Opinion
NO. 2019-CA-000373-MR
02-07-2020
DANNY LEE COBB APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Brandon N. Jewell Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LUCY ANNE VANMETER, JUDGE
ACTION NO. 18-CR-00287 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: Danny Cobb appeals from orders of the Fayette Circuit Court which denied his motion to change his parole eligibility from 50% of sentence served to 20% pursuant to Kentucky Revised Statutes (KRS) 218A.1412(3)(b)2b. We find no error and affirm.
Since Appellant's conviction, KRS 218A.1412 has been revised. We will utilize the prior version of this statute in effect at the time of Appellant's arrest and conviction.
FACTS AND PROCEDURAL HISTORY
On July 6, 2018, Appellant pleaded guilty to: first-degree trafficking in a controlled substance, fentanyl; possession of drug paraphernalia; and third-degree possession of a controlled substance. Prior to sentencing, defense counsel filed a motion to apply KRS 218A.1412(3)(b)2b. Pursuant to this statute, a person who has a substance use disorder can become eligible for parole sooner than usually required by statute. The trial court denied the motion and sentenced Appellant in accordance with the plea agreement. This appeal followed.
KRS 218A.500.
KRS 218A.1417. --------
ANALYSIS
Appellant argues that the trial court should have applied KRS 218A.1412(3)(b)2b to this case and erred in not doing so. Seeing as this appeal revolves around the interpretation of a statute, we will review it de novo. Commonwealth v. Long, 118 S.W.3d 178, 181 (Ky. App. 2003) (citations omitted). "We must interpret statutes as written, without adding any language to the statute[.]" Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008) (footnote omitted).
The version of KRS 218A.1412 in effect at the time of Appellant's conviction stated:
(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 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 heroin, fentanyl, carfentanil, or fentanyl derivatives; 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; and
2. a. Except as provided in subdivision b. of this subparagraph, where the trafficked substance was heroin and the defendant committed the offense while possessing more than one (1) items of paraphernalia, including but not limited to scales, ledgers, instruments and material to cut, package, or mix the final product, excess cash, multiple subscriber identity modules in excess of the number of communication devices possessed by the person at the time of arrest, or weapons, which given the totality of the circumstances indicate the trafficking to have been a commercial activity, shall not be released on parole until he or she has served at least fifty percent (50%) of the sentence imposed.
b. This subparagraph shall not apply to a person who has been determined by a court to have had a substance use disorder relating to a controlled substance at the time of the offense. "Substance use disorder" shall have the same meaning as in the current edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.
(c) Any person convicted of a Class C felony offense or higher under this section shall not be released on
probation, shock probation, parole, conditional discharge, or other form of early release until he or she has served at least fifty percent (50%) of the sentence imposed in cases where the trafficked substance was heroin, fentanyl, carfentanil, or fentanyl derivatives.
In this case, the trial court found that KRS 218A.1412(3)(b)2b was not applicable to Appellant. We agree. Appellant pleaded guilty and was sentenced pursuant to KRS 218A.1412(1)(d). Appellant's crime was a Class C felony. KRS 218A.1412(3)(a). A person convicted of a Class C felony must serve 50% of his or her sentence before he or she can become eligible for parole. KRS 218A.1412(3)(c). KRS 218A.1412(3)(b)2b can only be used to reduce the 50% eligibility requirement if the person convicted was convicted of trafficking in heroin, possessed drug paraphernalia, and has a substance use disorder. In addition, this section only applies to people convicted of KRS 218A.1412(1)(e). Appellant was convicted of KRS 218A.1412(1)(d), trafficking in fentanyl.
CONCLUSION
The language of the statute is clear—KRS 218A.1412(3)(b)(2)(b) does not apply to Appellant. The trial court made no error and we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Brandon N. Jewell
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Stephanie L. McKeehan
Assistant Attorney General
Frankfort, Kentucky