave the baggie of methamphetamine to Deputy Bertram, who then placed it inside a larger evidence bag. The Petersons each provided a statement at the scene consistent with the audio recording of the transaction. Subsequent analysis at the Kentucky State Police lab confirmed the substance was methamphetamine. A grand jury indicted Pierce on one count of trafficking in a controlled substance first-degree and being a persistent felony offender (PFO) in the second-degree.
A jury trial was held in November 2016. The Commonwealth introduced the drugs, the audio of the controlled buy, and testimony from the Petersons, Detective Hoover, and Allison Standifer, the forensic scientist for KSP. The Petersons testified regarding their roles in setting up the transaction to purchase methamphetamine from Pierce. Detective Hoover testified he observed Deputy Bertram place the drugs in the evidence bag, labeling it with the date and time. Detective Hoover acknowledged he did not recall seeing Deputy Bertram seal the bag. Standifer testified the substance arrived by certified mail, with the evidence bag properly sealed, labeled, and signed by Deputy Bertram. The substance tested positive for methamphetamine and was admitted into evidence without objection. The jury found Pierce guilty of the charges and recommended an enhanced sentence of seven years' imprisonment. The court sentenced Pierce pursuant to the jury's recommendation and imposed court costs of $255, payable at $25.00 per month beginning within ninety days of her release from incarceration. This appeal followed.
I. Directed Verdict
When a defendant moves for a directed verdict, the trial court must construe the evidence in a light most favorable to the Commonwealth and deny the motion "[i]f the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). The appellate standard of review regarding the denial of a directed verdict motion is, "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Id.
Pierce contends the Commonwealth failed to establish the substance Standifer tested was actually the same substance Deputy Bertram received from the Petersons because Bertram did not testify at trial to explain what happened to the evidence after it was collected. Pierce emphasizes Bertram collected the evidence on December 6, 2015, yet the evidence was not mailed to the lab until January 6, 2016. She further asserts there was no evidence as to when Deputy Bertram sealed the evidence bag and where it was kept until it was mailed. Pierce contends these gaps in the chain of custody entitled her to a directed verdict of acquittal. We disagree.
In her appellate brief, Pierce also challenges whether the substance turned over by the Petersons was actually what they received from Pierce. This argument was not presented to the trial court; consequently, it was not preserved for appellate review. Commonwealth v. Maricle, 15 S.W.3d 376, 380 (Ky. 2000).
"[I]t is unnecessary to establish a perfect chain of custody or to eliminate all possibility of tampering or misidentification[.]" Rabovsky v. Commonwealth, 973 S.W.2d 6, 8 (Ky. 1998). Further, bare speculation someone could have tampered with the evidence cannot destroy its integrity. Brown v. Commonwealth, 449 S.W.2d 738, 740 (Ky. 1969). "Any gaps go to the weight, rather than the admissibility of the evidence, and the proponent need only demonstrate a reasonable probability that it has not been altered in any material respect." Thomas v. Commonwealth, 153 S.W.3d 772, 781 (Ky. 2004).
Here, Detective Hoover testified the Petersons gave the baggie of methamphetamine to Deputy Bertram, and Bertram then placed the baggie into a larger evidence bag that he labeled with the date and time. Detective Hoover acknowledged he did not see Deputy Bertram seal the evidence bag, but he confirmed it would have been Bertram's responsibility to submit the evidence to the KSP lab. Standifer testified she received the evidence on January 11, 2016, and the bag was properly sealed. Standifer confirmed the bag was stapled closed with Deputy Bertram's signed and dated request form that identified Pierce as the defendant and described the evidence as a "plastic baggy tied on both ends, containing a brownish powdery substance suspected to be methamphetamine."
Despite Pierce's argument to the contrary, the testimony of Hoover and Standifer, along with Bertram's signed request, demonstrated a "reasonable probability" the substance tested by Standifer was the same substance Deputy Bertram obtained from the Petersons. We conclude the chain of custody was sufficiently proven; accordingly, the trial court properly denied Pierce's motion for a directed verdict.
II. Court Costs
Pierce contends the trial court erred by imposing court costs in violation of KRS 23A.205. Although Pierce concedes this argument is unpreserved, an appellate court has the inherent jurisdiction to resolve a sentencing error, which includes a sentence that was imposed contrary to statute. Jones v. Commonwealth, 382 S.W.3d 22, 27 (Ky. 2011).
The statute was amended effective June 29, 2017; however, we will address Pierce's argument under the version of KRS 23A.205 in effect at the time of her sentencing.
The version of the court costs statute, KRS 23A.205, in effect at the time of Pierce's sentencing stated, in relevant part:
(2) The taxation of court costs against a defendant, upon conviction in a case, shall be mandatory . . . unless the court finds that the defendant is a poor person as defined by KRS 453.190(2) and that he or she is unable to pay court costs and will be unable to pay the court costs in the foreseeable future.
(3) If the court finds that the defendant does not meet the standard articulated in subsection (2) of this section and that the defendant is nonetheless unable to pay the full amount of the court costs and fees at the time of sentencing, then the court shall establish a show cause date by which time the court costs . . . shall be paid and may establish an installment payment plan . . . . All court costs and fees under the installment plan shall be paid within one (1) year of the date of sentencing . . . .
In the case at bar, the trial court sentenced Pierce to a seven-year term of imprisonment and imposed court costs of $255. The judgment indicates the court established an installment payment plan, ordering Pierce to pay $25.00 per month beginning within ninety days of her release from incarceration. The court's judgment was clearly contrary to the mandate of KRS 23A.205(3) because it deferred Pierce's payment of court costs for at least seven years. The statute plainly requires costs under an installment plan to be paid within one year of the sentencing date. KRS 23A.205(3); Buster v. Commonwealth, 381 S.W.3d 294, 305 (Ky. 2012). We conclude the court's judgment ordering Pierce to pay costs more than one year after the sentencing date was erroneous as a matter of law; consequently, we vacate that portion of the judgment. Despite our conclusion, we are persuaded it is not necessary to remand this matter for additional findings on the issue of costs.
The judgment indicates Pierce's sentence was to run consecutively to the sentence imposed in a separate circuit court case. --------
In Miller v. Commonwealth, 391 S.W.3d 857, 870 (Ky. 2013), the trial court imposed costs on the defendant in its final judgment; thereafter, the court entered an order finding that the defendant was a poor person pursuant to KRS 453.190 for the purpose of appeal. The Supreme Court vacated the lower court's imposition of costs, but concluded remand was unnecessary "[b]ecause a determination was already made at the time of the entry of the final judgment, or immediately thereafter, that Appellant was a 'poor person' and was therefore not able to pay costs[.]" Id.; see also Jones v. Commonwealth, 527 S.W.3d 820, 824-25 (Ky. App. 2017) (poor person determination three months after sentencing).
Here, Pierce was represented by a public defender throughout trial, and, three weeks after sentencing, the court rendered an order finding her to be a pauper or poor person pursuant to KRS 453.190. We are satisfied the court's determination, shortly after sentencing, that Pierce was a poor person and unable to pay court costs makes remand for a determination of costs unnecessary. See id.
For the reasons stated herein, we vacate that portion of the judgment imposing court costs and affirm the remainder of the Russell Circuit Court's judgment.
ALL CONCUR. BRIEFS FOR APPELLANT: Steven Nathan Goens
Molly Mattingly
Assistant Public Advocates
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky