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Applegate v. Commonwealth

Court of Appeals of Kentucky

September 14, 2018

CHRISTOPHER APPLEGATE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE AND CHRISTOPHER APPLEGATE APPELLANT
v.
COMMONWEALTH OF KENT UCKY APPELLEE AND CHRISTOPHER APPLEGATE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE AND CHRISTOPHER APPLEGATE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLE FRED A. STINE, V, JUDGE ACTION NO. 14-CR-00718

          BRIEFS FOR APPELLANT: Robert C. Yang Assistant Public Advocate Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky

          BEFORE: CLAYTON, CHIEF JUDGE; JOHNSON AND NICKELL, JUDGES.

          OPINION

          NICKELL, JUDGE.

         In 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.

         On May 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.

         Backup 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.

         Believing 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.

         During 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.

         Based 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.

         A third 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.

         Applegate was indicted for firearm-enhanced trafficking in methamphetamine[1] and being a persistent felony offender in the second degree (PFO II).[2] He was separately indicted for possession of a handgun by a convicted felon.[3] In a third indictment, he was charged with seven counts of possessing material portraying a sexual performance by a minor[4] and being a PFO II.

         Prior 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.

         Applegate subsequently entered an Alford[5] 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.[6] 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 followed.

         Applegate 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 ...


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