FREELAND RILEY V. COMMONWEALTH OF KENTUCKY
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RENDERED : MAY 22, 2003
TO BE PU.ISHED
FREELAND RILEY
V.
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z . CLYMER, JUDGE
99-CR-294
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Appellant Freeland Thomas Riley was convicted by a McCracken Circuit Court
jury of one count of possession of marijuana and one count of possession of drug
paraphernalia, both Class A misdemeanors . KRS 218A.1422(2) ; KRS 218A.500(5) .
Each offense was enhanced to a Class D felony by the jury's additional finding that
Appellant was in possession of a firearm at the time the offenses were committed . KRS
218A .992 (1)(b) . The marijuana charge was further enhanced by the jury's finding that
he was a persistent felony offender in the first degree ("PFO first-degree") .' KRS
' The drug paraphernalia conviction was not subject to PFO enhancement . KRS
532.080(8); Bolen v . Commonwealth . Ky., 31 S.W .3d 907, 909 (2000) .
532.080(3). Appellant was sentenced to a total of twenty years in prison and appeals to
this Court as a matter
of
right. Ky. Const. § 110(b) .
Appellant had been previously convicted on December 17, 1987, in the Ballard
Circuit Court of burglary in the third degree and felony theft for which he was sentenced
to three years in prison . He was subsequently convicted on July 25, 1994, in the
McCracken Circuit Court of one count of trafficking in a controlled substance in the first
degree, three counts of trafficking in marijuana (less than eight ounces), and two counts
of trafficking in marijuana (eight ounces or more, less than five pounds) for which he
was sentenced to thirteen years in prison, subject to 380 days credit for time already
served . He was released on parole on July 24, 1997, and moved into a mobile home
behind his father's residence . As conditions of his parole, Appellant agreed, inter alia ,
that (1) he would not "purchase, own or have in [his] possession or control" a firearm,
ammunition, or other dangerous instrument ; (2) he would not use or possess any
alcoholic beverages, narcotics, or controlled substances; (3) he would allow his parole
officer to visit his residence at any time; and (4) the officer could conduct a search
person or residence
if
of
his
the officer had reason to believe that he may have "illegal drugs,
alcohol, volatile substance, or other contraband" on his person or property .
Around nine p .m. on November 16, 1999, Steve Campbell, a McCracken County
probation and parole officer, accompanied by a deputy sheriff and another assistant,
made a visit to Appellant's residence . The visit was in accordance with "Operation
Night Vision," a cooperative agreement between the McCracken County probation and
parole office and local police authorities by which parole officers would make home
visits to parolees' residences at night under police protection . If any contraband was
confiscated during the visit, the police authorities would process and retain custody of it
for possible use in any subsequent legal proceedings . Officer Campbell initiated the
visit by knocking on Appellant's door . When Appellant opened the door, Campbell
advised that he was performing a "routine visit" as part of "Operation Night Vision" and
that the additional officers were there for his (Campbell's) protection . Appellant allowed
the officers to enter, then sat down on a chair near the front door. Immediately upon
entry, Campbell observed a 30 .06 rifle and a Remington twelve gauge shotgun laying
on a bassinet within six to eight feet of where Appellant was sitting . Appellant claimed
that the guns belonged to his father, who was living with him at the time, and
volunteered that there were additional weapons located in his father's bedroom .
Appellant then requested that the officers allow his sister-in-law to come to the
residence and remove the weapons.
Suspecting that Appellant might be in possession and control of additional
weapons, Campbell opened the drawer of an end table next to the chair on which
Appellant was sitting and discovered a decorative tin can . Upon shaking the can and
contemporaneously observing Appellant's change of demeanor as he did so, Campbell
suspected that the can contained contraband . Upon opening the can, Campbell
discovered seven bags containing approximately 46.5 grams of marijuana, rolling
papers, a razor blade, and a set of "finger" measuring scales . Appellant then told
Campbell that the "rest of the marijuana" was in a potato bin in his kitchen . Campbell
proceeded to the bin and discovered two ziplock bags containing approximately 114 .5
grams of marijuana . After Campbell had placed Appellant under arrest for parole
violation, KRS 439.430(1), the officers conducted an extended search of the mobile
home and recovered twelve additional firearms .
