Opinion
2023-CA-0769-MR
08-16-2024
RUSSELL T. AMBOREE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Molly Mattingly Frankfort, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
APPEAL FROM HENDERSON CIRCUIT COURT HONORABLE KAREN LYNN WILSON, JUDGE ACTION NO. 22-CR-00211
BRIEFS FOR APPELLANT:
Molly Mattingly
Frankfort, Kentucky
BRIEF FOR APPELLEE:
Russell Coleman
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
BEFORE: CETRULO, L. JONES, AND LAMBERT, JUDGES.
OPINION
CETRULO, JUDGE:
VACATING AND REMANDING
Appellant Russell Amboree ("Amboree") appeals the Henderson Circuit Court judgment sentencing him to six years of imprisonment. After careful review, we vacate Amboree's sentence and remand for resentencing.
BACKGROUND
On April 12, 2022, a grand jury indicted Amboree for trafficking in methamphetamine, fentanyl, marijuana, and an unspecified schedule III substance. Kentucky Revised Statutes ("KRS") 218A.1412, 218A.1413, 218A.1421. Along with those four charges, the grand jury charged Amboree as a first-degree persistent felony offender ("PFO") under KRS 532.080(3). The indictment alleged that Amboree, a felon, had drugs with the intent to sell them at a racetrack in Henderson, Kentucky. Amboree pled not guilty to all charges.
Before trial, the Commonwealth moved to dismiss the schedule III substance trafficking charge. The circuit court granted that motion, leaving Amboree charged with trafficking methamphetamine, fentanyl, and marijuana, as well as being a PFO. During the trial, Amboree focused his defense on mitigation. Amboree claimed that he was a drug user who hit "rock bottom." He explained that his drugs were for personal use, not for sale, and urged the jury to find him guilty of possession rather than trafficking. See KRS 218A.1415.
The Commonwealth also moved to dismiss a "second offense" designation from Amboree's methamphetamine trafficking charge to avoid a potential issue during the penalty phase.
Amboree's defense succeeded. After the one-day trial, the jury found Amboree guilty of the lesser included offenses of two counts of possession of a controlled substance, as well as one misdemeanor charge. The circuit court also dismissed Amboree's PFO charge. For his crimes, the jury recommended a six-year prison sentence. In doing so, the jury fixed two consecutive, three-year sentences for Amboree's two felonies: possession of a controlled substance, methamphetamine, first-degree; and, possession of a controlled substance, fentanyl, first-degree. KRS 218A.1415(1)(a), (c).
Evidence at trial revealed that fentanyl was a schedule II narcotic. KRS 218A.1415(1)(a).
The jury also recommended a concurrent 45-day sentence for Amboree's possession of marijuana. KRS 218A.1422(2).
At sentencing, Amboree contested the length of his six-year sentence. He argued that a six-year sentence - two consecutive three-year terms - would "exceed the three-year maximum of the . . . possession charge." See KRS 218A.1415(2)(a). Such a sentence, Amboree asserted, would violate the statutory cap for consecutive sentences under KRS 532.110(1)(c). He also noted that KRS 532.080 excludes possession crimes from a sentence enhancement. In short, Amboree argued his sentences may only run consecutively for three years or less because the PFO statute would not apply to his convictions. See KRS 532.080(8).
The circuit court, however, ignored Amboree's argument. It instead asked, "Do you understand the jury's recommendation?" Once again, Amboree said the recommendation "exceeds the statutory limits." The circuit court repeated its question, and Amboree eventually acknowledged his recommended sentence. The circuit court then entered its judgment and sentenced Amboree to six years of imprisonment (two consecutive three-year terms). This appeal followed.
STANDARD OF REVIEW
Issues of statutory construction present questions of law, requiring de novo review. Commonwealth v. Gamble, 453 S.W.3d 716, 718 (Ky. 2015) (citing Cumberland Valley Contractors, Inc. v. Bell Cnty. Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007)). We review such issues anew, without deference to the circuit court's conclusions. Lee v. Ky. Dep't of Corr., 610 S.W.3d 254, 257 (Ky. 2020) (citing Cumberland Valley, 238 S.W.3d at 647). Simply put, this Court is not bound by a circuit court's interpretation of statutes. See id.
Our primary function in construing statutes is to determine the General Assembly's legislative intent. Jones v. Commonwealth, 636 S.W.3d 503, 505 (Ky. 2021) (quoting Beach v. Commonwealth, 927 S.W.2d 826, 828 (Ky. 1996)); KRS 446.080(1) ("All statutes of this state shall be liberally construed . . . to promote their objects and carry out the intent of the legislature[.]"). To derive this intent, we look at the statute's plain text. Gamble, 453 S.W.3d at 718 (citing Lynch v. Commonwealth, 902 S.W.3d 813, 814 (Ky. 1995)). We take words by their ordinary meaning, assuming the General Assembly "meant exactly what it said[] and said exactly what it meant." Richardson v. Commonwealth, 645 S.W.3d 425, 432 (Ky. 2022) (quoting Univ. of Louisville v. Rothstein, 532 S.W.3d 644, 648 (Ky. 2017)).
