Opinion
NO. 2010-CA-000982-MR NO. 2011-CA-000489-MR
01-04-2013
THOMAS KEVIN SULLIVAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND THOMAS K. SULLIVAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Thomas Sullivan, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 04-CR-002625
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 04-CR-002625
OPINION
AFFIRMING APPEAL NO. 2010-CA-000982-MR
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
APPEAL NO. 2011-CA-000489-MR
BEFORE: MAZE, MOORE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Thomas Kevin Sullivan, pro se, brings Appeal No. 2010-CA-000982-MR from an April 23, 2010, order of the Jefferson Circuit Court denying Sullivan's Kentucky Rules of Civil Procedure (CR) 60.02 motion and Appeal No. 2011-CA-000489-MR from a January 27, 2011, order summarily denying Sullivan's Kentucky Rules of Criminal Procedure (RCr) 11.42 motion. We affirm Appeal No. 2010-CA-000982-MR and affirm in part, vacate in part, and remand Appeal No. 2011-CA-000489-MR.
In Appeal No. 2010-CA-000982-MR appellant identifies himself on the Notice of Appeal as Thomas Kevin Sullivan, and in Appeal No. 2011-CA-000489-MR appellant identifies himself on the Notice of Appeal as Thomas K. Sullivan. For clarity purposes we simply identify appellant as Thomas Kevin Sullivan.
In May 2007, Sullivan was indicted in Action No. 04-CR-002625 for manufacturing methamphetamine while possessing a firearm, possession of a firearm by a convicted felon, third-degree assault, disarming peace officers, illegal possession of drug paraphernalia while possessing a firearm, resisting arrest, carrying a concealed deadly weapon, disorderly conduct, third-degree criminal mischief, reckless driving, failure to give proper signal, and for being a first-degree persistent felony offender. At the time of trial upon the above indictment, Sullivan was also facing felony charges in two other actions (Action Nos. 05-CR-000675 and 06-CR-000364). Ultimately, Sullivan reached a plea agreement with the Commonwealth. In exchange for a guilty plea, the Commonwealth agreed to recommend a total sentence of twenty-five years' imprisonment as to all three pending criminal actions. On May 21, 2007, Sullivan entered a guilty plea, and he was sentenced to a total term of twenty-five years in accordance with the plea agreement.
Thereafter, Sullivan filed a CR 60.02 motion to set aside his sentence and also an RCr 11.42 motion to vacate sentence. In the CR 60.02 motion, Sullivan argued that double jeopardy was violated by using the same firearm to support both offenses of possession of a firearm by a convicted felon and of manufacturing methamphetamine while possessing a firearm. In his RCr 11.42 motion, Sullivan maintained that his guilty plea was not entered knowingly and intelligently because of ineffective assistance of trial counsel.
By order entered April 23, 2010, the circuit court denied Sullivan's CR 60.02 motion. Sullivan filed Appeal No. 2010-CA-000982-MR from the April 23, 2010, order. And, by order entered January 27, 2011, the circuit court denied Sullivan's RCr 11.42 motion without an evidentiary hearing. Sullivan filed Appeal No. 2011-CA-000489-MR from the January 27, 2011, order. Our Court will consider these appeals together on the merits.
APPEAL NO. 2010-CA-000982-MR
Sullivan contends that the circuit court erred by denying his motion under CR 60.02. Specifically, Sullivan claims that the constitutional prohibition against double jeopardy was violated by his indictment upon both offenses of possession of a firearm by a convicted felon and of manufacturing methamphetamine while possessing a firearm. Sullivan points out that the same firearm was improperly utilized to support both charges. We disagree.
To begin, CR 60.02 was designed to permit a defendant to raise grounds for relief unavailable by either direct appeal or RCr 11.42 motion. McQueen v. Commonwealth, 948 S.W.2d 415 (Ky. 1997); Davis v. Home Indem. Co., 659 S.W.2d 185 (Ky. 1983). Here, Sullivan's allegation that double jeopardy was violated is properly considered via a direct appeal and not a CR 60.02 motion.
Nevertheless, in this case, there was no double jeopardy violation. As concluded in Adams v. Commonwealth, 931 S.W.2d 465 (Ky. 1996), the penalty for offenses under Kentucky Revised Statutes (KRS) Chapter 218A (including manufacturing of methamphetamine) may be enhanced by the possession of a firearm per KRS 218A.992. Id. Therein, the Court held that the possession of a firearm under KRS 218A.992 was not a separate criminal offense but rather constituted a criminal status that enhances the sentence. Consequently, in our case, double jeopardy is not offended since possession of a handgun merely defines a status for purposes of increased sentencing. Id.
In sum, we conclude that the circuit court properly denied Sullivan's CR 60.02 motion.
