FROM CAMPBELL CIRCUIT COURT HONORABLE FRED A. STINE, V, JUDGE
ACTION NO. 14-CR-00718
FOR APPELLANT: Robert C. Yang Assistant Public Advocate
FOR APPELLEE: Andy Beshear Attorney General of Kentucky James
Havey Assistant Attorney General Frankfort, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; JOHNSON AND NICKELL, JUDGES.
these consolidated appeals, Christopher Applegate challenges
the Campbell Circuit Court's denial of a suppression
motion, denial of a motion to withdraw his guilty pleas,
recommendation of special conditions of parole, imposition of
court costs, and imposition of a partial public defender fee.
Applegate also challenges his conviction on a charge of
possession of a handgun by a convicted felon. Following a
careful review, we affirm in part and reverse in part.
12, 2014, police received a report of a pursuit between two
cars with one of the drivers being armed with a gun. On
arrival in the area, Campbell County Police Officer Thomas
Lakes observed a vehicle matching the description in the
report. Officer Lakes conducted a traffic stop of the
vehicle, approached the car, and asked the driver-later
identified as Applegate-to exit the vehicle. Once he
explained the reason for the stop, Officer Lakes inquired
whether Applegate had any guns. Applegate indicated he did
not; volunteering he had recently been released from prison
and wanted no trouble with the police. Officer Lakes
subsequently learned Applegate had an outstanding warrant for
failure to register as a sex offender.
officers arrived on-scene, one of whom observed a handgun in
Applegate's car in plain view in a seat pocket within
reach of the driver. On top of the console between the front
seats was a quantity of methamphetamine. Applegate was
arrested and charged with trafficking in methamphetamine.
Officers located additional drugs, scales and packaging
material, as well as two cellular telephones, a tablet
computer and a digital camera in the vehicle.
the electronic devices might contain information pertinent to
his drug investigation, Officer Lakes prepared an affidavit
for a search warrant for the two phones and the tablet. He
indicated he was looking for photos, videos or communications
related to guns, drug activity, co-conspirators, drug network
activity and other associated information. After the warrant
was issued, the devices were delivered to Bureau of Alcohol,
Tobacco and Firearms Enforcement Agent Michael Oergel, a
digital investigator, for forensic examination, analysis and
recovery of data. Both phones and the tablet were equipped
with either a SIM or MicroSD memory card to expand the memory
capabilities of the devices; the presence of the expanded
memory cards could not be readily discerned by a user.
his examination, Agent Oergel found what he suspected to be
photographs of a methamphetamine cooking operation. Although
he had not been looking for evidence of other crimes, he
could not tell from the file names what sort of images he
would find upon opening each file. Several of the files
contained photos and videos he immediately recognized as
depicting child pornography. Agent Oergel returned the phones
and tablet to Officer Lakes along with a narrative report of
the contents of his findings.
on the finding of child pornography, and Applegate's
prior conviction for possessing such illicit material, a
second search warrant was procured for the digital camera
that was in Applegate's possession on the day of his
arrest. No evidence of illegal activity was recovered.
search warrant was procured to conduct a further, more
in-depth examination and analysis of all the devices. This
analysis revealed a large amount of data, including text
messages relating to drug trafficking and additional photos
and videos depicting child pornography.
was indicted for firearm-enhanced trafficking in
methamphetamine and being a persistent felony offender in
the second degree (PFO II). He was separately indicted for
possession of a handgun by a convicted felon. In a third
indictment, he was charged with seven counts of possessing
material portraying a sexual performance by a
minor and being a PFO II.
to trial, Applegate moved to suppress all evidence seized as
a result of the search warrants, challenging their validity
and arguing investigators exceeded the scope of the warrants.
At the conclusion of a hearing on the matter, the trial court
raised an issue related to sufficiency of the affidavit
supporting issuance of the initial search warrant. After
permitting the parties to brief the matter and receiving
multiple memoranda on the issue, the trial court convened a
second hearing to take testimony from Officer Lakes and
former District Court Judge Gregory Popovich, the issuing
magistrate of the challenged search warrant. The trial court
denied the suppression motion in a lengthy and comprehensive
order entered on July 1, 2016.
subsequently entered an Alford conditional plea
on the charges of possessing material portraying a sexual
performance by a minor, reserving the right to appeal from
the trial court's denial of his suppression
motion. In that case, the PFO II charge was
dismissed, and the Commonwealth recommended a sentence of
thirteen years' imprisonment. Applegate entered an
unconditional plea on the trafficking charge with the PFO II
charge being dismissed and the Commonwealth recommending an
eight-year sentence. He also entered an unconditional plea on
the charge of possession of a firearm by a convicted felon,
receiving a recommended sentence of five years on that
charge. The eight- and five-year sentences were to run
consecutively to each other and concurrently with the
thirteen-year sentence, for a total aggregate sentence of
thirteen years' imprisonment. A subsequent motion to
withdraw his guilty pleas on the trafficking and possession
of a handgun charges was denied. These consolidated appeals
raises multiple contentions of error in seeking relief from
his convictions. First, he launches a multi-faceted attack on
the trial court's denial of his suppression motion. Next,
he contends he was not a convicted felon and therefore, could
not legally be found guilty of the charge of being a felon in
possession of a handgun. Third, he contends the trial court
should have granted his motion to withdraw his guilty pleas.
Finally, he argues the trial court made three errors in his
sentencing when it sought to ...