KEITH BRADLEY v. COMMONWEALTH OF KENTUCKY
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RENDERED: FEBRUARY 16, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000946-MR
KEITH BRADLEY
v.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 02-CR-00483
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, JUDGE; BUCKINGHAM,1 SENIOR JUDGE; HOWARD,2
SPECIAL JUDGE.
HOWARD, SPECIAL JUDGE: Keith Bradley appeals from an order of the Warren
Circuit Court denying his motion for a new trial under RCr 11.42 and CR 60.02. He
maintains that he is entitled to relief from judgment because he was not aware of the
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant
to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
2
Special Judge James I. Howard completed this opinion prior to the expiration of his Special Judge
assignment effective February 9, 2007. Release of the opinion was delayed by administrative handling.
elements of the offense with which he was charged, manufacturing methamphetamine,
and as such entered a guilty plea which was not knowing, intelligent and voluntary; that
the Kentucky Supreme Court has defined KRS 218A.1432(1)(b) in such a way as to
make it clear that his conduct did not constitute a crime and that his counsel provided
ineffective assistance by failing to so advise him. He also maintains that he was entitled
to an evidentiary hearing on the motion. For the reasons stated below, we affirm.
On July 15, 2002, an information was filed in Warren Circuit Court
charging Bradley with one count each of manufacturing methamphetamine, possession of
a controlled substance in the third degree and trafficking in a controlled substance in the
first degree. He was also charged with several traffic violations. The charges arose from
a traffic stop, at which time Bradley was found to be in possession of methamphetamine,
diazepam, and various components and equipment used in the production of
methamphetamine, including ephedrine, Prestone starting fluid, liquid fire, ether, sea salt,
batteries, hoses, baggies, a bean grinder, an electric scale and various plastic and
Tupperware-like containers.
On the same date the information was filed, July 15, 2002, Bradley entered
a plea of guilty on the manufacturing and trafficking counts, in exchange for the
Commonwealth’s recommendation of a 15 year sentence and the dismissal of the
possession count and the traffic violations. After engaging in the standard guilty plea
colloquy and upon finding that Bradley made a knowing and voluntary waiver of his
constitutional rights, the trial court accepted Bradley’s guilty plea. Bradley was
sentenced on August 5, 2002, in accordance with the Commonwealth’s recommendation
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and final judgment was entered the following day. Though opposed by the
Commonwealth, the circuit court probated Bradley’s sentence for a period of five years.
On November 13, 2002, his probation was revoked when a drug screen revealed that he
had used a controlled substance in violation of the terms of his probation. Bradley was
returned to prison to serve the remainder of his sentence.
On December 29, 2003, Bradley filed a pro se motion to vacate his
sentence pursuant to RCr 11.42. He was appointed counsel to represent him on that
motion, which was later supplemented to include a claim of entitlement to CR 60.02
relief. As a basis for his motion, Bradley argued that he would not have entered a guilty
plea had he known that Kotila v. Commonwealth, 114 S.W.3d 226 (Ky. 2003) required
the Commonwealth to prove his possession of all of the chemicals or all of the equipment
necessary to produce methamphetamine in order to sustain a conviction. He maintained
that had he known of Kotila, he would have proceeded to trial and would have prevailed.
Bradley also argued that he received ineffective assistance of counsel.
On January 21, 2005, the trial court entered an order denying that portion of
the motion which sought CR 60.02 relief from judgment and on April 15, 2005 denied
the remainder of the motion under RCr 11.42, both without conducting an evidentiary
hearing. This appeal followed.
Bradley now argues that the trial court committed reversible error in
denying his motion for a new trial, under both CR 60.02 and RCr 11.42. He maintains, as
he did in the circuit court, that if he had known of Kotila’s requirement that the
Commonwealth prove possession of all the chemicals or all of the equipment, he would
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not have entered a plea of guilty and would have gone to trial. Directing our attention to
the “Nazi”, “P2P” and “red phosphorus” methods of producing methamphetamine
described in Commonwealth v. Hayward, 49 S.W.3d 674 (Ky. 2001) and Fulcher v.
Commonwealth, 149 S.W.3d 363 (Ky. 2004), Bradley maintains that he did not possess
either anhydrous ammonia nor a tank to contain it, and therefore did not possess all of the
chemicals or all of the equipment necessary to produce methamphetamine. He argues
that his lack of knowledge as to the Kotilla requirements rendered his guilty plea
unknowing and involuntary. Having heard the oral arguments and closely examined the
record and the law, we find no basis for reversing the circuit court order.
In order to evaluate the issues raised herein, it is necessary for us to review
the recent history and development of the law in this area. KRS 218A.1432 was adopted
and became effective in 1998. As it read until 2005, that is, at all times relevant to this
case, this statute provided,
(1) A person is guilty of manufacturing methamphetamine when he
knowingly and unlawfully:
(a) Manufactures methamphetamine; or
(b) Possesses the chemicals or equipment for the manufacture of
methamphetamine with the intent to manufacture methamphetamine. ...
On June 12, 2003, the Kentucky Supreme Court issued its opinion in Kotila
v. Commonwealth, supra. This opinion became final on September 18, 2003, when
rehearing was denied. Kotila interpreted KRS 218A.1432(1)(b) to require the possession
of either all the necessary chemicals or all the necessary equipment for manufacturing
methamphetamine for a conviction under that section.
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Kotila is the authority of which Bradley complains that he was unaware.
We first note that the obvious reason why Bradley was not informed of Kotila prior to
pleading guilty, either by the court or by counsel, is that the Kotila opinion was not
rendered until some 10 months after his plea. Therefore, any claim for ineffective
assistance of counsel is without merit. Counsel cannot be required to anticipate
developments in the law that have not yet occurred. Taylor v. Commonwealth, 63
S.W.3d 151 (Ky. 2001). However, Bradley's claim that his guilty plea, to conduct
subsequently determined not to be a crime, was therefore not knowing and voluntary
requires further consideration.
In 2005 the legislature amended KRS 218A.1432 to read as follows:
(1) A person is guilty of manufacturing methamphetamine when he
knowingly and unlawfully:
(a) Manufactures methamphetamine; or
(b) With intent to manufacture methamphetamine possesses two (2) or
more chemicals or two (2) or more items of equipment for the
manufacture of methamphetamine. ...
This amendment, of course, was not – and could not have been – made
retroactive, so it has no direct application to Bradley or to this case. However, in 2006
the Supreme Court issued its opinion in Matheney v. Commonwealth, 191 S.W.3d 599
(Ky. 2006), and reversed itself, declaring that Kotila was “wrongfully decided.”
Matheney, 191 S.W.3d 599, 601. The Supreme Court declared in Matheney,
We construe the language in KRS
218A.1432(1)(b) that states 'the chemicals or equipment for
the manufacture of methamphetamine' to mean that one must
possess two or more chemicals or items of equipment with
the intent to manufacture methamphetamine to fall within the
statute. This construction is based on a common sense
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approach that gives proper import to the use of the plural
'chemicals.' Of course, any conviction must also satisfy the
scienter requirement contained in KRS 218A.1432(1)(b).
Matheney, 191 S.W.3d 599, 604.
Thus, under Matheney, the law is exactly the same both in cases governed
by the 2005 amendment to KRS 218A.1432(1)(b) and those governed by the preamendment statute. If a defendant possesses two or more of the necessary chemicals or
two or more of the necessary items of equipment for the manufacture of
methamphetamine, with the intent to manufacture, he can be convicted of manufacturing
methamphetamine.
It is significant that Matheney dealt with a case that arose and went through
the trial court before the Supreme Court issued its opinion in Kotila, the same situation as
in this case. Thus, Matheney is the controlling authority in this case and it is unnecessary
for us to analyze whether there might be a different result had Bradley entered his plea
during the time when Kotila was the law of Kentucky.
Bradley engaged in the guilty plea colloquy with the circuit judge and
stated on the record that he understood his plea, the waiver of his constitutional rights,
and the consequences of the plea. After a lengthy conversation with Bradley, the circuit
court accepted the plea as knowing, intelligent and voluntary. The burden rests with
Bradley, then, to overcome the strong presumption that the trial court’s ruling was correct
City of Louisville v. Allen, 385 S.W.2d 179 (1964) and to establish convincingly that he
was deprived of some substantial rights which would justify the extraordinary relief of
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setting aside a judgment of conviction and ordering a new trial. Dorton v.
Commonwealth, 433 S.W.2d 11 (Ky. 1968).
Bradley has not met this burden. The Kotila decision -- upon which he
bases his claim of error -- has been overruled and Matheney is the controlling authority
on this issue. It is clear from the record that Bradley did, in fact, possess at least two of
the chemicals and at least two of the items of equipment necessary for the manufacture of
methamphetamine. As such, we find no error in the denial of Bradley’s motion for RCr
11.42 relief. Because the motion could be resolved by reference to the record, no hearing
was required. Harper v. Commonwealth, 978 S.W.2d 311 (Ky. 1998).
For the same reasons, we are not persuaded by Bradley’s contention that he
is entitled to CR 60.02 relief. “[T]he determination to grant relief from a judgment or
order pursuant to CR 60.02 is one that is generally left to the sound discretion of the trial
court.” Schott v. Citizens Fidelity Bank and Trust Company, 692 S.W.2d 810 (Ky. App.
1985). The circuit court did not abuse that discretion in denying Bradley’s motion for CR
60.02 relief, and accordingly we find no error.
For the foregoing reasons, we affirm the order of the Warren Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Edwin Neal
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
ORAL ARGUMENT FOR
APPELLANT:
Tami Stetler
Assistant Attorney General
Frankfort, Kentucky
John Palombi
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
William Robert Long, JR
Frankfort, Kentucky
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