APPEAL NO. 2011-CA-000489-MR
Sullivan asserts that the circuit court erred by denying his RCr 11.42 motion without an evidentiary hearing. Sullivan alleges that his trial counsel was ineffective for advising him to enter a guilty plea to manufacturing methamphetamine pursuant to KRS 218A.1432, thus rendering his guilty plea involuntarily. Sullivan argues that in July 2004 - when he committed the offense of manufacturing methamphetamine - KRS 218A.1432 required the possession of all the ingredients or all of the equipment necessary to manufacture methamphetamine per Kotila v. Commonwealth, 114 S.W.3d 226 (Ky. 2003). Sullivan contends that at the time of arrest he neither possessed all the ingredients nor all the equipment necessary to manufacture methamphetamine and, thus, could not have been found guilty of such offense. If he had been correctly advised of the law by trial counsel, appellant maintains that he would not have pleaded guilty to manufacturing methamphetamine.
To prevail, Sullivan must demonstrate that trial counsel rendered ineffective assistance and that such ineffective assistance was prejudicial - that is, appellant would not have pleaded guilty but would have insisted upon a jury trial. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). And, Sullivan is entitled to an evidentiary hearing if his allegations cannot be refuted upon the face of the record. See Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001).
In this case, Sullivan committed the offense of manufacturing methamphetamine in July 2004. Generally, the law in effect at the time of commission of the crime controls; thus, Sullivan was indicted under KRS 218A.1432 as amended in 1998 (1998 version). See Allen v. Commonwealth, 234 Ky. 832, 29 S.W.2d 548 (1930).
One year before Sullivan committed the offense of manufacturing methamphetamine, the Supreme Court rendered Kotila, 114 S.W.3d 226. Therein, the Supreme Court interpreted KRS 218A.1432 (1998 version) as requiring a defendant to possess all of the ingredients or all of the equipment to be guilty of manufacturing methamphetamine. Kotila, 114 S.W.3d 226. Kotila was rendered on June 12, 2003. Id.
Thereafter, effective June 20, 2005, the General Assembly amended KRS 218A.1432 (2005 version) to require only two or more chemicals or two or more items of equipment to be guilty of manufacturing methamphetamine. Then, some three years after Kotila and one year after KRS 218A.1432 was amended, the Supreme Court revisited its interpretation of KRS 218A.1432 (the 1998 version) in Matheney v. Commonwealth, 191 S.W.3d 599 (Ky. 2006). In Matheney, the Supreme Court reversed Kotila and its interpretation of KRS 218A.1432 (1998 version). Instead, the Matheney Court interpreted KRS 218A.1432 (1998 version) as only requiring the possession of two or more chemicals or two or more items of equipment to be guilty of manufacturing methamphetamine. Matheney, 191 S.W.3d 599.
Sullivan argues that at the time of arrest he neither possessed all of the ingredients or all of the chemicals necessary to manufacture methamphetamine. Sullivan believes that the Kotila interpretation of KRS 218A.1432 (1998 version) controls as he committed the offense in July 2004. See Kotila, 114 S.W.3d 226. Per Kotila, Sullivan maintains that he did not commit the offense of manufacturing methamphetamine under KRS 218A.1432 (1998 version). See Kotila, 114 S.W.3d 226. Consequently, Sullivan argues that trial counsel erroneously advised him that Matheney controlled in his case, thus precipitating his guilty plea thereto. See Matheney, 191 S.W.3d 599.
In this case, there was a dramatic shift in the interpretation of KRS 218A.1432 by the Supreme Court from 2003 to 2006. When Sullivan committed the offense of manufacturing methamphetamine in July 2004, KRS 218A.1432 (1998 version) was interpreted by our Supreme Court as requiring either all the ingredients or all the equipment necessary to manufacture methamphetamine to be guilty. See Kotila, 114 S.W.3d 226. Subsequently, in 2006, the Supreme Court substantially changed its interpretation of KRS 218A.1432 (1998 version) and held that only two or more ingredients or two or more items of equipment were necessary to be guilty of manufacturing methamphetamine. See Matheney, 191 S.W.3d 599. Thus, the Supreme Court extensively enlarged the ambit of KRS 218.1432 in 2006.
It is well-settled that the due process clause prevents the Court from interpreting "a statute in a manner which will result in the imposition of punishment for an act which was not punishable at the time it was committed." Commonwealth v. Hay, 987 S.W.2d 792, 795 (Ky. App. 1998). Most importantly, the due process class prohibits the court from retroactively applying such an expanded interpretation of a statue "where it produces an unforeseeable change in the law" and deprives a defendant of fair warning that his conduct is criminalized. Id.; Commonwealth v. Morris, 142 S.W.3d 654 (Ky. 2004).
The dissent believes that Matheney v. Commonwealth, 191 S.W.3d 599 (Ky. 2006), controls because "Sullivan was indicted in 2007 - well after the holding in Matheney abrogated Kotila." However, it is well-settled that the substantive law in effect at the time of commission of the crime controls, not the law in effect when a defendant is indicted. See Allen v. Commonwealth, 234 Ky. 832, 29 S.W.2d 548 (1930).
