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A circuit court jury found Appellant Derryl Blane guilty of several drug-related offenses and of being a first-degree Persistent Felony Offender (PFO). The Supreme Court (1) reversed Appellant's conviction for trafficking in marijuana, eight ounces or more, holding that the trial court erred when, after granting Appellant's motion for a directed verdict on the charge of trafficking in marijuana within 1,000 yards of a school, it permitted the Commonwealth to amend the indictment to trafficking in marijuana, eight ounces or more; (2) reversed Appellant's conviction for first-degree PFO as to Count I of the indictment, as the facts necessary to convict Appellant of being a first-degree PFO as to Count I were incapable of being proved; (3) affirmed Appellant's remaining convictions; and (4) remanded for a new penalty phase, as the penalty phase introduction of the original dismissed charges from Appellant's prior convictions was erroneous.Receive FREE Daily Opinion Summaries by Email
RENDERED: APRIL 26, 2012
TO BE PUBLISHED
DERRYL D. BLANE
ON APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE ANDREW C. SELF, JUDGE
NOS. 07-CR-00405; 08-CR-00291
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIRMING IN PART, REVERSING AND VACATING IN PART, AND
A Christian Circuit Court jury found Appellant, Derryl Dewayne Blane,
guilty of two counts of first-degree trafficking in a controlled substance
(cocaine); one count of trafficking in marijuana, eight ounces or more; one
count of possession of drug paraphernalia, second or subsequent offense; and
of being a first-degree Persistent Felony Offender (PFO). For these crimes,
Appellant received a thirty-year prison sentence.
He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that
the trial court (1) erroneously denied his motion to suppress, (2) erroneously
denied his Batson motion, (3) erroneously permitted the Commonwealth to
amend the indictment after granting a directed verdict of acquittal on the
marijuana charge, (4) erroneously admitted testimony during the penalty phase
concerning prior charges of which he had not been convicted, (5) erroneously
imposed a thirty-year sentence, (6) that his conviction as a first-degree PFO is
invalid as to Count 1 of the indictment, and (7) that he should be permitted to
request retroactive application of the amended penalty for possession of drug
On June 27, 2006, the Hopkinsville Police Department's (HPD) Special
Investigations Unit set up a controlled narcotics purchase from Appellant at his
home. HPD sent a confidential informant, Jason Alexander, equipped with a
camera, audio monitoring device, and documented money, to purchase crack
cocaine from Appellant. Jason went to Appellant's home and purchased two
rocks of crack cocaine from him for twenty dollars.
On May 17, 2007, HPD sent another confidential informant—this time
Jason's wife, Connie Alexander—to purchase drugs from Appellant.' HPD
equipped Connie with an audio recorder, transmitter, and forty dollars in
documented money. Connie went to Appellant's home where she bought two
rocks of crack cocaine for forty dollars. This is the only time Connie ever
served as a confidential informant on a controlled purchase for HPD.
Connie's purchase served as the probable cause basis for a search
warrant issued later that day, and executed the next morning at Appellant's
home. The search yielded $11,452.74 in cash, approximately fifteen and one-
Appellant was not arrested immediately following the June 2006 controlled
purchase because there was an ongoing investigation.
half grams of crack cocaine, and approximately two pounds and thirteen
ounces of marijuana.
Appellant was charged by information in Christian Circuit Court with
two counts of first-degree trafficking in a controlled substance (cocaine),
trafficking in marijuana within 1,000 yards of a school, and possession of drug
paraphernalia, second or subsequent offense. He was later indicted by a grand
jury for first-degree PFO.
At the close of the Commonwealth's case-in-chief, Appellant moved for a
directed verdict on the charge of trafficking in marijuana within 1,000 yards of
a school. Because the Commonwealth had introduced no evidence with respect
to Appellant's home being within 1,000 yards of a school, the trial court
indicated that it was going to "in essence" grant Appellant's motion for a
directed verdict on this count. However, the court then granted the
Commonwealth's motion to amend Count 3 of the indictment from trafficking
in marijuana within 1,000 yards of a school to trafficking in marijuana, eight
ounces or more.
The jury found Appellant guilty of the three underlying charges, and
recommended the maximum sentences for each conviction. The
Commonwealth then called a deputy circuit clerk to testify as to Appellant's
prior convictions to establish his PFO status. Specifically, the Commonwealth
elicited testimony from the clerk regarding two separate prior incidents
involving Appellant. With respect to both incidents, the clerk testified as to the
original charges and the charges as amended. 2 Ultimately, the jury convicted
Appellant of being a first-degree PFO. Accordingly, the jury recommended
enhanced sentences of fifteen years on both cocaine trafficking counts, an
enhanced sentence of fifteen years on the marijuana trafficking count, and a
five-year sentence on the possession of drug paraphernalia count. The jury
further recommended that the sentences for the two trafficking in cocaine
counts be served consecutively, and the sentences for the trafficking in
marijuana count and the possession of drug paraphernalia count to be served
concurrently, for a total sentence of thirty years' imprisonment. Additional
facts will be provided where necessary.