On December 30, 1999, a McCracken County grand jury issued a five-count
indictment charging Appellant with (1) trafficking in marijuana less than eight ounces,
second offense, while in possession of a firearm ; (2) possession of a handgun by a
convicted felon ; (3) possession of a firearm by a convicted felon; (4) possession of drug
paraphernalia while in possession of a firearm ; and (5) PFO first-degree . (Counts 2
and 3 were severed for purposes of trial and count 3 was ultimately dismissed).
After an evidentiary hearing, the trial court overruled Appellant's motion to
suppress the evidence seized from his residence . A petit jury ultimately acquitted
Appellant of trafficking in marijuana under count 1 of the indictment but convicted him of
the lesser-included offense of possession of marijuana, and also convicted him under
count 4 of possession of drug paraphernalia . The jury further found that Appellant was
in possession of a firearm at the time both offenses were committed and that he was a
persistent felony offender in the first-degree . He was sentenced to twenty years
imprisonment .
On appeal, Appellant asserts (1) the evidence obtained during the search of his
residence should have been suppressed as the fruits of an illegal search; (2) there was
insufficient evidence to support the firearm enhancement of the underlying offenses
(thus, his convictions were for misdemeanors, which could not trigger PFO
enhancement) ; (3) the jury should not have been instructed on PFO first-degree
because the indictment charged him only with being a PFO in the second degree, and
one of the prior convictions upon which the PFO enhancement was premised was
invalid because he was never indicted for that offense ; and (4) a twenty-year sentence
for a misdemeanor offense (possession of marijuana) constitutes cruel and unusual
punishment . For reasons hereinafter explained, we affirm .
I. SEARCH AND SEIZURE.
Appellant claims that the search of his residence violated the Fourth Amendment
to the United States Constitution and Section 10 of the Kentucky Constitution . He
asserts that although his possession of the two firearms violated the express conditions
of his parole agreement, the officers could not search the remainder of his residence
without a warrant because they did not have a "reasonable suspicion" that a search of
the residence would uncover "illegal drugs, alcohol, volatile substance, or other
contraband ." Alternatively, he asserts that the search was illegal because Officer
Campbell's visit on the night in question was not "routine" but, rather, Campbell was
acting as a "stalking horse" for the sheriffs department, i .e . , the probation and parole
officers were merely "puppets" in a coordinated police investigation meant to
circumvent the strictures of the Fourth Amendment . Both arguments are meritless .
A.
Parole Search .
We note initially that Appellant only challenges the seizure of those items that
were not in "plain view." Coolidge v. New Hampshire , 403 U .S. 443, 465, 91 S .Ct.
2022, 2037, 29 L .Ed.2d 564 (1971) ; Hazel v. Commonwealth , Ky., 833 S .W.2d 831,
833 (1992) . He concedes in his brief that he "opened the door and let in" the officers, a
concession consistent with the testimony at trial and at the suppression hearing ; thus,
the officers were lawfully inside the residence when they observed the two shotguns
laying on the bassinet in Appellant's living room . The only issue is whether the search,
conducted after the officers discovered the guns in plain view and after Appellant
volunteered that there were other firearms in the mobile home, was valid .
Although a parolee's home, like any other, "is protected by the Fourth
Amendment's requirement that searches be 'reasonable'," Griffin v . Wisconsin , 483
U .S . 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed .2d 709 (1987), Appellant's status as a
parolee diminished his expectation of privacy . Id . at 874, 107 S .Ct. at 3169; see Wilson
v. Commonwealth , Ky., 998 S .W.2d 473, 474 (1999) ("The parole system allows for the
early release of convicted criminals from prison, but does not grant complete
freedom .") . Thus, because of the "special needs" presented by law enforcement, a
state may issue regulations allowing a probation or parole officer to search a
probationer's or parolee's property without a warrant . Griffin , supra , at 873-74, 107
S .Ct. at 3168-69 ; Wilson , supra, at 474 n .1 . However, such regulations and the
searches conducted pursuant thereto are still subject to the Fourth Amendment's
general requirement of reasonableness . Griffin , supra , at 873-74, 107 S .Ct. at 3168-69.
In United States v. Knights , 534 U .S. 112, 122 S.Ct. 587, 151 L.Ed .2d 497
(2001), the Court further elaborated upon what is "reasonable" in the context of a
search of a probationer's or parolee's residence . The Court held in Knights that a
warrantless search of a probationer's residence is reasonable under the Fourth
Amendment when the search is supported by a reasonable suspicion that the
probationer is engaged in criminal activity and such a search is authorized by a
condition of probation . Id . at 121, 122 S .Ct. at 593; see also Coleman v.