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As alleged by Sullivan, his conduct in July 2004 would not violate KRS 218A.1432 (1998 version) per Kotila; however, after Matheney, his same conduct in July 2004 would violate KRS 218A.1432 (1998 version). See Matheney, 191 S.W.3d 599; Kotila, 114 S.W.3d 226. If true, such a retroactive application of Matheney would certainly violate Sullivan's constitutional due process right. See Matheney, 191 S.W.3d 599. Such dramatic departure from established precedent certainly constitutes an unforeseen change in the law that effectively expanded the reach of KRS 218A.1432 (1998 version) and deprived Sullivan of fair warning under the due process clause. See Hay, 987 S.W.2d 792; Morris, 142 S.W.3d 654.
If, indeed, Sullivan did not possess all of the ingredients or all of the equipment necessary to manufacture methamphetamine when arrested in 2004, the application of KRS 218A.1432 (1998 version) as interpreted by Matheney would offend the due process clause. See Matheney, 191 S.W.3d 599; Hay, 987 S.W.2d 792. However, we are unable to resolve this contention of error upon the face of the record and believe Sullivan is entitled to an evidentiary hearing upon this sole issue. See Fraser, 59 S.W.3d 448.
Upon remand, the circuit court shall appoint Sullivan counsel and shall hold an evidentiary hearing upon Sullivan's claim that trial counsel erroneously advised him that Matheney applied and controlled in his case. See Matheney, 191 S.W.3d 599. After the evidentiary hearing, if the circuit court finds that trial counsel so advised Sullivan and if Sullivan's conduct was not criminalized under KRS 218A.1432 (1998 version) as interpreted by Kotila, Sullivan's trial counsel rendered ineffective assistance, and such ineffective assistance was certainly prejudicial. See Kotila, 114 S.W.3d 226; Strickland, 466 U.S. 668.
We view Sullivan's remaining contention of error as moot and without merit.
For the foregoing reasons, Appeal No. 2010-CA-000982-MR is affirmed, and Appeal No. 2011-CA-000489-MR is affirmed in part, vacated in part, and remanded for proceedings consistent with this opinion.
MOORE, JUDGE, CONCURS.
MAZE, JUDGE, CONCURS IN PART AND DISSENTS IN PART.
MAZE, JUDGE, CONCURRING IN PART AND DISSENTING IN PART: Respectfully, I dissent from the portion of the majority opinion which vacates the trial court's denial of Sullivan's RCr 11.42 motion. The majority correctly sets out the basis for Sullivan's ineffective assistance of counsel claim. In May 2007, Sullivan was indicted for manufacturing methamphetamine while possessing a firearm. Since the alleged manufacturing took place in July 2004, Sullivan was charged under the 1998 version of KRS 218A.1432. Sullivan argues that his trial counsel should not have recommended that he plead guilty without first challenging the applicable interpretation of the statute.
In Kotila v. Commonwealth, 114 S.W.3d 226 (Ky. 2003), the Kentucky Supreme Court interpreted KRS 218A.1432(1)(b) as requiring evidence of "all of the chemicals or all of the equipment necessary to manufacture methamphetamine." Id. at 237. Subsequently, however, in Matheney v. Commonwealth, 191 S.W.3d 599 (Ky. 2006), the Supreme Court held that Kotila incorrectly construed KRS 218A.1432(1)(b). The Court construed that statute's language which 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. Id. at 604.
Sullivan argues that he could not be convicted under Kotila's interpretation of KRS 218A.1432 because he did not possess all of the chemicals or all of the equipment necessary to manufacture methamphetamine. The majority agrees, and further takes the position that Matheney represents a change in law which cannot be retroactively applied to offenses committed prior to its effective date. The majority correctly notes that the Ex Post Facto Clauses of the United States and Kentucky Constitutions prohibit retroactive application of a judicial construction of a criminal statute where it produces an unforeseeable change in the law. Commonwealth v. Hay, 987 S.W.2d 792 (Ky. App. 1998).
However, the majority overlooks the fact that the interpretation of KRS 218A.1432 set out in Kotila was never applicable to Sullivan's case. Sullivan was indicted in 2007 - well after the holding in Matheney abrogated Kotila. The holding of Matheney applies to all cases arising under the 1998 version of KRS 218A.1432 after Matheney became final. Furthermore, there is no ex post facto violation because Matheney did not expand the construction of KRS 218A.1432 - it simply overruled a prior interpretation of that statute. Thus, Sullivan's argument that his attorney should have pursued the motion to dismiss the indictment pursuant to Kotila is moot since such action would have proven futile in light of the controlling authority in Matheney. Therefore, I would affirm the trial court's denial of Sullivan's RCr 11.42 motion without a hearing. BRIEFS FOR APPELLANT:
Thomas Sullivan, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky