IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER, _
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
·BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: NOVEMBER 2, 2017
NOT TO BE PUBLISHED
2017-SC-000110-DG
COMMONWEALTH OF"KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS
v. CASE NO. 2015-CA-001916-MR
MONTGOMERY CIRCUIT COURT NO. lS~CR-00079
MANDY HUGHES APPELLEE
MEMORANDUM OPINION OF THE COURT
REVERSING
Mandy Hughes sold to a confidential i.Ilformant ten capsules containing
heroin, the aggregate weight of which amounted to less than two grams of
heroin. She was indicted for trafficking in a controlled substance under
Kentucky Revised Statute (KRS) 218A.1412(1)(c), 1 a statute creating an offense
iEffective June 29, 2017, the legislature amended KRS 218A.1412 to now state the
following:
(1) A person is guilty of trafficki,ng in a controlled substance in the first
degree when he or she knowingly and unlawfully traffics in:
(b) Two (2) grams or more of methamphetamine;
(d) Any quantity of heroin ...
As a result of this legislative amendment, the conflict at the center of this case, and
any future case with this issue, no longer exists because possessing any quantity of
punishable as a Class C felony with five fo ten years' imprisonment for
trafficking two or more grams or ten or more dosage units of a Schedule I
Controlled Substance, which classification includes heroin. Hughes moved the
I • •
trial court to amerid the indictment. She argued that she was ~mproperly
charged, the proper charge being under KRS 218A.1412(1)(e), a Class-D felony
punishable by one to five years'. imprisonment for trafficking in less than two
grams of a Schedule I Controlled Substance.
The trial court denied Hughes's motion, concluding that the
Commonwealth exercised its discretion in determining under which section of
/
KRS 218A.1412 to prosecute Hughes. Hughes then entered a conditional guilty
plea to the charge in the indictment and appealed the trial court's ruling to the
Court of Appeals. The Court of Appeals reversed the ruling of the trial court
and held that
. a statutory conflict existed within KRS 21 BA.1412 such that
. '
Hughes, having trafficked in less than two grams of heroin, could only be
charged with a Class D felony under KRS 218A.1412(1)(e). We granted
discretionary review, reverse the opinion of the Court of Appeals, and reinstate
)
the trial court's judgment.
I. BACKGROUND
At all times relevant to this case, KRS 218A.1412 stated the following
relevant provisions:·
heroin whatsoever ~r possessing ten or more dosage units of heroin both result ill a
Class C felony conviction instead of the Class C and D discrepancy Hughes alleges
under the version of KRS 21.8A.1412 under which she was prosecuted.
2
(1) A person is guilty of trafficking in a controlled substance in the
first degree when he" or she knowingly and unlawfully traffics in:
(b) Two (2) grams or more ofheroin ... ;
(c) Ten (10) or more dosage units of a controlled substance that
is classified _in Schedules I or II and is a narcotic drug, or a
J
controlled substance analogue; -
(e) Any quantity of a controlled substance specifie in paragraph
(a), (b), or (c) of this subsection in an amount iess than the
amounts specified in those paragraphs.
(
(3) (a) Any person who violates the provisions otsubsection (l)(a),
(b), (c), or (d) qf this section shall be guilty of a Class C felony for
. the first offense and a Class B felony for the second or subseqpent
offense. -. ·
(b) Any person.who Violates the provision of subsection (l)(e) of
this· section: 1. Shall be guilty of a Class D felony.for the first
offense. · '
KRS 218A.010(12) defines dosage unit as a "single pill, capsule, ampule, liquid,
or other form of administration available as a single unit[.]"2 Heroin is a
Schedule I Controlled Substance. 3 KRS 532.060(2)(c) imposes a five to ten-year
2 (emphasis added).
a KRS 2 lSA.050, Kentucky's enumeration of Schedule I Controlled Substances, was
repealed by the legislature· during the pendency of this case. The Court of Appeals
relied on this statute in finding heroin to be a Schedule I Controlled substance. KRS
218A.020(3)(a), currently in effect, states, "If any substance is designated or
rescheduled as a controlled substance under the federal Controlled Substances Act,
the dnig shall-be considered to be controlled at the state level in the same numerical -
schedule corresponding tO the federal schedule." 21 U.S.C. § 812 Schedule I(b)(lO), a
section of the federal Controlled Substances Act, lists heroin as a Schedule I -
Controlled Substance. So, regardless of which statute applies, Kentucky identifies
heroin as a Schedule I Controlled Substance.
