CHESTER HOLLIFIELD v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 23, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002515-MR
CHESTER HOLLIFIELD
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
ACTION NO. 01-CR-00046
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Chester Hollifield (hereinafter “Hollifield”)
has appealed from the October 16, 2001, final judgment of the
Fayette Circuit Court entered following the entry of a
conditional guilty plea pursuant to RCr 8.09.
He was sentenced
to two concurrent twelve-month terms for amended charges of
criminal attempt to obtain a controlled substance by fraud in
violation of KRS 218A.140.
Pursuant to the terms of the plea
agreement, the remaining five charges were dismissed.
His guilty
plea was conditioned on his being able to appeal the denial of
his motion to suppress evidence obtained through use of the
Kentucky All Schedules Prescriptive Electronic Reporting system
(hereinafter “KASPER.”)
However, because the circuit court
failed to hold a competency hearing after receiving Hollifield’s
psychological evaluation, we are constrained to vacate the
judgment and remand.
As the facts do not appear to be in dispute, we will
only briefly address them.
Detective Lynn Thompson (hereinafter
“Detective Thompson”) received a complaint from Detective Dan
Smoot (hereinafter “Detective Smoot”) in December 2000 indicating
that Hollifield had been “doctor shopping”, or obtaining
controlled substances by fraud.
At that time, Detective Smoot
had been involved in a task force regarding Oxycontin in Eastern
Kentucky.
Following receipt of this complaint, Detective
Thompson requested a KASPER report pursuant to KRS
218A.202(6)(b).
KRS 218A.202 provides for an electronic system
for monitoring controlled substances, and requires every
dispenser in the Commonwealth or who is licensed by the Kentucky
Board of Pharmacy to report data for each controlled substance
dispensed.
Pursuant to KRS 218A.202(6)(b), “[t]he Cabinet for
Health Services shall be authorized to provide data to: . . . (b)
A state, federal, or municipal officer whose duty is to enforce
the laws of this state or the United States relating to drugs and
who is engaged in a bona fide specific investigation involving a
designated person.”
Once she received the information from the KASPER
system, Detective Thompson reviewed the report for overlapping
prescriptions, verified the information by contacting the
pharmacies, and compiled an independent list regarding those
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overlapping prescriptions.
She then contacted the prescribing
physicians to determined whether they would have prescribed the
controlled substance had they known of the previous
prescriptions.
Detective Thompson did not show the information
on the KASPER report to anyone.
Based upon Detective Thompson’s
testimony, the grand jury returned an indictment against
Hollifield for five counts of obtaining a controlled substance by
fraud.
Hollifield moved to suppress the evidence Detective
Thompson obtained through her use of the KASPER system as it was
obtained without a warrant.
The circuit court denied this
motion, noting that the statute was constitutional and that the
use of the statute by police and the Commonwealth did not invade
any of Hollifield’s rights.
Following this ruling, Hollifield
entered a conditional guilty plea, reserving the right to appeal
the propriety of the circuit court’s denial of his motion to
suppress.
This appeal followed.
On appeal Hollifield not only attacks the suppression
ruling but also argues before this Court that the case should be
remanded to the circuit court to allow for resolution of the
competency issue.
At a status conference on February 23, 2001,
Hollifield’s counsel moved the circuit court for a psychological
evaluation.
According to information counsel received from his
wife, Hollifield had been hallucinating in jail and at his
February 8, 2001, arraignment.
By order entered February 27,
2001, the circuit court granted Hollifield’s request and ordered
an examination by Kentucky Center for Psychiatric Care
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(hereinafter “KCPC”) to determine whether he was incompetent to
stand trial pursuant to KRS 504.060(3) and whether he should be
exculpated for his conduct under KRS 504.010(1).
Following
receipt of the report from KCPC, which is a sealed portion of the
certified record on appeal, counsel indicated that he would be
negotiating a plea agreement with the Commonwealth.
However, a
competency hearing was never held and the circuit court later
allowed Hollifield to enter a conditional guilty plea.
Although Hollifield concedes that the issue of his
competency was not preserved, the Supreme Court made it clear in
Thompson v. Commonwealth, Ky., 56 S.W.3d 406 (2001), that once
raised, a defendant cannot waive the issue of competency.
Pursuant to KRS 504.100, the court is to appoint a psychologist
or psychiatrist to examine a defendant, and to treat and report
on his or her mental condition when “the court has reasonable
grounds to believe the defendant is incompetent to stand trial.”
Once the report is filed, “the court shall hold a hearing to
determine whether or not the defendant is competent to stand
trial.”
Here, based upon counsel’s assertion regarding
Hollifield’s apparent hallucinations, we believe the circuit
court had reasonable grounds to question whether he was competent
to stand trial and to order a competency evaluation.
Pursuant to
Thompson, once it is established that reasonable grounds existed,
it is up to the trial to determine whether a retrospective
competency hearing is permissible and, if so, to conduct a
competency hearing.
Therefore, we vacate the circuit court’s
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judgment and remand the matter for further proceedings in light
of Thompson, supra.
As to the issue regarding the use of information
obtained from the KASPER system, this Court recently issued the
opinion of Thacker v. Commonwealth, Ky.App., __ S.W.3d __ (2002),
which directly addresses the issues raised in this appeal
regarding the KASPER system and is binding here.
In Thacker,
this Court rejected both of the appellant’s arguments that the
detective’s use of the information received from the KASPER
report in communication with the doctors and before the grand
jury violated the confidentiality provisions of KRS 218A.202 and
that the examination of the data from the KASPER report was an
unreasonable search and seizure under the federal and Kentucky
Constitutions.
We also agree with the trial court that requirement of
“a bona fide specific investigation involving a designated
person” pursuant to KRS 218A.020(6)(b) was also satisfied in this
case.
Detective Thompson received a complaint from Detective
Smoot of the state police in Hazard, who had received a complaint
of doctor shopping regarding Hollifield.
The receipt of this
information from a detective, as opposed to an anonymous tipster,
satisfied the verified complaint requirement.
Therefore, there
was sufficient evidence to justify a search of the KASPER system.
The circuit court did not commit any error in denying the motion
to suppress.
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For the foregoing reasons, the judgment of the Fayette
Circuit Court is vacated and remanded for further proceedings in
light of Thompson, supra.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Alicia A. Sneed
Lexington, KY
A. B. Chandler, III
Attorney General
William Robert Long, Jr.
Assistant Attorney General
Frankfort, KY
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