Commonwealth , Ky ., 100 S.W.3d 745, 752 (2002) ; Wilson , supra, at 475 (warrantless
search of parolee's automobile held valid based upon reasonable belief of parole officer
that automobile contained contraband) . In support of this conclusion, the Court
explained, "[w]hen an officer has reasonable suspicion that a probationer subject to a
search condition is engaged in criminal activity, there is enough likelihood that criminal
conduct is occurring that an intrusion on the probationer's significantly diminished
privacy interests is reasonable ." Knights , supra, at 121, 122 S .Ct . at 593 .
One of the conditions of Appellant's parole was that he refrain from "possession
or control" of a firearm. In addition, Appellant knew that he "may be subject to search
and seizure if [his parole officer] has reason to believe that [he] may have illegal drugs,
alcohol, volatile substance, or other contraband on [his] person or property ." (Emphasis
added .) "Contraband" is defined in the penal code as "any article or thing which a
person confined in a detention facility is prohibited from obtaining or possessing by
statute, departmental regulation, or posted institutional rule or order."' KRS 520 .010(1).
Firearms are considered to be "dangerous contraband ." KRS 520.010(3) ; KRS
500 .080(4)(b) . As a paroled convicted felon, Appellant was prohibited by statute from
possessing a firearm . KRS 527 .040. These conditions of parole are imposed pursuant
to regulations adopted by the Kentucky Parole Board. 501 KAR 1 :030, § 6 (2002) . In
addition, Department of Corrections Policy No. 27-16-01 outlines the standard by which
a parole officer may conduct a warrantless search of a parolee or his residence :
If Reasonable Suspicion Exists to believe that an offender is violating a
condition of supervision or the officer has possession of evidence of a
violation of the terms and conditions of supervision, an officer may search
without a warrant.
Kentucky Corrections Policy No. 27-16-01 (Search ; Seizure ; Chain of Custody; Disposal
of Evidence) IV(1)(A)(1), at 3 . This policy was incorporated by reference into
regulations adopted by both the Justice Cabinet and the Department of Corrections .
501 KAR 6 :020E § 1(c) (2002) .3 By signing the release agreement, Appellant
knowingly agreed to conditions that, as a parolee, reduced his expectation of privacy in
2AIthough Appellant was not technically "confined in a detention facility," one of
the conditions of his release on parole was that he continue to refrain from possessing
"contraband ." Presumably that would be the same contraband that he had been
precluded from possessing while confined .
3For statutory authority, see KRS 196.035 ; KRS 197.020(1)(a) ; KRS 439 .470(1) .
his residence to the extent that his parole officer could conduct a search upon
"reasonable suspicion" that he was in possession of a firearm .
Officer Campbell's personal observation of two firearms in plain view and
Appellant's advice that there were more firearms in the rear bedroom supported
Campbell's reasonable suspicion that there might be other firearms concealed within
the residence . That suspicion warranted opening the drawer of the end table next to
the chair on which Appellant was then sitting . Cf. Clay v . Commonwealth , Ky., 818
S.W.2d 264, 265 (1991) (parole officer's observation of bullets laying in plain view on a
dresser next to the bed on which defendant was lying sufficed to support subsequent
search) . Campbell was not required to establish ownership of the firearms or to accept
Appellant's claim that they were not owned by him . Knowledge that there were firearms
present in Appellant's residence was sufficient to trigger the requisite reasonable
suspicion to justify the subsequent search.
B.
"Stalking Horse".
Appellant's "stalking horse" defense is premised upon his assertion that
"Operation Night Vision" was a subterfuge to enable other police agencies to conduct
unconstitutional searches of parolees' residences under the guise of a parole officer's
"routine visit." Prior to the decision in Knights , supra , a majority of federal courts had,
indeed, held that a search was unlawful when the probation or parole officer was acting
as a "stalking horse" for a police investigation, i.e. , when the officer's visit was but a
ruse for an entry and search by the accompanying police officers. See United States v.
Martin , 25 F .3d 293, 296 (6th Cir. 1994) ("[I]t is impermissible for a probation search to
serve as subterfuge for a criminal investigation .") ; United States v. Grimes, 225 F.3d
254, 259 (2nd Cir. 2000); United States v. McFarland , 116 F.3d 316, 318 (8th Cir.
1997) ; United States v. Oolev, 116 F .3d 370, 372 (9th Cir. 1997); United States v .
