Opinion
NO. 2011-CA-000136-MR
08-24-2012
MICHAEL REYNOLDS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Robert Yang Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE PHIL PATTON, JUDGE
ACTION NO. 09-CR-00332
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
BEFORE: CAPERTON, CLAYTON, AND VANMETER, JUDGES. CAPERTON, JUDGE: Michael Reynolds appeals from the denial of his motion to suppress and the corresponding conditional guilty plea for first-degree possession of a controlled substance (methamphetamine), second offense. On appeal, Reynolds argues that the trial court erred when it ruled that Reynolds's prior misdemeanor conviction for possession of a controlled substance, second degree, could be used to enhance his pending charge to a second or subsequent offense. Additionally, Reynolds argues that the court erred in imposing court costs and fines, as he was an indigent defendant. After a thorough review of the parties' arguments, the record, and the applicable law, we affirm in part, reverse in part, and remand this matter to the trial court for further proceedings.
The facts of this appeal are not in dispute. A police officer noticed Melissa Reynolds, the wife of Reynolds, acting suspiciously inside a vehicle as Reynolds entered the vehicle. The officer asked the Reynoldses to step out of the vehicle. Melissa admitted to the officer that she had smoked as well as inhaled methamphetamine. The officer ultimately searched Reynolds and found a coffee filter containing a white substance in his left front pocket, which tested positive for methamphetamine. The Glasgow Police Department dispatch informed the officer that Reynolds had a prior conviction for possession of controlled substance, first degree. Reynolds was arrested and charged with one count of first-degree possession of a controlled substance, second offense.
At the time Reynolds appeared before the trial court, KRS 218A.1415 mandated that first-degree possession of a controlled substance, second offense, was a Class C felony. Reynolds sought to suppress his prior conviction which arose from a guilty plea to possession of a controlled substance, second degree, a misdemeanor offense. In his motion to suppress, Reynolds argued that the Kentucky Legislature did not intend to allow a misdemeanor possession conviction to enhance a felony possession charge to a second or subsequent offense, as this would produce illogical and unfair results.
The trial court agreed with the Commonwealth that Jackson v. Commonwealth, 319 S.W.3d 347 (Ky. 2010), and Commonwealth v. Churchwell, 938 S.W.2d 586 (Ky.App. 1996), were controlling. The trial court noted that Jackson and Churchwell held that a prior misdemeanor conviction was properly used to enhance a felony trafficking conviction as a second or subsequent offense. The trial court then denied Reynolds's motion to suppress. Reynolds entered a conditional guilty plea to one count of first-degree possession of a controlled substance, second offense, and was sentenced to eight years of imprisonment and was ordered to pay $1,000 in court costs and fines. It is from this that Reynolds now appeals.
Reynolds presents two arguments on appeal, namely: (1) that the trial court erred when it ruled that Reynolds's prior misdemeanor conviction for possession of a controlled substance, second degree, could be used to enhance his pending charge to a second or subsequent offense (i.e., the trial court misinterpreted KRS 218A.1415 and 218A.010); and (2) that the court erred in imposing court costs and fines because he is an indigent defendant. With these arguments in mind we now turn to our applicable standard of review.
In review of the trial court's decision on a motion to suppress, this Court must first determine whether the trial court's findings of fact are clearly erroneous. Under this standard, if the findings of fact are supported by substantial evidence, then they are conclusive. RCr 9.78; Lynn v. Commonwealth, 257 S.W.3d 596, 598 (Ky.App. 2008). "Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law." Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App. 2002) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998); Commonwealth v. Opell, 3 S.W.3d 747, 751 (Ky.App. 1999)). This Court has held that we will review de novo the issue of whether the court's decision is correct as a matter of law. Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky.App. 2000).
Since the proper interpretation of KRS 218A.1415 and 218A.010 is purely a legal issue, our review is de novo. Commonwealth v. Long, 118 S.W.3d 178, 181 (Ky.App. 2003). As noted in Long:
On review, it is our duty to construe the statute so as to effectuate the plain meaning and unambiguous intent expressed in the law. Moreover, we understand that the judiciary is not at liberty to add or subtract from the legislative enactment . . . or to attempt to cure any omissions.Id. at 181 (internal quotations and citations omitted).
We now turn to Reynolds's first argument, that the trial court erred in interpreting KRS 218A.1415 and 218A.010 when it ruled that Reynolds's prior misdemeanor conviction for possession of a controlled substance, second degree, could be used to enhance his pending charge to a second or subsequent offense. KRS 218A.010(41) states:
KRS 218A.1415 now mandates:
(2) Possession of a controlled substance in the first degree is a Class D felony subject to the following provisions:
(a) The maximum term of incarceration shall be no greater than three (3) years, notwithstanding KRS Chapter 532;
(b) For a person's first or second offense under this section, he or she may be subject to a period of:
1. Deferred prosecution pursuant to KRS 218A.14151; or
2. Presumptive probation;
(c) Deferred prosecution under paragraph (b) of this subsection shall be the preferred alternative for a first offense; and
(d) If a person does not enter a deferred prosecution program for his or her first or second offense, he or she shall be subject to a period of presumptive probation, unless a court determines the defendant is not eligible for presumptive probation as defined in KRS 218A.010.
