JAMES PATRICK RODEFER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
May 14, 2004; 10:00 a.m.
TO BE PUBLISHED
MODIFIED:
July 16, 2004; 2:00 p.m.
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001059-MR
JAMES PATRICK RODEFER
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
ACTION NO. 02-CR-00902
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART AND REVERSING AND REMANDING IN PART
** ** ** ** **
BEFORE:
JOHNSON, TAYLOR AND VANMETER, JUDGES.
JOHNSON, JUDGE:
James Patrick Rodefer has appealed from a final
judgment and sentence of the Fayette Circuit Court entered on
April 24, 2003, which, following his conviction for trafficking
in a controlled substance in the first degree,1 criminal attempt
to commit burglary in the third degree,2 possession of burglar’s
1
2
Kentucky Revised Statutes (KRS) 218A.1412.
KRS 511.040; KRS 506.010. Criminal attempt to commit burglary in the third
degree is a Class A misdemeanor.
tools,3 possession of drug paraphernalia (first offense),4 and as
being a persistent felony offender in the first degree (PFO I),5
sentenced Rodefer to ten years’ imprisonment in accordance with
the jury’s recommendations.
The trial court ordered Rodefer’s
ten-year sentence to run consecutively with any other previous
felony sentences that Rodefer had left to serve.
Having
concluded that the trial court erred by submitting an improper
jury instruction with respect to the charge of trafficking in a
controlled substance in the first degree, we affirm in part and
reverse and remand in part for further proceedings.
On July 2, 2002, officers from the Lexington Police
Department received a tip that a CVS Pharmacy in Lexington was
going to be burglarized.
According to the tip, the perpetrators
were going to gain entry through a crack in the wall of the
building, and take OxyContin from the pharmacy once inside.
Later that night, Sergeant Scott Blakely and Detective Phillip
Harrison, along with another officer, set up surveillance at the
pharmacy.
At around 5:00 a.m. the next morning, Rodefer and two
accomplices arrived at the pharmacy.
The officers observed
Rodefer using a sledge hammer in an attempt to break the window
3
4
KRS 511.050.
KRS 218A.500.
misdemeanor.
5
Possession of burglar’s tools is a Class A misdemeanor.
Possession of drug paraphernalia, first offense, is a Class A
KRS 532.080(3).
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of an adjoining business.
Thereafter, the officers converged on
the suspects, and all three men attempted to flee the scene.
Det. Harrison apprehended Rodefer, but Rodefer’s two accomplices
managed to escape.
Upon searching Rodefer’s person incident to
his arrest, the officers discovered a crack pipe, a tin can
containing 1.02 grams of crack cocaine, a baggie containing
16.46 grams of powder cocaine, and $1,146.00 in cash.
On August 26, 2002, a Fayette County grand jury
indicted Rodefer on one count of trafficking in a controlled
substance in the first degree, one count of criminal attempt to
commit burglary in the third degree, one count of possession of
burglar’s tools, one count of possession of drug paraphernalia
(first offense), and for being a PFO I.
Rodefer entered pleas
of not guilty to all of the charges.
A jury trial was scheduled for March 2003.
However,
on January 10, 2003, Rodefer appeared in open court and
indicated that he wished to plead guilty to all of the charges.
At that time, Rodefer was on probation for felony convictions he
had received in Indiana.6
Thus, the trial court informed Rodefer
that if he pleaded guilty to his pending charges, there was a
possibility that the trial court would have no choice but to
6
According to the record, Rodefer was convicted on numerous counts of
burglary in Indiana, and faced the possibility of having to serve ten years
or more on those suspended Indiana sentences due to his probation violation.
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order his Kentucky sentences to run consecutively with any
remaining sentences in Indiana.
A week later, on January 17, 2003, Rodefer’s defense
counsel stated that, in his opinion, if Rodefer pleaded guilty
to his pending charges, KRS 533.060(2) would require the trial
court to order his Kentucky sentences to run consecutively with
his Indiana sentences.
Hence, Rodefer indicated that he did not
want to plead guilty, and that he wished to proceed to trial.
A jury trial was held on March 20, 2003, during which
Rodefer was found guilty on all charges.
The jury recommended a
five-year sentence on the conviction for trafficking in a
controlled substance in the first degree, enhanced to ten years
for the PFO I conviction, 12 months on the conviction for
criminal attempt to commit burglary in the third degree, 12
months on the conviction for possession of burglar’s tools, and
12 months on the conviction for possession of drug
paraphernalia.
On April 24, 2003, after a pre-sentence investigation
had been completed, the trial court followed the jury’s
recommendation and sentenced Rodefer to five years’ imprisonment
for his conviction for trafficking in a controlled substance in
the first degree, which was then enhanced to ten years’
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imprisonment pursuant to his PFO I conviction.7
The trial court
ordered Rodefer to serve this ten-year sentence “consecutively
with any other previous felony sentence [Rodefer] must serve.”