McCarty , 82 F .3d 943, 947 (10th Cir . 1996) ; United States v . Coleman , 22 F .3d 126,
129 (7th Cir. 1994) ; Shea v. Smith , 966 F .2d 127, 132 (3rd Cir. 1992) . However, in the
process of reversing the suppression of evidence seized in a probation search that was
for "investigatory," as opposed to "probationary," purposes, Knights eliminated the
"stalking horse" defense.
Because our holding rests on ordinary Fourth Amendment analysis that
considers all the circumstances of a search, there is no basis for
examining official purpose. With the limited exception of some special
needs and administrative search cases, we have been unwilling to
entertain Fourth Amendment challenges based on the actual motivations
of individual officers .
Knights , supra, at 122, 122 S .Ct. at 593 (citations and quotations omitted) . The Ninth
Circuit Court of Appeals has subsequently held in United States v. Stokes, 292 F.3d
964 (9th Cir. 2002), that, in light of Kniahts , "our circuit's line of cases holding searches
of probationers invalid on the ground that they were subterfuges for criminal
investigations is, in that respect, no longer good law." Id . at 967 (overruling Ooley,
supra) .
We agree that Knights eliminated the so-called "stalking horse" defense . Thus,
we need not engage in a subjective examination of the official purpose behind this
particular "Operation Night Vision" visit . We simply hold that the search of the
remainder of Appellant's mobile home did not violate his constitutional right to be
secure against unreasonable searches and seizures .
II . FIREARM ENHANCEMENT .
Appellant admits that he was in possession of the marijuana and drug
paraphernalia and does not challenge the sufficiency of the evidence supporting his
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convictions of those offenses . He does, however, contend that the trial court
erroneously denied his motion for a directed verdict as to the firearm enhancement of
those convictions because there was insufficient evidence of a "nexus" between the
firearms discovered in his residence and his possession of the marijuana and drug
paraphernalia . See Commonwealth v. Montaque , Ky., 23 S .W.3d 629, 632 (2000) .
The firearm enhancement statute, KRS 218A .992(1), applies whether the
defendant's possession of the firearm was actual or constructive . Montaque , at 632;
Houston v . Commonwealth , Ky., 975 S.W.2d 925, 927 (1998). "Constructive
possession exists when a person does not have actual possession but instead
knowingly has the power and intention at a given time to exercise dominion and control
of an object, either directly or through others ." Johnson v. Commonwealth , Ky., 90
S .W.3d 39, 42 (2002) (quotation omitted) . Here, each of the officers who searched
Appellant's residence on the night of his arrest testified that they saw two firearms in
"plain view" within six to eight feet of where Appellant was seated . Appellant did not
controvert this testimony but only asserted that the weapons belonged to his father and
were not within his immediate reach .
Appellant could have easily exercised dominion and control over the two firearms
which were laying in an unobstructed location only six to eight feet from where he was
sitting and where the marijuana and drug paraphernalia were discovered . Therefore,
this evidence was sufficient to support a reasonable juror's conclusion that Appellant
had constructive possession of the firearms . Id . at 43 (constructive possession
established by proof that the firearm was seized at Appellant's residence at the time of
his arrest) ; Houston , supra, at 928-29 (defendant was in constructive possession of
firearms located in the apartment where he was arrested because firearms were in
"plain view and were easily accessible") .
Under Montague , supra , a nexus is shown if the firearms were within the
defendant's constructive possession and "immediate control" at the time of his arrest.'
23 S .W.3d at 632-33 . We easily conclude that the two firearms on the bassinet were
within Appellant's "immediate control ." Under Chimel v. California , 395 U .S . 752, 89
S .Ct. 2034, 23 L .Ed .2d 685 (1969), the area within a defendant's "immediate control" is
"the area from within which he might gain possession of a weapon or destructible
evidence ." Id at 763, 89 S .Ct. at 2040 . Neither party disputes that the distance
.
between Appellant and the firearms was only six to eight feet. One of the two weapons
was loaded and both were easily-accessible to Appellant . New York v. Belton , 453 U .S .
