JAMIE C. FERGUSON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 29, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002211-MR
JAMIE C. FERGUSON
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE JANET P. COLEMAN, JUDGE
INDICTMENT NO. 02-CR-00480
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND TACKETT, JUDGES.
DYCHE, JUDGE:
On September 21, 2002, a security guard in a
Kroger store observed Jamie C. Ferguson conceal on his person
several boxes of generic pseudoephedrine.
When the guard
approached Ferguson, the latter threw the boxes at the guard and
attempted to flee.
A scuffle ensued, during which Ferguson
injured the guard.
Ferguson ultimately admitted to his attempt
to steal those pills as well as over 300 from a nearby
Walgreen’s store; he stated that he used them to manufacture
methamphetamine.
A Hardin Circuit Court grand jury indicted Ferguson
the following month for the offenses of Manufacturing
Methamphetamine, Second Degree Robbery, and the status offense
of Persistent Felony Offender in the First Degree (PFO I).
On
January 17, 2003, Ferguson, in exchange for dismissal of the
robbery charge, entered a plea of guilty to the drug offense and
PFO I.
He received a sentence of twenty years’ incarceration,
ordered to run consecutively with sentences received in Hopkins
and Ohio Counties.
On February 17, 2004, Ferguson filed a motion pursuant
to CR 60.02 to vacate his convictions based on the Kentucky
Supreme Court’s opinion in Kotila v. Commonwealth, 114 S.W.3d
226 (Ky. 2003).
There it was decided that KRS 218A.1432(1)(b)
as it was written then 1 required possession of all the chemicals
or all the items of equipment necessary to effect the
manufacture of methamphetamine.
Ferguson insisted then, as he
does here, that possession of only one chemical (albeit a vast
quantity of it) rendered his guilty plea invalid as “based on
. . . misinformation.”
The Hardin Circuit Court denied the
requested relief, and Ferguson appeals.
1
We affirm.
The statute has since been amended (effective June 20, 2005) to require, for
conviction of possession with intent to manufacture methamphetamine,
possession of two or more chemicals or items of equipment necessary for same.
-2-
Kotila can be distinguished simply from Ferguson’s
situation.
There the defendant maintained his innocence
throughout and was tried and convicted by a jury.
no claim of innocence.
618 (1998).
Ferguson made
Bousley v. United States, 523 U.S. 614,
Cf. Fiore v. White, 531 U.S. 225 (2001).
Ferguson admitted that he manufactured methamphetamine.
In fact,
See KRS
218A.1432(1)(a); Johnson v. Commonwealth, 134 S.W.3d 563, 570
(Ky. 2004); and Varble v. Commonwealth, 125 S.W.3d 246, 254 (Ky.
2004).
It was not incumbent upon the Commonwealth to prove any
of the statutory elements.
The trial court properly denied
Ferguson’s CR 60.02 motion.
The order of the Hardin Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Edwin Neal
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky
-3-
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