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Commonwealth v. Gamble

Supreme Court of Kentucky

February 19, 2015

COMMONWEALTH OF KENTUCKY, APPELLANT
v.
GARY GAMBLE, SR., APPELLEE

Released for Publication March 12, 2015.

ON REVIEW FROM COURT OF APPEALS. CASE NO. 2011-CA-001658-MR. JOHNSON CIRCUIT COURT NO. 10-CR-00145.

COUNSEL FOR APPELLANT: Jack Conway, Attorney General of Kentucky, Bryan Darwin Morrow, Assistant Attorney General.

COUNSEL FOR APPELLEE: Steven Jared Buck, Department of Public Advocacy.

OPINION OF THE COURT BY JUSTICE, CUNNINGHAM. Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ., sitting. All concur.

OPINION

Page 717

CUNNINGHAM, JUSTICE.

Gary Gamble, Sr. was arrested for selling three hydrocodone pills to an informant. On September 17, 2010, a Johnson Circuit Court Grand Jury indicted Gamble on trafficking in a controlled substance in the second degree (" TICS2" ) and being a persistent felony offender (" PFO" ) in the first degree. At the time of his indictment, TICS2, which is proscribed in Kentucky Revised Statute (" KRS" ) 218A.1413, was categorized as a Class D felony carrying a sentence of one to five years imprisonment. On June 8, 2011, the General Assembly enacted House Bill 463 (" HB 463" ), titled the Public Safety and Offender Accountability Act. HB 463 overhauled the Commonwealth's sentencing policies in order to " maintain public safety and hold offenders accountable while reducing recidivism and criminal behavior and improving outcomes for those offenders who are sentenced." KRS 532.007(1). One of the statutes HB 463 amended is KRS 218A.1413. As it relates to the offense Gamble committed, HB 463 lessened the previous five-year maximum sentence to three years imprisonment. KRS 218A.1413(2)(b)(1).

Gamble subsequently reached an agreement with the Commonwealth, but first sought dismissal of the first-degree PFO charge. Grounds for Gamble's motion were based on HB 463's amendments to KRS 218A.1413, which he argued prohibited the trial court from enhancing his sentence by virtue of his status as a PFO. After conducting a hearing on the matter, the trial court denied Gamble's motion. The trial court acknowledged that the amended version of KRS 218A.1413 lessened the maximum sentence Gamble could receive for the TICS2 charge from five years to three years imprisonment. However, the trial court disagreed with Gamble that the amendment prohibited the enhancement of his sentence due to his status as a PFO. Consequently, Gamble entered a guilty plea to both TICS2 and being a PFO in the second degree. Gamble also provided the trial court with notice of his approval, as required by KRS 446.110, for the court to sentence him pursuant to the newly-amended version of KRS 218A.1413. Gamble's plea was conditioned upon his right to appeal the trial court's order denying his motion to dismiss the PFO charge. The trial court ultimately sentenced Gamble to one year imprisonment for the TICS2 charge, which was enhanced to five years by the PFO charge. The sentence was ordered to be suspended after Gamble served one year, after which he would serve the remainder of his sentence on supervised placement. Gamble subsequently appealed the trial court's order denying his motion to dismiss the PFO charge.

Page 718

The Court of Appeals reversed the trial court's decision and held that KRS 218A.1413, as amended, prohibits the enhancement of Gamble's sentence beyond a period of three years. The Court of Appeals reasoned that since the PFO statute mandates a minimum enhancement of five years, TICS2 is not eligible for PFO enhancement. See KRS 532.080. In formulating its conclusion, the Court of Appeals focused on the changes HB 463 made to other statutes pertaining to controlled substances, including KRS 218A.1414 and KRS 218A.1415, the statutes proscribing third-degree trafficking in a controlled substance and first-degree possession of a controlled substance, respectively. Based on the amendments to these statutes, the Court of Appeals concluded that the General Assembly intended on creating a " sub-group" of lighter Penalties for certain non-violent, first-time drug related crimes. It would be nonsensical, the Court of Appeals concluded, for a trial court to enhance a sentence based on one of these underlying " sub-group" offenses. Consequently, the Court of Appeals reversed the trial court's order denying Gamble's motion to dismiss and the case was remanded to the trial court with directions for it to conduct a new sentencing hearing. This Court granted discretionary review.

The issue before the Court is one of statutory construction, requiring us to conduct a de novo review. See, e.g., Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007). Our main goal in construing the statute is " to give effect to the intent of the General Assembly." Shawnee Telecom Resources, Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011). Of course, the most logical method of discerning the General Assembly's intent is to look to the plain wording of the statute, assigning " the words employed in the statute . . . their ordinary meaning." Lynch v. Commonwealth, 902 S.W.2d 813, 814, 42 4 Ky. L. Summary 32 (Ky. 1995). Accordingly, we will focus on the words the General Assembly used in constructing HB 463's amendment to KRS 218A.1413.

As amended, KRS 218A.1413, states as follows:

(1) A person is guilty of trafficking in a controlled substance in the ...

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