454, 460, 101 S .Ct. 2860, 2864, 69 L.Ed .2d 768 (1981) (the entire interior of a vehicle
and all containers therein would be considered within defendant's "immediate control") ;
Collins v. Commonwealth , Ky., 574 S .W.2d 296, 298 (1978) (air conditioner that was
"four to seven feet" from defendant's position in motel room was within his "immediate
control") ; see'also United States v . Williams , 104 F.3d 213, 215 (8th Cir. 1997) (noting
that there are "numerous" cases in which courts found a "nexus" when "weapons and
drugs were located in different rooms within a residence, but were found to be readily
available during the drug transactions .") . Here, Appellant, the weapons, and the
marijuana and drug paraphernalia were all in the same room . Accordingly, under
' But cf. Johnson v. Commonwealth , Ky., No. 2001-SC-883, _ S .W.3d . _, _ n . 1
(May 22, 2003) (noting that Montaque test will be satisfied only when, in addition, the
defendant is arrested "while committing the drug offense," but that, in many cases, such
as the instant case, the distinction is immaterial because the defendant was, in fact,
arrested while committing the drug offense) .
Montague, supra , there was sufficient evidence of both possession and nexus to
support a firearm enhancement under KRS 218A.992(1) .
Ill. PFO ENHANCEMENT.
A.
Amendment of Indictment.
Appellant next argues that his sentence must be vacated because the trial court
erroneously permitted count 5 of the indictment to be amended to change the charge
from PFO second-degree to PFO first-degree . Defense counsel raised the issue by
way of objection to the proposed penalty phase instructions immediately prior to
commencement of the penalty phase of the trial . Although the caption of the indictment
reflected that count 5 charged PFO first-degree, the body of count 5, in fact, charged
PFO second-degree, viz:
COUNT 5:
THE GRAND JURY CHARGES :
That the above-named defendant, Freeland Riley, who is more
than 21 years of age, has previously committed and been convicted for
the following prior felon and is now charged as being a Persistent Felony
Offender in the Second Degree,
(1) That on or about July 22 [sic], 1994, the defendant, Freeland
Riley, appeared in the McCracken Circuit Court, McCracken County,
Kentucky, a court of general criminal jurisdiction, pursuant to indictment
No . 93-CR-00217, and was convicted of the offenses of Trafficking in a
Schedule II Non-Narcotic, three counts of Trafficking in Marijuana less
than Eight Ounces, and three counts of Trafficking in Marijuana Over
Eight Ounces, and sentenced to thirteen (13) years, in the Department of
Corrections of Kentucky;
(2) That on or about December 17, 1987, the defendant, Freeland
Riley, appeared in the Ballard Circuit Court, Ballard County, Kentucky, a
court of general criminal jurisdiction, pursuant to Indictment No. 87-CR
00010, and was convicted of the offense of Third-Degree Burglary and
Theft by Unlawful Taking, and sentenced to five (5) years probation, in the
Department of Corrections of Kentucky.
(Emphasis added .) The trial judge found that the PFO second-degree charge within the
body of count 5 was a clerical error (the scrivener may have copied from the wrong
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form) and effectively corrected the error and thereby modified the body of the
indictment by instructing the jury on PFO first-degree .
"Strictly speaking, the caption of the indictment itself, and the facts recited
therein are not part of the finding of the grand jury." 41 Am . Jur. 2d, Indictments and
Informations § 71 (1995). Thus, in case of a variance between the language of the
caption and the language of the body of an indictment, the language of the body
controls . United States v. Martinez , 981 F .2d 867, 872 (6th Cir. 1992) ("The charging
language is in the body of [the indictment] . . . .") ; People v. Williams , 229 N .E.2d 495,
497 (III. 1967) ; State v. Trueax , 845 P .2d 1291, 1293 (Or. 1993) (en banc) (where
caption indicated charge was "sodomy in second degree" but body charged "sodomy in
the third degree," conviction of sodomy in the second degree reversed) ; Thibodeaux v.
State , 628 S .W.2d 485, 487 (Tex . Ct. App . 1982) . Thus, the issue becomes whether
the trial judge erred in allowing the indictment to be effectively amended to change the
charge in count 5 from PFO second-degree to PFO first-degree .
Criminal Rule 6.16 permits an indictment to be "amended any time before verdict
or finding if no additional or different offense is charged and if substantial rights of the
defendant are not prejudiced. If justice requires, however, the court shall grant the
defendant a continuance when such an amendment is permitted ."
Appellant does not claim that he did not have notice of the grand jury's intent to
charge him as a PFO first-degree . In addition to the recitation in the caption of the
indictment, Appellant was served on the day of his arraignment, January 21, 2000, with
both a warrant on the indictment and a criminal summons, each reflecting that he had
been indicted as a PFO first-degree . The transcript of the grand jury proceedings,
which had been made available to Appellant in response to a discovery request, RCr
-1 3-
5 .16(3), reflects that the grand jury voted to charge Appellant as a PFO first-degree .