"Second or subsequent offense" means that for the purposes of this chapter an offense is considered as a second or subsequent offense, if, prior to his or her conviction of the offense, the offender has at any time been convicted under this chapter, or under any statute of the United States, or of any state relating to substances classified as controlled substances or counterfeit substances, except that a prior conviction for a nontrafficking offense shall be treated as a prior offense only when the subsequent offense is a nontrafficking offense. For the purposes of this section, a conviction voided under KRS 218A.275 or 218A.276 shall not constitute a conviction under this chapter[.]KRS 218A.010(41).
While Reynolds argues that Jackson, supra, and Churchwell, supra, are not controlling in this case because they involve trafficking in a controlled substance, second or subsequent offense, we disagree. The Court in Jackson v. Commonwealth, 319 S.W.3d 347, 351 (Ky. 2010), relied upon Churchwell, supra, when it held:
By its terms, KRS 218A.010(35) does not require that the underlying prior drug trafficking offense be a felony conviction in order for it to enhance a future conviction as a "second or subsequent offense." All that section requires is some conviction under Chapter 218 or anyJackson at 351.
other state or federal law, a requirement Appellant's prior misdemeanor conviction clearly satisfies. Appellant's reasoning would require this Court to add additional language to the statute. This we will not do.
We find no error with the trial court's reliance upon such dispositive cases. By the plain wording of KRS 218A.010(41), the legislature did not distinguish between a prior felony conviction and a prior misdemeanor conviction. We decline to add such additional language to the statute. Accordingly, we affirm on this issue.
Reynolds's second argument is that he should be given the benefit of the legislature's amendments to KRS 218A.1415, thereby capping his maximum incarceration period at three years in contrast to the eight years he received pursuant to his conditional guilty plea. We ultimately disagree with Reynolds based on the recent Kentucky Supreme Court case of Rogers v. Commonwealth, 366 S.W.3d 446, (Ky. 2012).
KRS 218A.010 was also amended while Reynolds's appeal was pending. However, the definition of "second or subsequent offense" did not substantively change with the addition of "or her" and the renumbering of the statute from KRS 218A.010(35) to KRS 218A.010(41).
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In Rogers, the Court addressed a similar argument:
Finally, Rogers contends that he should be resentenced in light of amendments made to KRS 218A.1412, KRS 218A.1415, and KRS 532.080 by House Bill 463 (2011), amendments affecting the penalties that may be imposed for trafficking in small amounts of cocaine and for possessing cocaine. House Bill 463 did not go into effect until July 2011, not only after Rogers's offenses, but after judgment had been entered against him and even after he had filed hisRogers at 455-456.
original appellate brief in this Court. Nevertheless, Rogers maintains that because penalty mitigating changes to the law may be applied retroactively and because the judgment sentencing him in accord with the prior law is not yet final, he should be permitted, even at this late stage of the proceedings, to invoke the benefits of the new law. We disagree based on unambiguous statutory language.
Rogers relies on KRS 446.110, which, in pertinent part, provides that "[i]f any penalty, forfeiture or punishment is mitigated by any provision of [a] new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect." KRS 446.110 (emphasis added). Although Rogers is correct that this statute allows for the retroactive application of penalty-mitigating changes to the law, Commonwealth v. Phon, 17 S.W.3d 106 (Ky. 2000), by the statute's plain terms the retroactivity is limited to changes that take effect prior to the "pronouncement" of judgment. Here, judgment was pronounced against Rogers no later than October 22, 2010, when the Nelson Circuit Court entered judgment against him. House Bill 463 did not go into effect until the following July, some nine months later. Because House Bill 463 had not gone into effect at the time the judgment against Rogers was pronounced, Rogers may not now invoke the new law's penalty provisions.
Clearly, in light of Rogers, Reynolds may not now invoke the new penalty provisions under House Bill 463 when his sentence was entered in 2010 and House Bill 463 did not go into effect until July 2011. Thus, we find no error.
Finally, we address Reynolds's claim that the trial court erred in assessing court costs to an indigent defendant. Recently, in Maynes v. Commonwealth, 361 S.W.3d 922 (Ky. 2012), the Kentucky Supreme Court held that, "there is no prohibition on imposition of court costs on a defendant who qualifies for the services of a public defender if the trial court determines under the circumstances of that particular case that the defendant is able to pay such costs." Id. at 923. Of import, the Maynes Court distinguished prior cases, like Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010) when it stated:
[I]n none of those cases was the defendant's ability to pay made an issue, nor in any of them was the recoupment statute invoked. Without some reasonable basis for believing that the defendant can or will soon be able to pay, the imposition of court costs is indeed improper. Here, by contrast Maynes was to be released from custody pursuant to his diversion agreement, and so, unlike the defendants in the cases just referred to, he could reasonably be expected in the near future to acquire the means to pay the relatively modest court costs of $130.00.Maynes at 930.
Thus, in light of Maynes:
Courts may now impose court costs on an indigent defendant, "unless the court finds that the defendant is a poor person as defined by KRS [Kentucky Revised Statutes] 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." KRS 23A.205.Smith v. Commonwealth, 361 S.W.3d 908, 921 (Ky. 2012).
Accordingly, we reverse the trial court's imposition of court costs, and remand for a determination of whether Reynolds is: (1) a poor person as defined by KRS 453.190(2); and (2) unable to pay court costs now, and will be unable to pay court costs in the foreseeable future.
In light of the aforementioned, we affirm in part, reverse in part, and remand this matter for further proceedings.
ALL CONCUR. BRIEFS FOR APPELLANT: Robert Yang
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
James Havey
Assistant Attorney General
Frankfort, Kentucky