Appellant sets forth seven separate arguments: one alleging error in the
investigation, one alleging error in voir dire, one alleging mid-trial error, and
four concerning the penalty phase of his trial. We will discuss them in that
A. Suppression of Evidence
Appellant argues that the trial court erroneously denied his motion to
suppress the evidence collected at his home during the execution of the . search
warrant. He alleges that the affidavit in support of the search warrant
The first incident involved a 2001 indictment in which Appellant was originally
charged with trafficking in a controlled substance and trafficking in marijuana,
amended to possession of a controlled substance and possession of marijuana (for
which he was convicted). The second incident involved a 2006 case in which
Appellant was originally charged with trafficking in a controlled substance and
trafficking in marijuana, but the charges were again amended to possession of a
controlled substance and possession of marijuana (for which he was convicted).
contained false and misleading information, and therefore was issued in
violation of his rights under the United States and Kentucky Constitutions.
Specifically, he contends that the HPD officer's description of the confidential
informant for the May 17, 2007 controlled buy as "reliable" was false and
The Fourth Amendment to the United States Constitution states, in
relevant part, that ". . . no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." 3 See also Ky. Const. § 10
(stating, in relevant part, that "no warrant shall issue to search any place, or
seize any person or thing, without describing them as nearly as may be, nor
without probable cause supported by oath or affirmation"). In Franks v.
Delaware, the United States Supreme Court noted:
"[W]hen the Fourth Amendment demands a factual showing
sufficient to comprise 'probable cause,' the obvious assumption is
that there will be a truthful showing." This does not mean 'truthful'
in the sense that every fact recited in the warrant affidavit is
necessarily correct, for probable cause may be founded upon
hearsay and upon information received from informants, as well as
upon information within the affiant's own knowledge that
sometimes must be garnered hastily. But surely it is to be
"truthful" in the sense that the information put forth is believed or
appropriately accepted by the affiant as true.
438 U.S. 154, 164-65 (1978) (quoting United States v. Halsey, 257 F. Supp.
1002, 1005 (S.D.N.Y. 1966)). Moreover, "[i]f an informant's tip is the source of
information, the affidavit must recite 'some of the underlying circumstances
The Fourth Amendment is applicable to the states through the Due Process
Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961).
from which the informant concluded' that relevant evidence might be
discovered, and 'some of the underlying circumstances from which the officer
concluded that the informant . . . was 'credible' or his information 'reliable."'
Id. at 165 (quoting Aguilar v. Texas, 378 U.S. 108, 114 (1964)).
When an affidavit supporting a search warrant is challenged, it is
presumptively valid. Id. at 171. The challenger must allege deliberate
falsehood or reckless disregard for the truth, "and those allegations must be
accompanied by an offer of proof." Id. If the challenger establishes this by a
preponderance of the evidence, "and, with the affidavit's false material set to
one side, the affidavit's remaining content is insufficient to establish probable
cause, the search warrant must be voided and the fruits of the search excluded
to the same extent as if probable cause was lacking on the face of the affidavit."
Id. at 156.
On appeal, we engage in a two-step analytical review. "First, [we] review
the factual findings of the circuit judge to see if they are supported by
substantial evidence, RCr 9.78, and then review the ruling on the motion to
suppress de novo to see whether the decision was correct as a matter of law."
Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010) (citing Orlenas v. United
States, 517 U.S. 690, 698-99 (1996)). However, "[i]n doing so, all reviewing
courts must give great deference to the warrant-issuing judge's decision."
(citing Illinois v. Gates, 462 U.S. 213, 236 (1983)).
1. The trial court's factual findings are supported by substantial
With respect to the first step, the trial judge ruled from the bench that
the affidavit's description of the informant as "reliable" did not rise to the level
of a Franks issue and therefore denied Appellant's motion. This appears to be
the extent of his "factual findings" on the record. Implicitly, though, this
means that the trial judge found that the affiant's assertion that the
confidential informant was "reliable" was not a deliberate falsehood, or made
with reckless disregard for the truth.
The affidavit states, in relevant part, that "Affiant received information
from/observed a reliable confidential informant that she had made a successful
controlled purchase of crack cocaine at [Appellant's address]." The officer
corroborated this evidence by "isten[ing] to the audio of the buy and
confirm[ing] that a controlled purchase had occurred, field test[ing] the drugs
and confirm[ing] the location of the buy as described by the C.I."