Count 5, itself, recites that the charge is premised upon two prior felony convictions as
opposed to only one. Compare KRS 532.080(3) with KRS 532 .080(2). Finally, the
videotape of the pretrial conference held on March 31, 2000, reveals a sidebar
discussion between the prosecutor and defense counsel in which the prosecutor
clarified to defense counsel that Appellant was charged as a PFO first-degree . Thus,
Appellant was aware of the clerical error in the indictment and was neither surprised nor
precluded from adequately preparing his defense. He did not request a continuance .
Therefore, we conclude that his substantial rights were not prejudiced . The only
remaining issue is whether the amendment charged an additional or different offense .
PFO is a status, not a criminal offense . Hardin v . Commonwealth , Ky., 573
S .W.2d 657, 661 (1978). In Luna v. Commonwealth , Ky. App., 571 S .W.2d 88 (1977),
the defendant admitted during his own testimony at his trial for trafficking in a controlled
substance that he had previously been convicted of another trafficking offense . The
trial judge then allowed the Commonwealth to amend the indictment to charge secondoffense enhancement under then KRS 218A.990(2) (repealed 1992 Ky . Acts, ch . 441, §
30) . The Court of Appeals affirmed, holding that KRS 218A.990(2) did not define a
separate offense but only permitted the introduction of evidence necessary to
determine the penalty range for the charged offense . Id . at 89. It also held that the
amendment did not affect the defendant's substantial rights because he was aware of
his own criminal record and even admitted to the prior conviction . "In no way was he
prevented from preparing his defense more adequately, nor were there any surprises ."
Id . Other jurisdictions have reached the same conclusion under similar circumstances .
Baumaarner v. State , 872 S .W.2d 380, 384 (Ark. 1994) (amendment of indictment to
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add "habitual offender" allegation did not charge additional offense but only authorized
evidence relative to punishment upon defendant's conviction of indicted offense) ;
Howard v. State , 377 N .E.2d 628, 629 (Ind . 1978) (amendment of information to add
"habitual criminal" count did not charge separate offense but only provided a more
severe penalty for the indicted offense) ; State v. Whitten , 622 A .2d 85, 86 (Me. 1993)
(amendment to criminal complaint to charge prior DUI conviction for enhancement
purposes did not charge additional offense) ; see also 41 Am . Jur. 2d, supra, at § 175
("Changing the severity of the punishment upon conviction does not change the degree
of the crime, and such an amendment is permissible .") . We conclude that the trial
judge did not abuse his discretion in permitting the amendment .
B.
Prior judgment.
Appellant next argues that his sentence must be set aside because the 1994
McCracken Circuit Court conviction that was used for PFO first-degree enhancement
was invalid . Specifically, while the 1994 judgment recites that Appellant's conviction
was of "trafficking in a controlled substance in the first degree," a Class C felony, KRS
218A.1412(2), the 1993 indictment on which that judgment was premised, did not
charge him with that offense but with "trafficking in a schedule II non-narcotic," a Class
D felony . KRS 218A.140(1) (amended, 1992 Ky. Acts, ch . 441, § 5) ; KRS
218A.990(2)(a) (repealed, 1992 Ky. Acts, ch . 441, § 30) . The error probably relates to
the facts that the Controlled Substances Act was substantially amended by the 1992
General Assembly, 1992 Ky. Acts, ch . 441, effective July 14, 1992, and that some of
the offenses charged in the 1993 indictment were committed before July 14, 1992, and
others were committed after that date . The trafficking offense was committed on July 7,
1992, which explains why the indictment was under the subsequently repealed statutes .
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Appellant is obviously correct in his assertion that the 1994 judgment recites a
conviction for an offense for which he was not indicted . Nevertheless, (1) the sentence
imposed for that conviction was five years imprisonment, which falls within the penalty
range for either a Class D or Class C felony, KRS 532.060(2)(c) and (d) ; (2) the same
judgment also contains two additional felony convictions for trafficking in marijuana
(more than eight ounces, less than five pounds), Class D felonies, KRS
218A .1421(3)(a) (offenses committed after July 14, 1992), the validity of which
Appellant does not contest; and (3) a prior judgment of conviction is valid until set aside
by the court that entered it and cannot be collaterally attacked in a PFO proceeding .
