Opinion
NO. 2011-CA-002019-MR
02-15-2013
DAVID GRAHAM APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: David E. Graham, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 08-CR-000523
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND STUMBO, JUDGES. COMBS, JUDGE: David Graham appeals the order of the Jefferson Circuit Court that denied his motion for relief which he had filed pursuant to Kentucky Rule[s] of Civil Procedure (CR) 60.02. After our review, we affirm.
Graham was convicted by a jury of illegal possession of a controlled substance on December 4, 2008. Instead of being sentenced by the jury, Graham entered a sentencing agreement with the Commonwealth. He entered a plea of guilty to the charges of illegal possession of a controlled substance (subsequent offender) and persistent felony offender (PFO) in the first degree. He received a sentence of ten-years' incarceration for the possession charge, which was enhanced to eighteen years by virtue of the PFO conviction.
On August 22, 2011, Graham filed a motion in the trial court asking that the court vacate, set aside, modify, or correct his sentence. The court denied his motion on September 19, 2011, and this appeal follows.
Graham argues that double jeopardy was implicated and violated by the enhancement of his sentence by coupling the subsequent offender status with the PFO charge. We disagree.
Graham was convicted of illegal possession of a controlled substance in the first degree (subsequent offender) pursuant to Kentucky Revised Statute[s] (KRS) 218A.1415(2), part of the Controlled Substances Act. At the time of his conviction in 2007, a first offense was a Class D felony, and any subsequent offenses were Class C felonies. Additionally, in 2007, a person convicted of PFO in the first degree based upon a Class C felony would be subject to an indeterminate sentence ranging between ten and twenty years. KRS 532.080(6)(b).
Our courts have analyzed whether this double enhancement is a violation of double jeopardy. In Peyton v. Commonwealth, 931 S.W.2d 451(Ky. 1996), our Commonwealth's highest court clearly stated that: "The PFO statute is applicable to the violation of the Controlled Substance Act, even if the Act is outside the penal code and has its own specific sentencing structure[.]" (citing Harrison v. Commonwealth, 842 S.W.2d 531 (Ky. App. 1993)). In Harrison, the court relied on Dawson v. Commonwealth, 756 S.W.2d 935 (Ky. 1988), which held that the prosecution must choose either the PFO or the subsequent offender enhancement. This premise of Dawson was upheld by Gray v. Commonwealth, 979 S.W.2d 454 (Ky. 1998).
However, four years later, our Supreme Court revisited this issue and overruled Gray in Morrow v. Commonwealth, 77 S.W.3d 558 (Ky. 2002). In Morrow, the defendant had pled guilty to being a subsequent offender and second-degree PFO pursuant to KRS 532.080(5). The Court interpreted the statutory scheme as reflecting the intent of the General Assembly to deal more harshly with repeat controlled-substance offenders than others. It then held that one previous offense could not be used two different ways -- but that if a defendant had previously been convicted of more than one offense, the separate offenses qualified as separate enhancements. In order to apply the subsequent offender enhancement, at least one of the previous offenses had to be the same charge as the present charge. In unequivocal language, the Court concluded as follows:
Because Appellant's prior criminal record contains two convictions for first degree trafficking in a controlled substance, the trial court properly sentenced him in accordance with both the KRS 218A.1412 "second or subsequent offense" enhancement and the KRS 532.080(5), second degree [sic] PFO enhancement.Id. at 564. The Morrow holding dictates that in the case before us, if Graham had a previous conviction for first-degree possession as well as some other felony conviction upon which the Commonwealth relied in order to charge him with PFO, the court properly applied both the subsequent offender and the PFO enhancements.
The record reveals that Graham indeed had a previous conviction of illegal possession of a controlled substance in the first degree. Therefore, the subsequent offender enhancement was appropriate. Furthermore, Graham was convicted of a felony in May 2007 that provided a basis for the PFO charge. Accordingly, Graham's enhanced sentence did not violate his protection against double jeopardy.
We affirm the order of the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: David E. Graham, pro se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
David B. Abner
Assistant Attorney General
Frankfort, Kentucky