This appeal followed.
Rodefer first argues that the trial court erred by
giving an improper jury instruction with respect to the charge
of trafficking in a controlled substance in the first degree.
As Rodefer has conceded in his brief, this claim of error has
not been preserved for appellate court review.
However, having
concluded that the instruction at issue permitted the jury to
convict Rodefer based on a theory not supported by law, we
review Rodefer’s argument pursuant to the substantial error
standard of RCr8 10.26.9
Pursuant to KRS 218A.1412(1), “[a] person is guilty of
trafficking in a controlled substance in the first degree when
he knowingly and unlawfully traffics in:
substance” [emphasis added].
a controlled
Under KRS 218A.010(28), the term
7
All three 12-month sentences were ordered to run concurrently with his tenyear sentence, which resulted in a total Kentucky sentence of ten years’
imprisonment.
8
Kentucky Rules of Criminal Procedure.
9
RCr 10.26 reads in full as follows:
A palpable error which affects the substantial
rights of a party may be considered by the court on
motion for a new trial or by an appellate court on
appeal, even though insufficiently raised or
preserved for review, and appropriate relief may be
granted upon a determination that manifest injustice
has resulted from the error.
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“[t]raffic” means “to manufacture, distribute, dispense, sell,
transfer, or possess with intent to manufacture, distribute,
dispense, or sell a controlled substance” [emphasis added].
Further, pursuant to KRS 218A.010(29), the term “[t]ransfer”
means “to dispose of a controlled substance to another person
without consideration and not in furtherance of commercial
distribution.”
Hence, a person may be found guilty of trafficking in
a controlled substance in the first degree if the jury finds
that he knowingly manufactured, distributed, dispensed, sold, or
transferred a controlled substance, or if the jury finds that he
knowingly possessed a controlled substance with the intent to
manufacture, distribute, dispense, or sell the controlled
substance.
However, a person may not be found guilty of
trafficking in a controlled substance in the first degree based
solely on a jury’s finding that he knowingly possessed a
controlled substance with the intent to transfer the controlled
substance.10
Turning to the jury instructions in the case sub
judice, we find that the submitted instructions permitted the
10
Our review of Cooper, Kentucky Instructions to Juries, supports this
interpretation of KRS 218A.1412(1). Section 9.11A contains an instruction
for cases in which a defendant is charged with actually selling,
transferring, distributing, dispensing, or manufacturing the controlled
substance, while Section 9.11B contains an instruction for cases in which a
defendant is charged with possessing a controlled substance with the intent
to sell, distribute, dispense, or manufacture the substance.
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jury to find Rodefer guilty based solely upon a finding that he
possessed cocaine with the intent to transfer.
The instructions
submitted to the jury read in pertinent part as follows:
“Traffic” – Means to distribute,
dispense, sell, transfer, or possess with
the intent to distribute, dispense, sell, or
transfer a controlled substance.
You will find the Defendant guilty of
First-Degree Trafficking in a Controlled
Substance under this Instruction if, and
only if, you believe from the evidence
beyond a reasonable doubt all of the
following
A. That in this county on or about
July 3, 2002 and before the
finding of the Indictment herein,
he had in his possession a
quantity of cocaine;
AND
B. That he knew the substance so
possessed by him was cocaine;
AND
C. That he had the cocaine in his
possession wit[h] the intent to
sell, transfer, dispense, or
distribute to another [emphases
added].
Thus, the above instruction permitted the jury to find
Rodefer guilty of trafficking in a controlled substance in the
first degree if, inter alia, it found that he knowingly
possessed cocaine with the intent to transfer the cocaine to
another person.
As we mentioned above, KRS 218A.1412(1) does
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not define merely possessing a controlled substance with the
intent to transfer as trafficking.11
Therefore, the instruction
at issue permitted the jury to convict Rodefer based on a theory
unsupported in the law.
Since Rodefer admitted during his testimony that he
“possessed” the cocaine on the night in question and that he
shared, i.e., transferred the cocaine to his friends, we
conclude that there is a substantial possibility that the jury
found Rodefer guilty based upon this erroneous “possession with
the intent to transfer” theory.
Therefore, the inclusion of the
jury instruction at issue constituted palpable error and
warrants a reversal of Rodefer’s conviction for trafficking in a
controlled substance in the first degree.12
Accordingly, we
reverse both Rodefer’s conviction for trafficking in a
controlled substance in the first degree and his PFO I
conviction, but affirm his convictions for criminal attempt to
11
See Commonwealth v. Whitmore, Ky., 92 S.W.3d 76, 82 n.3 (2002)(Keller, J.,
concurring)(noting that “[t]he [G]eneral [A]ssembly has not defined
‘possession with the intent to transfer’ as trafficking”).