Appellant contends that the "reliable" status assigned to the confidential
informant was deliberately or recklessly false or misleading because this was
the first and only time that Connie Alexander was used as a confidential
informant in a controlled buy. Reliability, Appellant contends, implies a
pattern of behavior or history; according to him, reliability cannot be
established by the mere fact that she was reliable in this case alone. We
The confidential informant told HPD that she could purchase cocaine
from Appellant. On the day of the purchase she went to the police station and
met with an HPD officer who searched her person, while another officer
searched her vehicle. No drugs were found. An officer equipped the informant
with an audio recorder and transmission device. She was given forty dollars
with which to purchase drugs. 4 She then drove to Appellant's residence which
police officers watched her enter. The officers heard her ask to purchase "a
forty" from Appellant, for which she was given two rocks of crack cocaine that
she placed in her shirt pocket. She then went to the police station where she
surrendered the drugs and was searched again. She told the officers that she
had purchased the drugs, which had tested positive for cocaine, from
In short, the informant told the officer that she could purchase drugs
from Appellant, and that proved to be true. In other words, the informant
proved to be reliable, and that is supported by substantial evidence. See Taylor
v. Commonwealth, 987 S.W.2d 302, 305 (Ky. 1998) (concluding that findings of
trial court with respect to its denial of a motion to suppress were supported by
substantial evidence when "the very specific information from the informer
which was confirmed in every detail by independent police observation,
reasonably led the police to believe that the tip was sufficiently truthful and
reliable to justify" a vehicle stop). Some of that evidence was detailed in the
affidavit itself as required by Franks. 438 U.S. at 165. Moreover, the affidavit
includes "some of the underlying circumstances from which the officer
4 This was given to the informant in the form of two twenty-dollar bills which
had been photocopied.
concluded that the informant . . . was credible or [her] information reliable." 5
Gates, 438 U.S. at 165 (internal quotation marks omitted). Thus, we cannot
conclude that the officer's sworn affidavit was deliberately or recklessly
misleading, or that the trial court's decision was not otherwise supported by
2. The ruling on the motion was correct as a matter of law.
As the second step in our appellate review, we must conduct a de novo
review of the ruling on the motion to suppress to determine whether it was
correct as a matter of law. Pride, 302 S.W.3d at 49. To make this
determination, we apply the "totality of the circumstances" test developed by
the U.S. Supreme Court in Gates. Pride, 302 S.W.3d at 48.
The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the "veracity" and "basis
of knowledge" of persons supplying hearsay information, there is a
fair probability that contraband or evidence of a crime will be
found in a particular place. And the duty of a reviewing court is
simply to ensure that the magistrate had a "substantial basis for
. . . conclud[ing]" that probable cause existed.
Gates, 462 U.S. at 238-39. It is clear that in this case, the trial court had a
substantial basis for its conclusion.
As noted above, the affidavit stated that the officer received information
from "a reliable confidential informant that she had made a successful
controlled purchase of crack cocaine at [Appellant's address]." The affidavit
5 As noted, the affidavit asserted that the informant had made a successful
controlled purchase of crack cocaine at the address provided in the affidavit, that the
officer had listened to the audio of the purchase, that he had confirmed that a
controlled purchase had occurred, that the drugs had been field tested, and that the
location of the purchase as described by the informant had been confirmed.
further states that the swearing officer "[l]istened to the audio of the buy and
confirmed that a controlled purchase had occurred, field tested the drugs and
confirmed the location of the buy as described by the [informant]." This
information provides a substantial basis upon which a trial court could
conclude that there was "a fair probability that contraband or evidence of a
crime [would] be found" at Appellant's residence.
Id. at 438. Thus, we
conclude that the trial court's ruling on Appellant's motion was correct as a
matter of law. See Lovett v. Commonwealth,
103 S.W.3d 72, 78 (Ky. 2003)
(holding that "while a court may question an informant's motives, an 'explicit
and detailed description of alleged wrongdoing, along with a statement that the
event was observed first-hand, entitles [the informant's] tip to greater weight
than might otherwise be the case"' (quoting Gates, 462 U.S. at 234)).
B. Appellant's Batson Challenge
Appellant next argues that the trial court erred when it denied his Batson
motion which objected to the removal of Reginald Dooley, an African American,
from the jury pool. Appellant contends that the Commonwealth's striking of
Dooley from the venire constituted racial discrimination/in violation of the
Equal Protection Clause of the Fourteenth Amendment to the U.S.
Constitution. See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (declaring that
"the Equal Protection Clause forbids the prosecutor to challenge potential
jurors solely on account of their race or on the assumption that black jurors as
a group will be unable impartially to consider the State's case against a black
Claims of racial discrimination in jury selection are analyzed in a threestep process. Id. at 96-98. First, the defendant must make a prima facie
showing that the prosecutor has exercised a peremptory challenge on the basis
of race. Id. at 96. The defendant does this by: (1) "show[ing] that he is a
member of a cognizable racial group, and that the prosecutor has exercised
peremptory challenges to remove from the venire members of the defendant's
race"; (2) "rely[ing] on the fact . . . that peremptory challenges constitute a jury
selection practice that permits 'those to discriminate who are of a mind to
discriminate"'; and (3) showing "that these facts and any other relevant
circumstances raise an inference that the prosecutor used that practice to
exclude the veniremen from the petit jury on account of their race." Id.
(internal citations omitted). Second, once a prima facie showing is made, "the
burden shifts to the State to come forward with a neutral explanation for
challenging black jurors." Id. at 97. Finally, the trial court must then
determine if the defendant has established purposeful discrimination.
trial court's determination is afforded great deference and will only be
overturned if clearly erroneous. Harris v. Commonwealth, 134 S.W.3d 603, 612
During voir dire of this case, members of the jury pool were asked if they
knew Don Morehead, Appellant's attorney. Dooley responded that he and
Morehead were high school basketball teammates in 1979, and that he had
had no contact with Morehead since then. He further stated that the fact that
they were teammates in 1979 would not render him more favorable to the
defense, and that he would be fair and impartial. Nevertheless, the prosecutor
used a peremptory strike on Dooley.