"When a statute is plain and unambiguous on its face, we are not at liberty to construe the language otherwise." Commonwealth v. Shirley, 653 S.W.3d 571, 577 (Ky. 2022) (citing Whittaker v. McClure, 891 S.W.2d 80, 83 (Ky. 1995)). We read the statute in its entirety, giving equal effect to all provisions "so that no part of the statute will become meaningless or ineffectual." Id. (quoting Lewis v. Jackson Energy Co-op., Corp., 189 S.W.3d 87, 92 (Ky. 2005)). The General Assembly, we presume, would "not intend an absurd result." Id. (citing Commonwealth, Cent. State Hosp. v. Gray, 880 S.W.2d 557, 559 (Ky. 1994)). This Court reads the statute "in context with other parts of the law." Id. (quoting Lewis, 189 S.W.3d at 92).
ANALYSIS
On appeal, Amboree asks this Court to vacate his sentence and remand for resentencing. He contends that there is only a statutory basis to run his sentences consecutively for three years, not six. To support his case, Amboree points to the language of KRS 532.080 and the possession statute, KRS 218A.1415. He also cites our decision in Eldridge v. Commonwealth, 479 S.W.3d 614, 619-20 (Ky. App. 2015), which gave early insight into the relationship between possession convictions and PFO enhancements.
As noted, Amboree's PFO charge was dismissed, but we reference the PFO statute for ease of discussion. Chapter 532 has been held applicable to sentencing caps for PFOs as well as non-PFOs. See Castle v. Commonwealth, 411 S.W.3d 754, 757 (Ky. 2013).
By contrast, the Commonwealth insists that the circuit court properly sentenced Amboree. In making that argument, the Commonwealth also relies on the PFO statute, but argues that KRS 532.110(1)(c) gives the circuit court discretion to run those sentences consecutively for up to 20 years. The Commonwealth, too, cites Eldridge, claiming this Court already held that sentences for certain drug crimes may run consecutively with a Chapter 532 enhancement.
The question before us is whether Amboree's six-year consecutive sentence exceeds the statutory limit. It does. More generally, we must decide whether the PFO statute may enhance the maximum sentence for a possession conviction. We hold it cannot.
KRS 532.080 enhances a defendant's sentence if he is a PFO. The statute aims to strengthen Kentucky's rehabilitation efforts by imposing greater penalties on felons who recommit crimes after their release from imprisonment. Williams v. Commonwealth, 639 S.W.2d 788, 790 (Ky. App. 1982). To that end, the PFO statute offers prosecutors a wider sentencing range otherwise provided by the penal code. E.g., KRS 532.080(6).
At the same time, these enhancements may apply to non-PFOs, like Amboree. When defendants face multiple sentences for more than one crime, KRS 532.110(1) allows the circuit courts to run those sentences concurrently or consecutively, but, there are exceptions to this discretion. Id. The exception that involves PFO enhancements is mentioned in Subsection (1)(c):
The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed. In no event shall the aggregate of consecutive indeterminate terms exceed seventy (70) years[.]KRS 532.110(1)(c) (emphasis added).
Subsection (1)(c), in other words, uses PFO enhancements as guideposts for imposing indeterminate, consecutive sentences. Id. Its reference to the PFO statute is simply a "yardstick" for determining "the maximum allowable term of incarceration for consecutive sentences." Castle v. Commonwealth, 411 S.W.3d 754, 757 (Ky. 2013). As such, "a defendant does not have to be adjudicated a Persistent Felony Offender for his sentence to be determined by reference to our PFO statute." Id. (citation omitted).
Our Supreme Court's opinion in Castle v. Commonwealth best illustrates the interplay between these two statutes. Arlen Castle ("Castle") pled guilty to, among other things, rape, robbery, and sodomy. Id. at 755. Those crimes each carry a felony designation. Id. at 756. After his guilty plea, the circuit court sentenced Castle to 20 years of imprisonment for each of his four Class B felonies and five years of imprisonment for each of his two Class D felonies. Id. The circuit court ordered those sentences to be served consecutively, for a total of 60 years. Id.