3
prison sentence for Class C felonies, while KRS 532.060(d) imposes a one to
five-year prison sentence for Class D felonies.
In sum, the statutes listed above frame the sole issue in this case:
Whether an individual selling ten capsules-but less than two grams-of heroin
should be charged under KRS 218A.1412(1)(c),\a Class C felony and
punishable by five to ten years' imprisonment, or under KRS 218A.1412(1)(e), a
Class D felony and punishable by one to five years' imprisonment.
II. ANALYSIS
"Insofar, as this case requires us to construe statutory provisions, we do
so de novo.'"4 We agree with the Commonwealth that no ambiguity in the
J
i .
relevant version of KRS 218A.1412
i
exists. The version of KRS
"
218A.1412 under
review today simply provided prosecutors with two different avem.i.es under
which to charge potential offenders. The statutory sections do not conflict;
rather, they provide options for the Commonwealth to combat the use and
·spread of heroin in Keptucky.
-
In finding this to be the case, we hi.ghlight the rules of statutory
construction used to co~e to this conclusion. "The primary purpose of ju~icial
construction is to carry:out the intent of the legislature. In construing a
. .
statute, the court must consider 'the intended purpose of the statute and the
4Commonwealth v. Morseman, 379 S.W.3d 144, 148 (Ky. 2012) (citing Bob Hook
Chevroletlsuzu, Inc. v. Commonwealth Transp. Cabinet, 983 S.W.2d 488, 490-91 (Ky.
1998)).
4
(
mischief intended to be remedied. "'5 "The first principle of statutory
construction is to use the plain meaning of the words used in the statute."6 "A
court may not interpret a statute at variance with its stated language."7-"We
presume that the General Assembly intended for the statute to be construed as
"
a whole, for all of its parts to have meaning, and for it to harmonize with ·
related statutes." 8 "[S]tatutes must be given a literal interpretation unless they
are ambiguous and if the words are not ambiguous, no statutory construction
is required."9
In addition to these statutory canons, we recognize that "so long as the
prosecutor has probable cause to believe that the accused committed an
offense defined by statute, the decision whether or not to prosecute, and what
charge to file or bring before a grand jury, generally rests entirely in his
discretion." 10
The reading of the relevant version of KRS 21 BA.1412 is simple: If a
situation arises where an individual is trafficking in less than two grams of
heroin, but more than ten dosage units, the Commonwealth can use KRS
-218A.1412(l){c) or (e) to charge the individual. The language of the statute is
s Monumental Life Ins. Co. v. Department of Revenue, 294 S.W.3d LO, 19 (Ky. App.
2008).
6 Monumental Life Insurance, 294 S.W.3d at 19 (citing Revenue Cabin~t v. O'Daniel,
153 S.W.3d 815 (Ky. 2005)). '
1 Smith.Kline Beecham Corp. v. Revenue Cabinet, 40 S.W.3d 883, 885 (Ky. App. 2001).
s Shawnee Telecom Res., Inc. v:· Brown, 354 S.W.3d 542, 551 (Ky. 2011).
9 Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002).
io Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
\ 5
clear, and the language of the statute effectuates the intent of the legislature-
the spread of heroin is an epidemic, a "mischief," plaguing this state, and the
relevant version of KRS 218A. l 412 gave the Commonwealth options for battling
\
this plague. In a situation like Hughes's, where a defendant trafficked in ten
dosage units, but less than two grams, of heroin, the plain and literal meaning
of KRS 218A. l 412 afforded the prosecutor the discretion to seek an indictment
,under (l)(c) or (l)(e), thereby imposing a Cfass C or D felony punishment. This
is not conflict or ambiguity-is permissible prosecutorial discretion.