We first note that Appellant made the requisite prima facie showing of
racial discrimination necessary for a Batson challenge: (1) Appellant is African
American, (2) Dooley is African American, (3) Dooley stated that his prior
acquaintance with Morehead would not render him more favorable to the
defense, (4) that he would be fair and impartial, and (5) the prosecutor struck
him from the jury pool. This is sufficient to raise an inference of racial
Next, we are satisfied that the prosecution met its burden of asserting a
race-neutral explanation for striking Dooley. First, the prosecutor asserted
that the fact that Dooley had been a high school basketball teammate of
Morehead's gave her cause for concern about the potential for bias. Second,
the prosecutor stated that Dooley had been on a jury the week prior to
Appellant's trial and had found the accused not guilty. 6 Thus, the prosecution
met its burden of producing a race-neutral reason for striking Dooley.
Finally, the trial court found that the race-neutral reasons offered by the
prosecution overcame Appellant's Batson challenge—that is, that Appellant had
not proven intentional discrimination.? With respect to the potential for bias,
6 The Christian Circuit Court apparently uses a jury pool that rotates on a
7 The opponent of the strike bears the burden of proof and persuasion.
e.g., Commonwealth u. Coker, 241 S.W.3d 305, 309 (Ky. 2007) (noting that the
opponent of the strike "bore the burden to prove discrimination at all times"); Purkett
v. Elem, 514 U.S. 765, 768 (1995) (stating that "the ultimate burden of persuasion
the trial judge noted that he would hope any of his former teammates would
give him the benefit of the doubt with regard to anything that he was involved
in, which was enough to overcome any Batson issue. Upon the record before
us, we cannot conclude that this finding is clearly erroneous. We therefore
conclude that Appellant has not carried his burden to prove purposeful racial
discrimination under the third prong of Batson, and hold that the trial court
did not clearly err in denying Appellant's motion. 8
C. The Motion for a Directed Verdict and Amended Indictment
Appellant argues next that the trial court erred when, after granting his
motion for a directed verdict on the charge of trafficking in marijuana within
1,000 yards of a school, it permitted the Commonwealth to "amend the
indictment" 9 to trafficking in marijuana, eight ounces or more. Appellant
regarding racial motivation rests with, and never shifts from, the opponent of the
8 Appellant did not argue to the trial court that the prosecution's second raceneutral assertion—i.e., that Dooley had been on a jury the week prior to Appellant's
trial that found a criminal defendant not guilty—was pretextual. Appellant, though,
now argues that five other members of Appellant's jury had served with Dooley on the
jury the previous week, and that the prosecutor's failure to use any peremptory strikes
against them proves the pretextual nature of its assertion. However, Appellant offers
no evidence that the prosecution's other peremptory strikes were used on members of
the venire that did not serve on that jury. For all we know, the prosecution's other
strikes were indeed used on members of the prior week's jury. The record does reflect
that the prosecution used one of its other peremptory strikes on a member of the
venire who had filed a complaint against one of the testifying officers; however,
Appellant has not shown that she was not on the prior week's jury. It is unclear
against whom the prosecution's other peremptory strike(s) was/were used. In any
event, because Appellant did not argue to the trial court that this assertion was
pretextual, we have no finding from that court which we could conclude was clearly
9 Although Appellant was charged by information, and not indictment, on this
count, we use the term "amend the indictment" for simplicity and to avoid any
confusion the phrase "amend the information" may cause.
argues that permitting the Commonwealth to amend the indictment after a
directed verdict was granted violated RCr 6.16. Because this issue is
preserved, we review the trial court's decision to permit amendment of the
indictment for abuse of discretion.
See Gilbert v. Commonwealth, 838 S.W.2d
376, 378 (Ky. 1991).
RCr. 6.16 states, in relevant part: "The court may permit an indictment,
information, complaint or citation to be amended any time before verdict or
finding if no additional or different offense is charged and if substantial rights
of the defendant are not prejudiced." (Emphasis added). By the rule's plain
language, a trial court may not permit an amendment after it has granted a
directed verdict on a count.
With respect to the original charge of trafficking in marijuana within
1,000 yards of a school, the trial court ruled as follows:
Trial Judge: All right. There has not been any testimony with
regard to location. I am going to, in essence, grant a directed
verdict with regard to trafficking within 1,000 yards of a school;
however, there is sufficient evidence to go to the jury of trafficking
in greater than eight ounces. So that is the instruction, assuming
that nothing else changes—that's the instruction I'm likely to give
with regard to Count Number 3 of the indictment.
Prosecutor: I guess the Commonwealth would move to amend the
count of the indictment based on the evidence.
Trial Judge: There's sufficient evidence in the record to do that.
I'm going to deny the motion for summary judgment on the other
counts, or for directed verdict, on the other counts. However, your
motion is preserved for the record.
Counsel for the defense then objected to the amendment; his objection was
overruled but noted for the record.
The parties disagree as to whether a motion for directed verdict was
actually granted. The Commonwealth argues that the trial judge's use of the
phrase "in essence" prevents the ruling from being a directed verdict. We
A trial judge cannot in essence grant a directed verdict but not actually
grant it. Counsel for the defense moved for a directed verdict, arguing that no
evidence had been offered with respect to Appellant's home being within 1,000
yards of a school. The trial court agreed and was therefore obliged to grant a
directed verdict of acquittal on that count. The "in essence" language is of no
consequence. Having granted a directed verdict of acquittal, the trial court had
no authority to permit amendment of that count of the indictment under RCr
6.16; for an amendment to have been permissible, the directed verdict would
first have to have been set aside. Furthermore, in this case, even if the trial
court had not granted a directed verdict of acquittal, our decision would be the
same because the indictment; as amended, charged an "additional or different
offense" in violation of RCr 6.16. 10 Thus, the trial court abused its discretion
10 Trafficking in marijuana within 1,000 yards of a school requires different
proof than trafficking in marijuana, eight ounces or more. The former requires proof
of physical proximity, while the latter requires proof of weight. While both involve
trafficking in marijuana, they are entirely different offenses. Moreover, trafficking in
marijuana, eight ounces or more, is not a lesser included offense of trafficking in
marijuana within 1,000 yards of a school—both are class D felonies. Thus, RCr 9.86,
which permits a jury to find a defendant guilty of a lesser included offense, is
Also, the amendment in this case is markedly different than the amendments
we have permitted in the past, where we have found the following not to qualify as
"additional or different" offenses: an allegation that the defendant is guilty of the
underlying charge by complicity, because "one who is found guilty of complicity to a
crime occupies the same status as one being guilty of the principal offense," see, e.g.,
and Appellant's conviction for trafficking in marijuana, eight ounces or more
must be reversed, and his sentence for that conviction vacated.
D. Penalty Phase Admission of Testimony of Original and Amended
Appellant next argues that the penalty phase introduction of the original
dismissed charges from his prior convictions was erroneous. Specifically, the
Commonwealth elicited testimony from the deputy circuit clerk as to
Appellant's original 2001 charges of trafficking in a controlled substance and
trafficking in marijuana, which were later amended to possession of a
controlled substance and possession of marijuana; he was convicted of the
amended charges. The Commonwealth also elicited testimony as to Appellant's
Commonwealth v. Combs, 316 S.W.3d 877, 880 (Ky. 2010) (quoting Parks v.
Commonwealth, 192 S.W.3d 318, 326-27 (Ky. 2006) (internal alterations omitted);
amending an assault charge to change the mental state required to be proven from
"intentionally" to "wantonly," Owens v. Commonwealth, 329 S.W.3d 307, 314 (Ky.
2011); amending a charge of possession of drug paraphernalia to include additional
paraphernalia not included in the original indictment, because "[i]dentifying additional
items of paraphernalia did not charge Appellant with an 'additional or different'
offense," Johnson v. Commonwealth, 105 S.W.3d 430, 442-43 (Ky. 2003); amending an
indictment from second-degree PFO to first-degree PFO, because "PFO is a status, not
a criminal offense," Riley v. Commonwealth, 120 S.W.3d 622, 631 (Ky. 2003);
designating a different subsection of the statute under which the defendants were
originally charged, because the offense was the same and no additional evidence was
required to prove the amended offense, Schambon v. Commonwealth, 821 S.W.2d 804,
810 (Ky. 1991); amending a PFO count to list additional previous crimes, because "the
only 'offense' charged in [that] count of both the original and amended indictment is
that of charging the Appellant of being a [PFO] in the first degree," Henderson v.
Commonwealth, 636 S.W.2d 648, 651 (Ky. 1982); and amending the indictment to
change the date of the occurrence of the alleged offense, Stephens v. Commonwealth,
397 S.W.2d 157, 158 (Ky. 1965). But see Frizzell v. Commonwealth, 511 S.W.2d 200,
200 (Ky. 1974) (holding that forgery and uttering a forgery are different offenses); and
Maum v. Commonwealth, 490 S.W.2d 748, 749-50 (Ky. 1973) (finding that amending a
charge of public nuisance by permitting trafficking in narcotics to also include public
nuisance by permitting persons to be under the influence of narcotics, to engage in
fights, to park and congest the public ways, and to be under the influence of
intoxicating beverages and/or to engage in disorderly conduct constituted additional
or different offenses). Notably, all of these amendments were made before a verdict
original 2006 charges of trafficking in a controlled substance and trafficking in
marijuana, which were also later amended to possession of a controlled
substance and possession of marijuana; he was again convicted of the
amended charges. This issue is unpreserved; however, we invoke our authority
under RCr 10.26 and review for palpable error. 11
During the penalty phase of a jury trial, KRS 532.055(2)(a)(2) allows the
jury to hear "[t]he nature of prior offenses for which [the defendant] was
convicted." Appellant argues that this does not include the original charges of
an indictment that was amended prior to final judgment and conviction. We
Nothing in KRS 532.055(2)(a) permits a jury to hear evidence during the
penalty phase of prior charges that have been amended—it is only permitted to
hear evidence of "the nature of the prior offenses for which [the defendant] was
convicted." KRS.055(2)(a)(2) (emphasis added). And we have recognized that "it
is also well settled that the Commonwealth cannot introduce evidence of
charges that have been dismissed or set aside."
Cook v. Commonwealth, 129
S.W.3d 351, 365 (Ky. 2004) (citations omitted); see also Robinson v.
Commonwealth, 926 S.W.2d 853, 854 (Ky. 1996) (holding that "KRS
532.055(2)(a) permits the introduction of prior convictions of the defendant, not
prior charges subsequently dismissed"). For purposes of the penalty phase,
11 Under the palpable error standard, an unpreserved error may be noticed on
appeal only if the error is "palpable" and "affects the substantial rights of a party," and
even then relief is appropriate only "upon a determination that manifest injustice has
resulted from the error." RCr 10.26.
criminal charges that have subsequently been amended are the functional
equivalent of dismissed charges, which we have established to be
impermissible as evidence in a sentencing hearing.
See Chavies v.
Commonwealth, 354 S.W.3d 103, 115 (Ky. 2011) (holding that "the introduction
of the indictment showing the charges that were later dismissed and amended
was erroneous") (emphasis added). The prosecution may only introduce
evidence of the nature of a defendant's prior offenses, including the charges for
which he was convicted, and the trial court erred by permitting introduction of
the pre-amended charges.
However, for Appellant to be successful on this issue we must also find
that this error was palpable. In arguing that the error was indeed palpable,
Appellant contends that he was prejudiced as evidenced by the jury's
recommendation of the maximum sentence on each of the underlying charges.
As such, he argues, prejudice can be presumed. Under the facts presented in
this case, we agree.
We recently addressed a very similar issue in Chavies, where the
defendant's indictment, showing dismissed and amended charges, was
introduced during the penalty phase of his trial. In that case we concluded
that the error was not palpable. In support of that conclusion, we noted that
(1) the defendant did not receive the maximum penalty for one of the
convictions for which he was being sentenced, and (2) "the dismissed and
amended offenses were never pointed out to the jury by the trial judge, the
Commonwealth, or the Commonwealth's witness." Id. at 115. Here, the
opposite is true. Appellant received the maximum penalty on all counts for
which he was convicted. Moreover, the Commonwealth not only elicited the
testimony from the deputy circuit clerk regarding the original charges, but it
also emphasized the prior amended charges in its closing argument to the
To be sure, there is no way of knowing whether or to what extent the
introduction of the original charges influenced the jury to recommend the
maximum penalty on all convictions. However, in reversing a similar decision
we noted the following: "It has been observed that the maximum sentence has
been imposed by the verdict, and it would be pure speculation for us to ponder
what, if any, portion of the punishment stemmed from the improper argument
of counsel." Taulbee v. Commonwealth, 438 S.W.2d 777, 779 (Ky. 1969)
(reversing and granting defendant new trial after the prosecutor made improper
comments during closing arguments).
We conclude that introducing the original charges of Appellant's prior
convictions constitutes palpable error in that it affected a substantial right to
due process, resulting in a manifest injustice. See RCr 10.26. We therefore
reverse and remand to the trial court for a new penalty phase, with
During closing arguments, the prosecutor stated:
[Appellant], within the past five, six, seven, eight years has been given
several chances himself. He had two prior charges of trafficking that
were amended to possession charges, and he was only given a one-year
sentence on each one of those. So please think about the prior chances
that he's been - given and the fact that he did have the opportunity to take
advantage of those chances and to do the right thing. But he kept
committing the crimes.
instructions that the trial court not permit the Commonwealth to introduce
prior amended charges for which Appellant was not convicted.
E. Appellant's Status as a Persistent Felony Offender
Appellant next argues, and the Commonwealth agrees, that his
conviction as a first-degree PFO is invalid'as to Count 1 of the indictment
because the evidence established that he had only one prior felony conviction
at the time he committed the offense charged in Count 1. Although this issue
is not preserved, we invoke our authority to review for palpable error under RCr
Under KRS 532.080, the Kentucky PFO statute, to be found guilty of
being a first-degree PFO, a defendant must stand "convicted of a felony after
having been convicted of two (2) or more felonies . . . at the time of commission
of the felony for which he now stands convicted." Here, Appellant had only
been convicted of one felony before the commission of the offense stated in
Count 1 of his indictment—i.e., the trafficking in cocaine charge for the June
27, 2006 controlled purchase. He was convicted of possession of a controlled
substance (cocaine) on November 6, 2002. Appellant's second conviction did
not come until November 29, 2006—some five months after the commission of
the offense charged in Count 1. Thus, the jury should have been instructed on
second-degree PF0 14 for Count 1 of the indictment.' 5
See supra note 11.
Second-degree PFO status requires only one prior felony. KRS 532.080(2).
15 The trial court, however, properly instructed the jury on first-degree PFO on
the other counts, because Appellant had been convicted of two felonies at the time he
We conclude that the erroneous PFO jury instruction as to Count 1 of
the indictment constitutes palpable error. We have found palpable error where
a criminal defendant was convicted of being a PFO when the facts necessary to
convict him thereof, although capable of being proved, were not in the jury
instructions. See Carver v. Commonwealth, 303 S.W.3d 110, 123 (Ky. 2010);
Sanders v. Commonwealth, 301 S.W.3d 497, 499-500 (Ky. 2010). 16 Here,
unlike in Carver and Sanders, the facts necessary to convict Appellant of being
a first-degree PFO as to Count 1 were incapable of being proved. See also In re
Winship, 397 U.S. 358, 364 (1970) (holding that the "Due Process Clause
protects the accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is
charged"). Thus, we reverse Appellant's first-degree PFO conviction as to
Count 1, vacate his sentence enhancement on that count, and remand to the
trial court for a determination of whether Appellant is guilty of being a seconddegree PFO. See White v. Commonwealth, 770 S.W.2d 222, 223-24 (Ky. 1989)
(holding that a trial on the charge of second-degree PFO when a conviction for
first-degree PFO has been set aside on appeal does not violate double jeopardy
when there is sufficient evidence to convict of second-degree PFO).
committed the felonies described in those counts (stemming from the May 17, 2007
controlled purchase). See Bray v. Commonwealth, 703 S.W.2d 478, 479-80 (Ky. 1985)
(finding that "[c]ommission of a felony after conviction of the second felony gives a
defendant first-degree [PFO] status in his trial on the felony committed after his
The defendants in both Carver and Sanders had enough qualifying prior
felony convictions for a PFO conviction, but the jury instructions did not mention
Our decision to remand for a new penalty phase renders Appellant's
remaining allegations of error moot. However, we address them because they
are likely to recur on remand.
ISSUES LIKELY TO RECUR ON REMAND
A. Imposition of a Thirty-Year Sentence.
Appellant alleges that the trial court erred when it imposed a sentence of
thirty years' imprisonment, which he argues exceeds the maximum aggregate
allowable by Kentucky law. Specifically, Appellant contends that the maximum
allowable sentence under KRS 532.110(1)(c) is twenty years' imprisonment.
We agree that the longest sentence of imprisonment that Appellant could
have received is twenty years. KRS 532.110(1)(c) provides:
When multiple sentences of imprisonment are imposed on a
defendant for more than one (1) crime, . . . the multiple sentences
shall run concurrently or consecutively as the court shall
determine at the time of sentence, except that [t]he 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. . . .
KRS 532.080(6)(b) provides, in relevant part, that a first-degree PFO who
presently stands convicted of a Class C or D felony "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." And a second-degree
PFO "shall be sentenced to an indeterminate term of imprisonment pursuant to
the sentencing provisions of KRS 532.060(2) for the next highest degree than
the offense for which convicted." KRS 532.080(5). Because the highest degree
of offense that Appellant was convicted of was a Class C felony, the next
highest degree of offense is a Class B felony. Under KRS 532.060(2), a
conviction of a Class B felony carries a maximum prison sentence of "not less
than ten (10) years nor more than twenty (20) years."
Accordingly, as to Count 1, under KRS 532.080(5) and KRS 532.060(2),
Appellant could have been sentenced to ten to twenty years' imprisonment. 17
to ten to twenty years' imprisonment. Thus, the maximum allowable sentence
permissible under KRS 532.110(1)(c) is twenty years. A thirty-year sentence
was therefore erroneous.
This conclusion is clearly supported by the plain language of the statute,
its commentary, and our case law. KRS 532.110(1)(c) limits consecutive
sentences to "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"—here, twenty years for the Class C felony for which Appellant was
found guilty in Count 2, enhanced by his first-degree PFO conviction pursuant
to KRS 532.080(6)(b). 18
Moreover, the Commentary to KRS 532.110 supports our conclusion.
The third exception, provided in subsection (1)(c), places an upper
limit on the maximum term of imprisonment that can be imposed
through consecutive indeterminate terms. This subsection
establishes a maximum for accumulated indeterminate terms that
This assumes that Appellant is guilty of second-degree PFO as to Count 1.
18 If on remand the trial court finds Appellant guilty of second-degree PFO on
Count 1, the maximum enhanced prison sentence would still be twenty years
pursuant to KRS 532.080(5).
is equivalent to the maximum term that can be imposed on a
persistent felony offender under KRS 532.080. For example, if an
offender stands convicted of three offenses, . . . if the greatest of
his offenses is a Class C felony, his consecutive sentences when
accumulated could equal an indeterminate term having a
maximum of no more than twenty years.
This is precisely the situation presented by this case.
We discussed this issue squarely in Sanderson v. Commonwealth, 291
S.W.3d 610 (Ky. 2009) and came to the same conclusion. In that case, the
defendant was convicted of two Class C felonies and three Class D felonies, and
was sentenced to thirty-five years in prison. Although we reversed his
convictions and remanded for a new trial, we stated that "if he is convicted of
the same felonies after another trial, his maximum sentence cannot exceed
twenty years' imprisonment." 19
Because the plain language of the statute, its commentary, and our case
law all prohibit the imposition of a sentence of more than twenty years'
imprisonment for the crimes for which Appellant was convicted, on remand he
cannot be sentenced to more than twenty years in prison. 20
See also Hendley v. Commonwealth, 573 S.W.2d 662, 668 (Ky. 1978)
(reversing a sentence of twenty-five years (in the form of sentences of five, ten, and ten
years to be run consecutively) because "[t]he highest class of crime for which sentence
was imposed upon the appellant was . . . a Class C felony [which] limits the
appellant's sentence to no more than 20 years, instead of the 25 years under which he
now labors. Thus, the appellant faces five years of imprisonment more than that to
which he could legally be sentenced.").
We emphasize here the possibility (and permissibility) that Appellant will
again receive the maximum allowable penalty on all charges. It is not that Appellant
is immune from the maximum allowable penalty, but that he is entitled to be
sentenced within the confines of Kentucky's statutory provisions and due process of
B. Invocation of Unenhanced Penalty for Possession of Drug
Appellant's final argument is that he should be permitted to invoke KRS
218A.500 as amended to eliminate second or subsequent offender
enhancement for possession of drug paraphernalia.
KRS 218A.500 is the statutory provision that deals with the definitions,
offenses, and penalties associated with drug paraphernalia. As amended,
subsection (5) of that statute provides that "[a]ny person who violates any
provision of this section shall be guilty of a Class A misdemeanor." The
effective date for this statute as amended was April 13, 2010. 21 The trial court
instructed the jury to set a sentence for the possession of drug paraphernalia
charge in accordance with the laws which were in effect at the time he
committed his crime and at the time of his trial. At those times, possession of
drug paraphernalia, second or subsequent offense, was a Class D felony, which
carried a penalty of one to five years in prison.
Citing KRS 446.110, 22 Appellant seeks to invoke KRS 218A.500 as
amended, and be sentenced as a Class A misdemeanant.
Appellant's trial was in March 2010, and he was sentenced on September 8,
This statute states:
No new law shall be construed to repeal a former law as to any offense
committed against a former law, nor as to any act done, or penalty,
forfeiture or punishment incurred, or any right accrued or claim arising
under the former law, or in any way whatever to affect any such offense
or act so committed or done, or any penalty, forfeiture or punishment so
incurred, or any right accrued or claim arising before the new law takes
effect, except that the proceedings thereafter had shall conform, so far as
practicable, to the laws in force at the time of such proceedings. If any
penalty, forfeiture or punishment is mitigated by any provision of the
At common law, when the legislature modified or repealed a
statute, the courts no longer had the authority to enter any
judgment relying upon the prior law. KRS 446.110 modifies this
common law rule so that, unless the General Assembly specifically
designates otherwise, "offenses committed against the statute
before' its repeal, may thereafter be prosecuted, and the penalties
incurred may be enforced."
Lawson v. Commonwealth, 53 S.W.3d 534, 550 (Ky. 2001). Thus, the trial
court did not err in instructing the jury on the pre-amended possession of drug
paraphernalia penalties. However, KRS 446.110 also provides an exception: "If
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."
Accordingly, KRS 446.110 requires that the "penalty, forfeiture, or
punishment" be mitigated by a provision of the new law. The maximum
penalty for a Class D felony is five years' imprisonment. KRS 532.060(d). The
maximum penalty for a Class A misdemeanor is one year's imprisonment. KRS
532.090(2). Clearly, the as-amended version of KRS 218A.500 mitigates the
penalty or punishment for a conviction of possession of drug paraphernalia.
Moreover, judgment was "pronounced after the new law [took] effect."
KRS 446.110. Appellant's trial was in March 2010; the amendment to the drug
paraphernalia statute took effect on April 13, 2010; and the judgment of
new law, such provision may, by the consent of the party affected, be
applied to any judgment pronounced after the new law takes effect.
sentence (i.e., the final, appealable judgment) occurred on September 8,
Although Appellant did not bring the as-amended version of the drug
paraphernalia statute to the attention of the trial court, and therefore did not
"consent" to its retroactive application before judgment of sentence, we see no
reason not to permit him to request it on remand during the new penalty
In conclusion, we: (1) reverse Appellant's conviction for trafficking in
marijuana, eight ounces or more, and vacate his sentence for that conviction;
(2) reverse Appellant's conviction for first-degree PFO as to Count 1 of the
indictment, and vacate the enhanced sentence for that count; (3) affirm
Appellant's remaining convictions; and (4) remand this case to the Christian
Circuit Court for a new penalty phase consistent with this opinion.
All sitting. All concur.
23 We recognize that the facts surrounding this issue are quite unique in that
the statute's amendment went into effect after Appellant's trial and verdict, but before
his judgment of sentence. Ideally, defendants will consent to retroactive application
under KRS 446.110 before the trial. However, that was not possible in this case.
We note that if the sentence for Appellant's possession of drug paraphernalia
conviction is again run concurrently with the sentences for his trafficking convictions
then the retroactive application of KRS 218A.500 will make no difference to his term of
imprisonment. However, KRS 446.110 is available to him irrespective of its ultimate
effect, because the penalty defined by the old law is, in fact, mitigated by the penalty
defined by the new law. That is all that is required for the amendment to be available
to a defendant.
COUNSEL FOR APPELLANT:
Emily Holt Rhorer
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Attorney General of Kentucky
Perry Thomas Ryan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601