On appeal, Castle argued that his maximum aggregate sentence was 50 years, and a total 60-year term violates KRS 532.110(1)(c). Id. The Court disagreed. Id. at 761. To begin, the Court referenced the enhanced sentencing range for Castle's highest class of crime - a Class B felony - under the PFO statute. Id. It found the maximum sentence for a Class B felony is life imprisonment. Id. The Court then turned to the language of KRS 532.110(1)(c). See id. While the maximum term under the PFO statute was life imprisonment, KRS 532.110(1)(c) itself capped Castle's total sentence at 70 years. Id. The Court thus held that Castle's 60-year consecutive sentence complies with the statutory cap. Id.
Keeping those two statutes in mind, we now return to Amboree's sentence. The jury found Amboree guilty of two felonies: possession of methamphetamine and possession of fentanyl. KRS 218A.1415(1)(a), (c). The possession statute - KRS 218A.1415 - classifies these crimes as Class D felonies. Unlike other Class D felonies, possession of a controlled substance has a shorter sentence range. KRS 218A.1415(2)(a). The typical Class D felony carries a sentencing range of one to five years. KRS 532.060(2)(d). Possession of a controlled substance, however, has a maximum sentence of three years. KRS 218A.1415(2)(a).
The Commonwealth believes the circuit court properly sentenced Amboree to a consecutive sentence of six years. To get there, it noted that Amboree's possession crimes were Class D felonies subject to a three-year maximum sentence each. Id. For those sentences to run consecutively, the Commonwealth quotes Subsection (6)(b) of the PFO statute, which states:
If the offense for which he presently stands convicted is a Class C or Class D felony, a persistent felony offender in the first degree shall be sentenced to an indeterminate term of imprisonment, the maximum of which shall not be less than ten (10) years nor more than twenty (20) years.KRS 532.080(6)(b) (emphasis added).
Using that 20-year "yardstick," the Commonwealth reasons that Amboree's two three-year sentences for possession may run consecutively for six years without violating the statutory cap under KRS 532.110(1)(c).
However, Subsection (8) specifically exempts possession crimes under KRS 218A.1415 from enhancement. KRS 532.080(8). Specifically, it reads:
A conviction, plea of guilty, or Alford plea under KRS 218A.1415 shall not trigger the application of this section, regardless of the number or type of prior felony convictions that may have been entered against the
defendant. A conviction, plea of guilty, or Alford plea under KRS 218A.1415 may be used as a prior felony offense allowing this section to be applied if he or she is subsequently convicted of a different felony offense.Id. (emphasis added).
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
This language is unambiguous, making clear that possession crimes are excluded from the 20-year maximum that Subsection (6)(b) prescribes for other Class D felonies. Id. Said another way, Subsection (8) prevents other provisions of the PFO statute from enhancing sentences for possession beyond the three-year limit in KRS 218A.1415(2)(a). Id. Because the PFO statute authorizes nothing beyond the maximum three-year sentence for possession, circuit courts may not impose consecutive sentences exceeding that length under KRS 532.110(1)(c).
Despite that exemption, the Commonwealth still contends that Amboree's consecutive sentence is lawful. Like Amboree, the Commonwealth cites our decision in Eldridge, 479 S.W.3d at 620, stating this issue is settled law. The Commonwealth explains that Eldridge "held that reduced-term drug-crimes sentences can be run consecutively" and that broad holding, it argues, encompasses Amboree's possession crimes. However, that reading of Eldridge is flawed.
Our analysis in Eldridge relied almost entirely on recent precedent, Commonwealth v. Gamble, 453 S.W.3d 716. Thus, we begin with Gamble. In Gamble, our Kentucky Supreme Court held that trafficking crimes under KRS 218A.1413 qualify for a PFO enhancement. Id. at 721. To reach that holding, the Court began with the plain text of the second-degree trafficking statute:
KRS 218A.1413(2)(b)(1) carves out an exception for those first-time offenders, like Gamble, who commit this particular crime by stating that "[a]ny person who violates the provisions of subsection (1)(c) of this section shall be guilty of [] [a] Class D felony for the first offense, except that KRS Chapter 532 to the contrary notwithstanding, the maximum sentence to be imposed shall be no greater than three (3) years."Id. at 719 (quoting KRS 218A.1413(2)(b)(1)) (emphasis added).