Webb v. Commonwealth , Ky., 904 S.W.2d 226, 229 (1995). Thus, even if Appellant's
1994 conviction of trafficking in a controlled substance in the first degree were invalid
(an issue we do not reach), such does not affect the validity of the PFO first-degree
enhancement of his present conviction . In fact, the trial judge did not instruct the jury at
the penalty phase of the trial sub judice that it could find Appellant to be a PFO firstdegree on the basis of his 1994 conviction of trafficking in a controlled substance in the
first degree but only on the basis of his conviction in the same judgment of trafficking in
marijuana (more than eight ounces, less than five pounds).
The only remaining issue in this respect is whether Appellant could have been
prejudiced by the prosecutor's reference to Appellant's prior conviction for "trafficking in
a controlled substance" during his opening remarks at the penalty phase. The trial
court cured any possible error by giving the following admonition :
A moment ago, [the prosecutor] stated in his opening statement
that Mr. Riley had among his convictions, a conviction for, I think he said,
first-degree trafficking in a controlled substance . That was not correct .
He did not have that conviction . You will be given the evidence here in a
minute of what his actual convictions were .
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Regardless, even though the 1993 indictment charged Appellant with "trafficking
in a schedule II non-narcotic," the actual name of the offense was "trafficking in a
controlled substance," KRS 218A.140(1) (now amended), and the identification of the
substance as a schedule II non-narcotic only affected the penalty to be imposed upon
conviction of that offense . KRS 218A.990(2)(a) (now repealed) . See, etc . , Palmore &
Cooper, Kentucky Instructions to Juries (Criminal,) §§ 7 .16, 7 .17 (4th ed. Anderson
(interim rev.) 1990) .
IV. CRUEL AND UNUSUAL PUNISHMENT.
Appellant's final argument is that his twenty-year prison sentence violates the
proscription against cruel and unusual punishment guaranteed by the Eighth
Amendment to the United States Constitution and Section 17 of the Kentucky
Constitution . Appellant admittedly did not raise this issue before the trial court but we
will review it for "manifest injustice" under RCr 10 .26.
The Eighth Amendment to the United States Constitution provides : "Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted ." Section 17 of the Kentucky Constitution is identical, except that
it proscribes "cruel punishment" instead of "cruel and unusual punishments ." We
regard this variation in phraseology as a distinction without a difference . In Weber v.
Commonwealth, 303 Ky. 56, 196 S.W.2d 465 (1946), our predecessor court noted that
"cruel punishment" is regarded as "primarily relating to the kind and character or
method of punishment, referring to inhumane or barbarous treatment or punishment
unknown to the common law or which has become obsolete with the pro_ ress of
humanitarianism ." Id . at 469 (emphasis added) . "Cruel punishment" can relate to the
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severity in the amount or duration of the punishment, but if the punishment is within the
maximum prescribed by the statute violated, courts generally will not disturb the
sentence. Id . at 469-70 ; see also Monson v . Commonwealth , Ky., 294 S .W .2d 78, 80
(1956), overruled on other grounds by Owens v. Commonwealth , Ky., 487 S .W.2d 897,
900 (1972); Mills v. Commonwealth , 305 Ky. 44, 202 S.W.2d 1005, 1007-08 (1947) ;
McElwain v. Commonwealth , 289 Ky. 446,159 S.W.2d 11, 12 (1942) ; Bradley v.
Commonwealth , 288 Ky. 416, 156 S.W.2d 469, 471 (1941) .
Every criminal offense in this jurisdiction is defined by statute and all penal
statutes set maximum limits on penalties for those offenses . Appellant was convicted
of one count of possession of marijuana, a Class A misdemeanor in violation of KRS
218A.1422, and one count of possession of drug paraphernalia, a Class A
misdemeanor in violation of KRS 218A.500 . The penalties for both offenses were
enhanced to Class D felonies pursuant to KRS 218A.992(1)(b) because the jury found
beyond a reasonable doubt that Appellant was in possession of a firearm when the
offenses were committed . A Class D felony carries a penalty of one to five years
imprisonment . KRS 532 .060(2)(d) . Because the jury also found that Appellant was a
PFO first-degree, the possible range of penalties for his marijuana conviction was
enhanced to ten to twenty years in prison . KRS 532 .080(6)(b). Thus, Appellant's
sentence did not exceed the maximum aggregate sentence (twenty years) allowed
under KRS 532.110(1)(c).