12
See Partin v. Commonwealth, Ky., 918 S.W.2d 219, 224 (1996)(holding that
“[a] palpable error is one which affects the substantial rights of a party
and relief may be granted for palpable errors only upon a determination that
a manifest injustice has resulted from the error. This means, upon
consideration of the whole case, the reviewing court must conclude that a
substantial possibility exists that the result would have been different in
order to grant relief”).
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commit burglary in the third degree, possession of burglar’s
tools, and possession of drug paraphernalia.13
Rodefer next argues that the trial court had the
discretion to determine whether to run the sentences for his
Kentucky convictions concurrently or consecutively with his
previous Indiana sentences.
Although this issue was concededly
not preserved for appellate review,14 we nonetheless consider and
reject Rodefer’s argument on appeal.
Pursuant to KRS 533.060(2), a defendant who is
convicted of a felony while on probation or parole for a
previous felony is not entitled to have his sentence for the
subsequent felony conviction to run concurrently with his
previous sentence:
When a person has been convicted of a
felony and is committed to a correctional
detention facility and released on parole or
has been released by the court on probation,
shock probation, or conditional discharge,
and is convicted or enters a plea of guilty
to a felony committed while on parole,
probation, shock probation, or conditional
discharge, the person shall not be eligible
13
Since Rodefer’s PFO I conviction was based on his conviction for
trafficking in a controlled substance in the first degree, his PFO I
conviction must also be reversed. Rodefer has not appealed from his
conviction for criminal attempt to commit burglary in the third degree, his
conviction for possession of burglar’s tools, or his conviction for
possession of drug paraphernalia, first offense, all of which are Class A
misdemeanors.
14
As we mentioned previously, after initially indicating that he wished to
plead guilty to all of his charges, Rodefer elected to proceed to trial after
his defense counsel formed the opinion that KRS 533.060(2) would require the
trial court to run his Kentucky sentences consecutively with his previous
Indiana sentences.
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for probation, shock probation, or
conditional discharge and the period of
confinement for that felony shall not run
concurrently with any other sentence
[emphasis added].
In his brief to this Court, Rodefer argues that the
above provision is in conflict with KRS 532.115, and that the
latter should control.
We disagree.
KRS 532.115 reads in
pertinent part as follows:
The court in sentencing a person
convicted of a felony, shall be authorized
to run the sentence concurrent with any
federal sentence received by that defendant
for a federal crime and any sentence
received by that defendant in another state
for a felony offense. The time spent in
federal custody and the time spent in
custody in another state under the
concurrent sentencing shall count as time
spent in state custody; but the federal
custody and custody in another state shall
not include time spent on probation or
parole or constraint incidental to release
on bail.
Hence, KRS 532.115 generally authorizes a trial court
to order that a Kentucky sentence run concurrently with a
federal sentence or sentence from another state.
However, KRS
533.060(2) specifically deals with a situation in which a
defendant has been convicted of a felony while on probation or
parole for a previous felony.
Accordingly, since Rodefer was on
probation for previous felony convictions from Indiana when he
was convicted of the charges brought against him in the instant
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case, KRS 533.060(2) governs under the facts of the case at
bar.15
Based on the foregoing, the judgment of the Fayette
Circuit Court is affirmed in part and reversed in part, and this
matter is remanded for further proceedings consistent with this
Opinion.
TAYLOR, JUDGE, CONCURS.
VANMETER, JUDGE, CONCURS IN PART, DISSENTS IN PART AND
FILES SEPARATE OPINION.
VANMETER, JUDGE, CONCURRING IN PART AND DISSENTING IN PART:
Respectfully, I dissent from so much of the majority opinion as
holds that the erroneous jury instruction was a palpable error
warranting reversal under RCr 10.26.
Under the standard for
palpable error established by Commonwealth v. Pace, Ky., 82
S.W.3d 894 (2002), and upon consideration of the whole case, I
do not believe there is a substantial possibility that the
result would have been any different if the jury had been
instructed correctly.
The evidence of the amount of money and
the quantity of drugs in Rodefer’s possession at the time of his
arrest was sufficient to convict him of trafficking with the
intent to sell.
15
See Commonwealth v. Phon, Ky., 17 S.W.3d 106, 107 (2000)(stating that
“[w]hen there appears to be a conflict between two statutes, as here, a
general rule of statutory construction mandates that the specific provision
take precedence over the general” [footnote omitted]).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Alicia A. Sneed
Lexington, Kentucky
Albert B. Chandler III
Attorney General
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
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