Because the statutes do not conflict and are not ambiguous, the Court of
Appeals incorrectly concluded that because "the specific provision takes
precedence over the general," 11 and because KRS 218A.1412(1)(b) specifically
enumerates, "heroin" when making punishable trafficking in two or more grams
of heroin, this meant that KRS 218A.1412(1)(e) always applied in a situation
l~ke the factual circumstances of this case. The statutory canons used by the
Court of Appeals only apply in circumstances of statutory conflict or ambiguity.
As we have explained, the now-superseded version of KRS 218A.1412 simply
p~ovided alternative avenues, options, for the Commonwealth to battle the
spread of heroin, not conflicting statutes showing contrary legislative intent.
In addition, the Court of Appeals incorrectly resorted to a common
understanding of dosage unit, instead of applying the statute's enumerated
definition 'Of dosage unit. "When there is no specific statutory definition, words
11 Commonwealth v. Phon, 17 S.W.3d 106, 107 (Ky. 2000).
6
1
of a statute shall be construed according to their common and approved
usage." 12 "An unambiguous statute is to be applied without resort to any
outside aids." 13 Taken together, these rules of law provide that a statute's
enumeration of a term, if present, takes precedence over the common usage of
~a term. The Court of Appeais incorrectly resorted to a common-usage definition
of heroin_ when concluding that the legislature did not intend for heroin to be
(
measured in prescribed amou!lts, but rather by bulk weight. KRS 218A.010(12)
clearly defines dosage unit as a "single pill, capsule, ampule, liquid,
. . or other
form of administration available as a single unit[.]" 14 In other words, ten
capsules of heroin
. equates to ten dosage units of heroin under the language
. of
the statute. KRS 218A.010(12) is unambiguous in this regard, so we do not
resort to the common usage of dosage unit.
We find applicable to the present case the Court ofAppeals' statement in
Commonwealth v. McKinney. is There, the Court of Appeals stated that if two
penalties apply to the same violation, a statutory conflict exists, and rules of
stattitory construction must be applied to resolve the conflict. 16 But two
(
different violations in KRS 218A.1412 exist under the facts of the present
case-trafficking heroin by ten or more dosage units and trafficking heroin by
12Kentucky Unemployment Ins. Co. v. Jones, 809 S.W.2d 715, 716 (Ky. App. 1991)
(citing Claude N. Fannin Wholesale Co. v. Thacker, 661S.W.2d477 (Ky. App. 1983)).
I
13 Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002).
14 (emphasis added).
15 594 S.W.2d 884 (Ky. App. 1979).
16 McKinney, 594 S.W.2d at 887.
7
less tha.n two grams~ Trafficking heroin by dosage unit requires the heroin to
\
be packaged inside a "single pill, capsule, ampule, liquid, or other form of
administration available as a single unit" 17, in addition to a requirement that
ten of these ' dosage units exist, .which
.
trafficking less than two grams of heroin
does not. Similarly, trafficking less than two grams of heroin requires some
quantity of heroin to exist, while this fact alone would not satisfy a conviction
of trafficking ten or more dosage units. Because the crimes a'.re distinct, no
conflict exists.
Lastly, while the rule oflenity requires any ambiguity_ in a statute to be
resolved in favor of a criminal defendant, is because we find no ambiguity in the
'
relevant version of KRS 218A.1412, the rule oflenity does not apply in this
case.
III. CONCLUSION
We reverse the Court of Appeals opinion and hold that the version of KRS
218A.1412 as it existed at all times relevaht to this case afforded the
Commonwealth the ability to seek indictment of individuals under either
subsection (l)(c) or (l)(e) when either statute applied to the circumstances of
the case. Therefore, no error occurred when the trial court denied Hughes's
motion to amend the indictment. The judgment of the trial court is :reinstated.
All sitting., All concur.
17 KRS 218A.020(12) (emphasis added).
18 White v. Comfnonwealth; 178 S.W.3d 470, 483-84 (Ky. 2005).
8
COUNSEL FOR APPELLEE:
Shannon Renee Dupree
Assistant Public Advocate
COUNSEL FOR APPELLANT:
Andy Beshear
Attorney General of Kentucky
Emily Lucas
Attorney General's Office
)
9