JAMES CARTER v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 7, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002060-MR
JAMES CARTER
APPELLANT
APPEAL FROM SIMPSON CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
INDICTMENT NO. 97-CR-00091
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; BUCKINGHAM AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
James Carter appeals from a final judgment of
the Simpson Circuit Court entered on August 3, 1998, sentencing
him to prison for ten years following conviction by a jury for
trafficking in a controlled substance (cocaine) and being a
persistent felony offender in the second degree (PFO II).
Having
concluded that Carter’s previously probated felony conviction
qualifies under KRS1 532.080(2) for PFO II enhancement purposes,
we affirm.
1
Kentucky Revised Statutes.
After receiving numerous complaints about illegal drug
activity in the spring of 1997, the Kentucky State Police
targeted the area of the Simpco Terrace View Apartments as part
of an undercover drug operation.
Sergeant Jere Hopson worked
with and monitored undercover drug buys by a volunteer, who acted
as a confidential informant.
During a drug buy monitored by Sgt.
Hopson on the night of March 12, 1997, the confidential informant
went to the Simpco Terrace View Apartments and purchased 1.6
grams of cocaine from an individual he identified as Carter.
The
drug transaction was recorded on a hidden audiotape recorder.
Following a trial on June 24, 1998, at which Carter
testified, the jury found him guilty of trafficking in a
controlled substance (cocaine) in the first degree in violation
of KRS 218A.1412.
During the penalty phase of the trial, the
Commonwealth presented evidence that Carter had been convicted
previously of the felony offense of receiving stolen property and
two misdemeanor offenses.
When Carter committed the receiving
stolen property felony offense in July 1994, he was eighteen
years old. In March 1996, Carter had been sentenced to one year
on the receiving stolen property conviction, but the circuit
court placed him on probation for a period of five years rather
than ordering him to serve the one-year prison sentence.
Carter
testified that he was on probation at the time he committed the
trafficking offense on March 12, 1997.
At the end of the penalty
phase, the jury found Carter guilty of being a persistent felony
offender in the second degree and recommended a prison sentence
of ten years on trafficking in a controlled substance (cocaine)
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enhanced to the minimum prison sentence of ten years on the PFO
II conviction.
On June 29, 1998, Carter filed a motion for a new
trial.
He raised several issues including his claim that it was
error to convict him as a persistent felony offender because he
had never been imprisoned on a felony.
On July 20, 1998, the
trial court conducted a hearing on the motion for a new trial and
Relying on the Commentary to KRS 532.080,2
on sentencing.
defense counsel argued that if a defendant’s prison sentence for
a prior felony conviction had been probated, the probated
sentence could not be used for enhancement purposes for a
persistent felony offender conviction.
The trial court denied
the motion for a new trial and sentenced Carter to serve ten
years in prison.
This appeal followed.
On appeal, Carter raises the single issue of whether he
was properly convicted of the status offense of being a PFO II
when he had received a probated sentence on the underlying felony
conviction.
As he did in his argument before the circuit court,
Carter relies on the Commentary to the persistent felony offender
statute for his position that before he could be convicted as a
PFO II he must have been imprisoned on the underlying felony
conviction.
The current version of KRS 532.080 provides in relevant
part:
(2) A persistent felony offender in the
second degree is a person who is more than
2
The trial court noted that defense counsel had raised this
issue during the trial.
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twenty-one (21) years of age and who stands
convicted of a felony after having been
convicted of one (1) previous felony. As
used in this provision, a previous felony
conviction is a conviction of a felony in
this state or conviction of a crime in any
other jurisdiction provided:
. . . .
(c) That the offender:
1. Completed service of the sentence
imposed on the previous felony
conviction within five (5) years prior
to the date of commission of the felony
for which he now stands convicted; or
2. Was on probation, parole, conditional
discharge, conditional release,
furlough, appeal bond, or any other form
of legal release from any of the
previous felony convictions at the time
of commission of the felony for which he
now stands convicted; or
3. Was discharged from probation,
parole, conditional discharge,
conditional release, or any other form
of legal release on any of the previous
felony convictions within five (5) years
prior to the date of commission of the
felony for which he now stands
convicted[.]
The Commentary accompanying KRS 532.080 states in
relevant part:
Subsection (2) sets forth a definition
of a previous felony conviction. . . .
Subsection (c) requires that the defendant
must have been imprisoned for the prior
offense before it can be treated as a
previous felony conviction under this
section. The purpose of this requirement is
to restrict application of the habitual
offender statute to persons who have been
previously exposed to an institutional
rehabilitative effort.
As the trial court stated, the above-cited portion of
the Commentary appears to be in direct conflict with the express
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language of the statute.
The Commentary was promulgated in 1974
to accompany the new Penal Code enacted that year to provide some
assistance in construing the statutes in light of legislative
history.
It embodies revisions of the notes that previously
accompanied the final draft of the Penal Code in 1971.3
The
original 1974 version of KRS 532.080(2)(c) required a previous
felony conviction and “that the defendant was imprisoned under
sentence for such conviction prior to commission of the present
felony.”4
In 1976, KRS 532.080(2)(c) was amended to include
within the definition of previous felonies, convictions for which
the defendant received a probated sentence, which now appear in
Subsections 2 and 3.5
As the Court in Commonwealth v. Hinton6
stated with reference to the viability of the Commentary to the
revised version of KRS 532.080(2):
While the Commentary is a source of
interpretation for the original Act, once
there is an amendment the portion of the
Commentary on that subject loses its
validity. The Commentary cited supra was
cast in relation to a statute that required
actual imprisonment and is now repealed,
hence is no longer applicable.7
Consequently, Carter’s reliance on the Commentary is
misplaced.
The post-1976 version of KRS 532.080(2) clearly
authorizes the use of a prior felony conviction for which a
3
See Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (1976).
4
1974 Ky. Acts 406, § 280.
5
1976 Ky. Acts (Extra Session) 14, § 474.
6
Ky., 678 S.W.2d 388 (1984).
7
Id. at 390.
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defendant received a probated sentence as a predicate felony
conviction for PFO II status purposes.
longer required.8
Actual imprisonment is no
Since Carter was on probation for a felony
conviction for receiving stolen property at the time he committed
the trafficking offense, he was properly convicted of PFO II.
The trial court did not err in denying the motion for a new
trial.
The judgment of the Simpson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, KY
A. B. Chandler III
Attorney General
Carlton S. Shier, IV
Asst. Attorney General
Frankfort, KY
8
See also Commonwealth v. Richardson, Ky., 674 S.W.2d 515,
518 (1984)(affirming persistent felony conviction involving prior
conviction with probated sentence); Pedigo v. Commonwealth, Ky.
App., 644 S.W.2d 355, 358 (1982)(affirming persistent felony
conviction involving prior conviction with conditionally
discharged sentence which the Court equated with a probated
sentence).
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