The "KRS Chapter 532 to the contrary notwithstanding" language was of particular importance. See id. In defining its meaning, the Court reviewed the General Assembly's amendments to Chapter 218A - the part of the penal code governing controlled substances - under House Bill ("HB") 463. Id. At 720-21. Most notably, the Court compared the language of the trafficking statute with the possession statute:
HB 463 § 12 amended KRS 218A.1415, the statute proscribing first-degree possession of a controlled substance, to reflect that the maximum sentence for a firsttime offense is three years despite its categorization as a Class D felony. Unlike the [trafficking in a controlled substance] TICS2 statute, KRS 218A.1415 has much clearer language. The statute states that despite its classification as a Class D felony, first-degree possession of a controlled substance carries a "maximum term of incarceration [] no greater than three (3) years, notwithstanding KRS Chapter 532." The wording implies that no section of KRS Chapter 532 can increase the sentence beyond three years, including a PFO
enhancement. In the TICS2 statute, however, the General Assembly used the phrase "Chapter 532 to the contrary notwithstanding," which leads this Court to believe that it meant something other than the entire Chapter of KRS 532 is inapplicable. Instead, what we believe the General Assembly meant is . . . that the sentencing court must ignore the contrary penalty range for Class D felonies as detailed in KRS 532.060(2)(d) specifically, but not the PFO provision.Id. (quoting KRS 218A.1413(2)(b)) (emphasis added).
Although the trafficking statute provides for a three-year maximum sentence, our Supreme Court held that it still qualified for enhancement. Id. In Gamble, the Court narrowly interpreted the "KRS Chapter 532 to the contrary notwithstanding" language. Id. (quoting KRS 218A.1413(2)(b)). That language, the Court reasoned, bars only KRS Chapter 532 provisions that are contrary to the three-year maximum sentence. Id. More specifically, the Court found that the language trumps the one to five year sentence range for Class D felonies under KRS 532.060(2)(d). Id.
Similarly, in Eldridge, this Court followed Gamble and affirmed the defendant's sentence on the same grounds. Eldridge, 479 S.W.3d at 620. The defendant, Michael Eldridge ("Eldridge"), pled guilty to four counts of second- degree trafficking of a controlled substance under KRS 218A.1413. The Commonwealth offered Eldridge a one-year sentence on each charge, which would be served consecutively for four years. Id. Eldridge repudiated, insisting that "the aggregate consecutive term of sentences for offenses with a maximum of three years' imprisonment was three years." Id. Because KRS 218A.1413 includes a maximum sentence of three years, Eldridge thought his trafficking crimes were not subject to enhancement. See id. We held that the three-year maximum sentence in the trafficking statute did not shield Eldridge from a longer consecutive sentence. See id. Instead, we agreed that the PFO enhancement authorizes the circuit court to run Eldridge's sentences consecutively for up to 20 years. Id.
We first looked at Eldridge's enhanced sentencing range for his highest class of crime, a Class D felony, under the PFO statute. Id. The maximum aggregate penalty range Eldridge could be sentenced to was 20 years. Id. (citing KRS 532.080(6)(b)). "Accordingly, the circuit court's decision to sentence Eldridge to four consecutive, one-year terms for a total of four years' imprisonment fell within the permitted sentencing range as set forth in KRS 532.110." Id.
Yet Amboree's case is distinguishable from Gamble and Eldridge. Amboree's sentence involves the same issue but with a different statute: KRS 218A.1415. Like the trafficking statute, the possession statute prescribes a three-year maximum sentence for crimes therein. KRS 218A.1415(2)(a). However, that three-year limit comes with much clearer language. See id. Recall our Supreme Court's finding in Gamble, which we later repeated in Eldridge. Gamble, 435 S.W.3d at 720-21; Eldridge, 479 S.W.3d at 619.
Unlike the TICS2 statute, KRS 218A.1415 has much clearer language. The statute states that despite its classification as a Class D felony, first-degree possession of a controlled substance carries a "maximum term of incarceration [] no greater than three (3) years, notwithstanding KRS Chapter 532." (Emphasis added). The wording implies that no section of KRS Chapter 532 can increase the sentence beyond three years, including a PFO enhancement.Gamble, 435 S.W.3d at 720-21 (quoting KRS 218A.1415(2)(a)).
On that understanding, Amboree's sentences for possession are excluded from enhancement. See id. As such, the circuit court may only order Amboree's possession sentences to be served consecutively if the total aggregate sentence does not exceed the three-year statutory maximum.
To summarize, Amboree's sentences may not run consecutively for six years. KRS 532.080(8) exempts sentences for possession under KRS 218A.1415 from a PFO enhancement. Circuit courts may impose consecutive sentences for possession if the total imprisonment term does not exceed three years. See KRS 532.110(c)(1). Eldridge and Gamble further support this. We, like our Supreme Court in Gamble, hold that no section of Chapter 532 may increase sentences under KRS 218A.1415 beyond three years. Eldridge, 479 S.W.3d at 619 (quoting Gamble, 435 S.W.3d at 720-21). For these reasons, we hold that Amboree's consecutive sentence of six years exceeds the three-year cap provided by law.
CONCLUSION
In light of the foregoing, we VACATE the sentence of the Henderson Circuit Court and REMAND for resentencing consistent with this Opinion.
ALL CONCUR.