Opinion
NO. 2016-CA-000495-MR
05-05-2017
BILLY WILLS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Susan Jackson Balliet Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LEWIS CIRCUIT COURT
HON. ROBERT CONLEY, JUDGE
INDICTMENT NO. 15-CR-00040 OPINION
VACATING AND REMANDING
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BEFORE: COMBS, D. LAMBERT, AND THOMPSON, JUDGES. COMBS, JUDGE: Billy Wills appeals from an amended judgment and sentence of conviction entered on May 24, 2016, by the Lewis Circuit Court. We concur with both the Commonwealth and Wills that the circuit court erred in sentencing Wills contrary to statute. Therefore, we vacate the judgment and remand for a new sentencing.
Billy Wills was indicted on March 20, 2015, based on an undercover sting operation that had occurred on December 9, 2014, in Lewis County, Kentucky. Wills sold two (2) thirty-milligram Oxycodone pills to a long time friend for one hundred dollars. However, that friend was working as a paid confidential informant for the Fivco Area Drug Enforcement (FADE) task force. Based on this incident, Wills was indicted for first-degree trafficking in a controlled substance, second or subsequent offense, and for being a persistent felony offender (PFO).
Kentucky Revised Statutes (KRS) 218A.1412, charged here as a Class C felony.
KRS 532.080. --------
Wills's trial was trifurcated into a guilt phase, a "second or greater offense" phase, and a combined PFO / Truth-in-Sentencing phase. During the guilt phase, the jury found Wills guilty of first-degree trafficking in a controlled substance for selling Oxycodone. In the second or greater offense phase, the Commonwealth introduced two separate prior convictions, Indictments 04-CR-61 and 04-CR-62. Wills had pled guilty to first-degree trafficking on both of those indictments and was sentenced to a term of seven-years' imprisonment.
In the third phase of the trial, the Commonwealth introduced evidence supporting elements of the charge of being a persistent felony offender. The Commonwealth introduced additional first-degree trafficking convictions that Wills received based on Indictments 07-CR-00035 and 04-CR-63. The Commonwealth also established that Wills had been discharged from probation and parole supervision fewer than five years before the incident leading to his current charges.
The circuit court then instructed the jury that it could sentence Wills based on a range of five to ten years for first-degree trafficking, second or subsequent offense, and that it could enhance that sentence to a range of ten to twenty years if it found Wills guilty of being a persistent felony offender. The jury found Wills guilty as to the PFO and recommended a ten-year sentence for first-degree trafficking, second or subsequent offense, with the sentence reflecting enhancement pursuant to Wills's PFO status. The circuit court entered judgment in accord with the jury recommendation and sentenced Wills to ten-years' imprisonment. It ordered restitution to the FADE task force in the amount of one hundred dollars. This appeal follows.
In its brief, the Commonwealth agrees with Wills that the circuit court sentenced him contrary to statute. "Because statutory interpretation is a question of law, our review is de novo." Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky. 2011). The General Assembly added the following provision to the persistent felony offender statute in 2011:
(10) (a) Except as provided in paragraph (b) of this subsection, this section shall not apply to a person convicted of a criminal offense if the penalty for that offense was increased from a misdemeanor to a felony, or from a lower felony classification to a higher felony classification, because the conviction constituted a second or subsequent violation of that offense.
(b) This subsection shall not prohibit the application of this section to a person convicted of:
KRS 532.080, amended by 2011 Ky. Acts ch. 2, § 26 (effective June 8, 2011). The jury convicted Wills for first-degree trafficking in a controlled substance, second or subsequent offense, and was instructed to sentence him according to a Class C felony penalty range of five to ten years. KRS 218A.1412(3)(b)(1) provides, in relevant part, that an individual found guilty of first-degree trafficking "[s]hall be guilty of a Class D felony for the first offense and a Class C felony for a second or subsequent offense." As applied to Wills, the trafficking statute clearly comes within the ambit of KRS 532.080(10)(a), supra, which mandates that PFO enhancement1. A felony offense arising out of KRS 189A.010, 189A.090, 506.140, 508.032, 508.140, or 510.015; or
2. Any other felony offense if the penalty was not enhanced to a higher level because the Commonwealth elected to prosecute the person as a first-time violator of that offense.
shall not apply to a person convicted of a criminal offense if the penalty for that offense was increased... from a lower felony classification to a higher felony classification, because the conviction constituted a second or subsequent violation of that offense."
Despite this statutory prohibition against double enhancement, the circuit court nonetheless instructed the jury to enhance Wills's sentence to a range of ten to twenty years' imprisonment upon a finding of guilt for the PFO charge. The jury duly followed those instructions and sentenced Wills accordingly. "[S]entences falling outside the permissible sentencing range cannot stand uncorrected." McClanahan v. Commonwealth, 308 S.W.3d 694, 700 (Ky. 2010). "A sentence that lies outside the statutory limits is an illegal sentence, and the imposition of an illegal sentence is inherently an abuse of discretion." Id. at 701. The appropriate remedy for an improper sentencing is to vacate the judgment. Id. at 700 (citing Ratliff v. Commonwealth, 194 S.W.3d 258, 277 (Ky. 2006)). We agree with the Commonwealth and with Wills that vacating the judgment is necessary in this case.
The matter of restitution is also at issue in this case. We concur with both parties that the circuit court erred in assigning restitution to the FADE task force as part of Wills's sentence. Government entities, including law enforcement agencies, can be considered "victims" for purposes of restitution, but only "when the expenses are extraordinary and fall outside the scope of typical expenses inherent in police work." Sevier v. Commonwealth, 434 S.W.3d 443, 469 (Ky. 2014). In Sevier, hiring an independent hazardous-waste disposal company to dispose of an active methamphetamine laboratory was deemed to be so "extraordinary" as to warrant restitution. Id. at 470. In so holding, the Supreme Court of Kentucky distinguished its result from Vaughn v. Commonwealth, 371 S.W.3d 784 (Ky. App. 2012), which held that the Commonwealth may not receive restitution for expenses related to extradition. The Supreme Court found that extradition was "more properly associated with the costs of prosecuting a crime than an 'expense[ ] suffered by a victim because of a criminal act[.]'" Sevier, 434 S.W.3d at 469 (quoting KRS 532.350(1)(a)).
We agree with the Commonwealth that "buy money" for drug sting operations should be considered a typical expense incident to police work associated with prosecuting crime and that, therefore, it should not be considered an "extraordinary" expense entitling the Commonwealth to restitution.
We vacate the judgment and sentence of conviction and remand for a new sentencing phase consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Susan Jackson Balliet
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky