SCOTTIE ELKINS V. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 17, 2004; 10:00 a.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001569-MR
SCOTTIE ELKINS
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
INDICTMENT NO. 02-CR-00220
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON, SCHRODER, AND TAYLOR, JUDGES.
MINTON, JUDGE:
Scottie Elkins appeals from a judgment of the
Laurel Circuit Court sentencing him to seven years following his
plea
of
guilty
methamphetamine.
Elkins
to
criminal
attempt
to
manufacture
We affirm.
argues
that
the
circuit
court
abused
its
discretion in refusing to allow him to withdraw his guilty plea
prior to sentencing.
He maintains that Kotila v. Commonwealth,1
published in the period between the entry of his plea and his
sentencing hearing, effectively precluded his liability for the
1
Ky., 114 S.W.3d 226 (2003).
crime to which he pleaded guilty and thereby rendered his plea
unintelligent and involuntary.
In November 2002, Elkins was charged with possession
of anhydrous ammonia with intent to manufacture methamphetamine.
The
indictment
manufacturing
was
subsequently
methamphetamine
amended
by
knowingly
to
a
charge
and
of
unlawfully
possessing the chemicals and equipment for the manufacture of
methamphetamine
with
the
intent
to
do
so.
Elkins
initially
entered a plea of not guilty but then decided to accept the
Commonwealth’s
offer
on
a
plea
of
guilty
that
included
a
reduction of the charge from manufacturing methamphetamine, a
class
B
felony,
to
criminal
methamphetamine, a class C felony.
a sentence of seven years.
June 2, 2003.
attempt
to
manufacture
The Commonwealth recommended
Elkins entered a plea of guilty on
At his sentencing hearing on June 20, 2003,
against his attorney’s recommendation, Elkins moved to withdraw
his
guilty
plea,
citing
Kotila
published on June 12, 2003.2
v.
Commonwealth,
which
was
The circuit court refused to grant
his motion and entered final judgment and sentence in accordance
with the plea agreement.
KRS 218A.1432(1) provides:
A
person
is
guilty
of
manufacturing
methamphetamine when he knowingly and unlawfully:
2
Id.
-2-
(a)
Manufactures methamphetamine; or
(b)
Possesses the chemicals or equipment
for the manufacture of methamphetamine
with the intent to manufacture methamphetamine.
In Kotila, the Kentucky Supreme Court interpreted the
wording of the statute to mean that in order for a defendant to
be found guilty under part (b), he or she has to possess all the
chemicals necessary for the manufacture of methamphetamine.3
Elkins argues that because the initial charge against
him
was
for
possession
of
one
ingredient
only
(anhydrous
ammonia), under Kotila, he could not possibly have been found
guilty of manufacturing methamphetamine.
Elkins maintains that
because the state of the law was unsettled when he entered his
plea, pending the outcome in Kotila, the plea was necessarily
involuntary and unintelligent.
He argues that he did not have
real notice of the charge against him or an understanding of
what he was being asked to admit.
Consequently, he asserts, the
circuit court abused its discretion in refusing to allow him to
withdraw the plea.
Kentucky
Rules
of
Criminal
Procedure
provides that a plea of guilty may be withdrawn.
3
Id. at 240-41.
-3-
(RCr)
8.10
The motion to
withdraw must be granted if the plea was involuntary.4
plea
was
voluntary,
however,
the
decision
to
If the
allow
withdrawal is within the trial court’s discretion.5
the
A trial
court abuses its discretion when it renders a decision which is
arbitrary,
unreasonable,
unfair,
or
unsupported
by
legal
principles.6
Generally,
a
plea
cannot
be
automatically
rendered
involuntary by a subsequent change in the relevant law.
In
Brady v. United States,7 the United States Supreme Court held
that
a
plea
was
not
rendered
involuntary
simply
because
a
subsequent case held that the maximum possible penalty for the
crime was less than the defendant was told at the time his plea
was entered.
The Court reasoned as follows:
[A] voluntary plea of guilty intelligently
made in the light of the then applicable law
does not become vulnerable because later
judicial decisions indicate that the plea
rested on a faulty premise.
A plea of
guilty triggered by the expectations of a
competently counseled defendant that the
State will have a strong case against him is
not subject to later attack because the
defendant’s lawyer correctly advised him
with respect to the then existing law as to
possible penalties but later pronouncements
of the courts, as in this case, hold that
4
Rodriguez v. Commonwealth, Ky., 87 S.W.3d 8, 10 (2002).
5
Id.
6
Goodyear Tire and Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 581
(2000).
7
397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
-4-
the maximum
penalty
for
the
crime
in
question
was
less
than
was
reasonably
assumed at the time the plea was entered.8
Arguably, Elkins’s situation is distinguishable from
that of the defendant in Brady.
In Elkins’s case, the issue is
the defendant’s knowledge or understanding of the prerequisites
or preliminary proof required to sustain a charge pursuant to
the statute under which he is being charged, whereas, in Brady,
the
issue
was
the
impact
of
the
defendant’s
knowledge
or
understanding of the potential length of the sentence on his
decision to plead guilty.
This distinction is not critical, however, because we
are simply not convinced that even under the holding in Kotila,
Elkins’s
conduct
could
not
meet
the
attempt to manufacture methamphetamine.
elements
for
criminal
The Kentucky Supreme
Court stressed that its decision in Kotila did “not mean that
there
could
never
be
a
conviction
manufacture methamphetamine.”9
of
criminal
attempt
The Court went on to explain as
follows:
For example, a defendant who possessed less
than
all
the
necessary
chemicals
to
manufacture
methamphetamine
could
be
convicted of criminal attempt to violate
KRS 218A.1432(1)(a) if he had already begun
the manufacturing process. [ ... ] Or, the
defendant
may
engage
in
other
actions
8
Id., 397 U.S. at 757.
9
to
Kotila, 114 S.W.3d at 245.
-5-
leaving no
intent.10
reasonable
doubt
of
a
criminal
An examination of the record in this case reveals that
Elkins
may
well
have
possessed
all
of
the
ingredients
to
manufacture methamphetamine, notwithstanding the fact that the
initial
charge
ammonia only.
against
him
was
for
possession
of
anhydrous
The post-arrest complaint in the police citation
states that Elkins “had in his possession all the precursor[s]
to manufacture methamphetamine.” (Emphasis added.)
specifies
that
“subject
had
several
packs
of
It further
pseudophedrine,
lithium batteries, 62 grams of crushed pseudophedrine,” as well
as “a propane tank filled with anhydrous ammonia” in the back
seat of his car.
lists
only
three
Therefore, although the citation specifically
of
the
six
ingredients
necessary
to
the
manufacture of methamphetamine (the remaining ingredients being
salt, drain cleaner, and ether),11 the fact that a considerable
quantity of the pseudophedrine tablets was described as being
crushed suggests that Elkins may have “begun the manufacturing
process” as it is described in Kotila.
The complaint also
states
admitted
that
the
“subject
[Elkins]
methamphetamine.” (Emphasis added.)
10
Id. at 245.
11
See id. at 236.
-6-
openly
to
making
From
allegedly
had
the
in
evidence
his
in
the
possession
record,
all
the
therefore,
ingredients
Elkins
for
the
manufacture of methamphetamine, or had started to manufacture
methamphetamine
tablets.
as
evidenced
by
the
crushed
pseudophedrine
Furthermore, he allegedly admitted as much to police.
This evidence was more than adequate to sustain a charge of
attempt to manufacture methamphetamine under the law as it stood
both before and after the decision in Kotila.
Elkins
has
drawn
our
attention
to
a
Fifth
Circuit
Court of Appeals case, United States v. Presley,12 in which it
was
held
that
withdraw
their
the
defendants
guilty
pleas
should
prior
have
to
been
allowed
sentencing
intervening United States Supreme Court opinion.
to
due
an
to
We note that
this case is not binding precedent13 and that it has been treated
critically in other jurisdictions.14
distinguishable
drew
into
district
because
serious
court.15
the
intervening
question
The
Furthermore, the case is
Fifth
the
Supreme
jurisdiction
Circuit
was
of
Court
opinion
the
federal
concerned
that
the
appellants may have been “sentenced for acts which may not have
12
478 F.2d 163 (5th Cir. 1973).
13
See Presnell Constr. Managers,
134 S.W.3d 575, 581 (2004).
Inc.
v.
EH
Constr.,
LLC,
14
Ky.,
See United States v. LeFaivre, 507 F.2d 1288, 1297, n.13 (4th Cir.
1974).
15
See United States v. Ramos, 923 F.2d 1346, 1359 (9th Cir. 1991).
-7-
constituted a federal offense.”16
as
we
have
noted,
the
By contrast, in Elkins’s case,
description
in
the
police
citation
contains sufficient factual predicates to sustain a charge under
the interpretation of the statute in Kotila.
Kotila did not in
any way alter the underlying circumstances of Elkins’s plea in
such a way as to render it involuntary.
The circuit court did
not, therefore, abuse its discretion in refusing to allow Elkins
to withdraw his guilty plea.
For the foregoing reasons, the order of the Laurel
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Irvin J. Halbleib
Appellate Public Advocate
Louisville, Kentucky
Gregory D. Stumbo
ATTORNEY GENERAL OF KENTUCKY
Gregory C. Fuchs
ASSISTANT ATTORNEY GENERAL
Frankfort, Kentucky
16
Presley, 478 F.2d at 167.
-8-
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