Appellant makes a general claim that his ultimate sentence is disproportionate to
the nature of his offenses . Solem v. Helm , 463 U .S . 277, 290, 103 S.Ct. 3001, 3009,
77 L.Ed .2d 637 (1983). Any proportionality analysis of a claim of cruel punishment
should consider three factors :
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(1)
The gravity of the offense and harshness of the penalty ;
(2)
The sentences imposed on other criminals in the same jurisdiction ;
(3)
The sentences imposed for commission of the same crime in other
jurisdictions .
Id. at 290-92, 103 S .Ct. at 3010-11 .
Appellant asserts that twenty years in prison is too severe a penalty for
possession of marijuana and drug paraphernalia while in possession of a firearm .
However, it was Appellant's conviction for being a persistent felony offender in the first
degree that enhanced his maximum aggregate sentence from a possible ten years (the
jury initially recommended that the underlying sentences run consecutively) to twenty
years imprisonment . Commonwealth v. Messex, Ky., 736 S.W.2d 341, 342 (1987) . "[A]
State is justified in punishing a recidivist more severely than it punishes a first offender ."
Solem, supra , at 296, 103 S .Ct. at 3013 .
In Rummel v. Estelle , 445 U.S . 263, 100 S.Ct. 1133, 63 L .Ed .2d 382 (1980), the
United States Supreme Court held that a life sentence imposed upon a third-offense
felon for his conviction of obtaining $120 .75 by false pretenses did not constitute cruel
and unusual punishment, despite the fact that his prior convictions were also for nonviolent offenses . Id. at 285, 100 S.Ct. at 1145. In Solem , supra , the Supreme Court
held it was cruel and unusual punishment to impose a penalty of life in prison without
possibility of parole upon a third-offense felon convicted of uttering a worthless check in
the amount of $100.00, and whose prior convictions were all for non-violent offenses .
463 U .S. at 303, 103 S .Ct. at 3016-17 . However, Solem did not overrule Rummel v.
Estelle but distinguished it on the basis that the defendant in Rummel would be eligible
for parole in twelve years, whereas the defendant in Solem was ineligible for parole . Id.
at 297, 103 S .Ct. at 3013 .
Nor are the sentences imposed here disproportionate to sentences imposed on
other habitual offenders convicted of firearm-enhanced drug offenses in this jurisdiction.
E.g., Houston v. Commonwealth , Ky., 975 S .W.2d 925, 927 (1998) (firearm-enhanced
trafficking in cocaine charge further enhanced to twenty-four years imprisonment as a
result of defendant's status as a PFO second-degree) .
For satisfaction of the third prong of the Solem test, we need only note that
habitual criminal statutes are common in many jurisdictions, and sentences imposed
within the parameters of these statutes have been upheld as constitutional numerous
times. See, e .a . , People v. Deroulet , 48 P .3d 520, 528 (Colo. 2002) (upholding thirtysix-year sentence imposed in accordance with habitual criminal statute); State v.
Robinson , 831 So.2d 460, 468-69 (La. Ct. App . 2002) (upholding mandatory life
sentence for conviction of trafficking in cocaine, based upon defendant's status as fourtime felony offender under habitual criminal statute); Boyd v. State , 767 So.2d 1032,
1034 (Miss. Ct. App . 2000) (upholding thirty-year sentence without possibility of parole
where defendant was habitual criminal). Recently, the United States Supreme Court
upheld in Lockver v. Andrade, _ U .S . _, 123 S.Ct . 1166, 155 L .Ed .2d 144 (2003),
California's "three strikes" law, perhaps the strictest habitual offender statute in the
nation, against an Eighth Amendment challenge . Id . at _, 123 S.Ct . at 1175. The Court
held that the imposition of two life sentences against a three-time felony offender for his
conviction of two felony theft counts for stealing approximately $150 .00 worth of
videotapes was not so "grossly disproportionate" as to invoke Eighth Amendment
scrutiny . Id .
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In the present case, Appellant received a sentence of twenty years
imprisonment, a sentence within the penalty range provided by the applicable statutes .
He will be eligible for parole after serving twenty percent of his sentence . KRS
532 .080(7); KRS 439 .340; 501 KAR 1 :030 § 3(a) . Therefore, on the basis of our
proportionality analysis, we conclude that Appellant's aggregate sentence of twenty
years was not constitutionally prohibited .
Accordingly, the judgment of convictions and the sentences imposed by the
McCracken Circuit Court are affirmed .
All concur.
COUNSEL FOR APPELLANT :
John Palombi
Assistant Public Advocate
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A . B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
Perry T. Ryan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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