# IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINIONIS DESIGNATED "NOTTO BE PUBLISHED." PURSUANT TO THE RULES OF CIVILPROCEDURE PROMULGATED BY THE SUPREME COURT, CR76.28(4)(C), THIS OPINIONISNOT TO BE PUBLISHED AND SHALL NOT BE CITED ORUSED AS BINDING PRECEDENTIN ANY OTHER CASE INANY COURT OF THIS STATE; HOWEVER,
_ UNPUBLISHED KENTUCKYAPPELLATE DECISIONS, RENDERED AFTERJANUARY 1, 2003, MAY BE CITED FOR CONSIDERATIONBY THE COURTIF THERE IS NO PUBLISHED OPINIONTHATWOULD ADEQUATELYADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FORCONSIDERATION ·BYTHE COURT SHALLBE SET OUT AS AN UNPUBLISHED

DECISIONINTHE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALLBE TENDERED ALONG WITH THE DOCUMENT TO THE COURTAND ALLPARTIES TO THE ACTION.RENDERED: NOVEMBER 2, 2017 NOT TO BE PUBLISHED

2017-SC-000110-DG

COMMONWEALTH OF"KENTUCKY APPELLANT



## v. ON REVIEW FROM COURT OFAPPEALS CASE NO. 2015-CA-001916-MR MONTGOMERY CIRCUIT COURT NO.**lS~CR-00079** MANDY HUGHES APPELLEE

MEMORANDUM OPINION OF THE COURT REVERSING Mandy Hughes sold to a confidential i.Ilformant ten capsules containing heroin, the aggregate weight ofwhich amounted to less than two grams of heroin. She was indicted for trafficking in a controlled substance under Kentucky Revised Statute (KRS) 218A.1412(1)(c), 1 a statute creating an offense

iEffective June 29, 2017, the legislature amended KRS 218A.1412 to now state the following: (1) Aperson is guilty oftrafficki,ng in a controlled substance in the first degree when he or sheknowingly and unlawfully traffics in: (b) Two (2) grams or more ofmethamphetamine; (d) Any quantityofheroin
... As a result ofthis legislative amendment, the conflict at the center ofthis case, and any future case with this issue, no longer exists because possessing any quantity ofpunishable as a Class C felony with five fo tenyears' imprisonment for trafficking two or more grams or ten or more dosage units ofa Schedule I Controlled Substance, which classification includes heroin. Hughes moved the I • • trial court to amerid the indictment. She argued that she was**~mproperly** charged, the proper charge beingunder KRS 218A.1412(1)(e), a Class-D felony punishable by one to five years'.imprisonment for trafficking in less than two grams ofa Schedule I Controlled Substance. The trial court denied Hughes's motion, concluding that the Commonwealth exercised its discretion in determiningunder which section of

/ KRS 218A.1412 to prosecute Hughes. Hughes then entered a conditional guilty plea to the charge in the indictment and appealed the trial court's ruling to the Court ofAppeals. The Court ofAppeals reversed the ruling ofthe trial court and held that a statutory conflict existed withinKRS 21BA.1412 such that



### . ' . Hughes, having trafficked in less than two grams ofheroin, could only be charged with a Class D felony under KRS 218A.1412(1)(e). We granted discretionary review, reverse the opinion ofthe Court ofAppeals, and reinstate ) the trial court'sjudgment. I. BACKGROUND At all times relevant to this case, KRS 218A.1412 stated the following relevant provisions:·

heroinwhatsoever**~r** possessing ten ormore dosage units ofheroin both result

### ill a Class C felony conviction instead ofthe Class C and D discrepancy Hughes alleges underthe version ofKRS 21.8A.1412 underwhich she was prosecuted.
2J (1) A person is guilty oftrafficking in a controlled substance in the firstdegree when he"or she knowingly and unlawfully traffics in: (b) Two (2) grams or more ofheroin
...; (c) Ten (10) or more dosage units ofa controlled substance that is classified_in Schedules I or II and is a narcotic drug, or a controlled substance analogue;

-
(e) Any quantity ofa controlled substance specifie in paragraph (a), (b), or (c) ofthis subsection in an amount iess than the amounts specified in those paragraphs.
(3) (a) Any person who violates the provisions otsubsection (l)(a), (b), (c), or (d) qfthis section shall be guilty ofa Class C felony for (

.the first offense and a Class B felony for the second or subseqpent

offense. -. · (b) Any person.who Violates the provision ofsubsection (l)(e) of this· section: 1. Shall be guilty ofa Class D felony.for the first offense. · ' KRS 218A.010(12) defines 

### dosage unitas a "single pill, 

### capsule, ampule, liquid,
or other form ofadministration available as a single unit[.]"2 Heroin is a Schedule I Controlled Substance. 3 KRS 532.060(2)(c) imposes a five to ten-year

2 (emphasis added). a KRS 2lSA.050, Kentucky's enumeration ofSchedule I Controlled Substances, was repealed by the legislature· during the pendency ofthis case. The Court ofAppeals relied on this statute in finding heroin to be a Schedule I Controlled substance. KRS 218A.020(3)(a), currently in effect, states, "Ifany substance is designated or rescheduled as a controlled substance under the federal Controlled Substances Act, the dnig shall-be considered to be controlled at the state level in the same numerical

- schedule corresponding tO the federal schedule." 21 U.S.C. § 812 Schedule I(b)(lO), a section ofthe federal Controlled Substances Act, lists heroin as a Schedule I - Controlled Substance. So, regardless ofwhich statute applies, Kentucky identifies heroin as a Schedule I Controlled Substance. 3prison sentence for Class C felonies, while KRS 532.060(d) imposes a one to five-year prison sentence for Class D felonies. In sum, the statutes listed above frame the sole issue in this case: Whether an individual selling ten capsules-but less than two grams-ofheroin should be charged under KRS 218A.1412(1)(c),\a Class C felony and punishable by five to tenyears' imprisonment, or under KRS 218A.1412(1)(e), a Class D felony and punishable by one to five years' imprisonment.
II. ANALYSIS "Insofar, as this case requires us to construe statutoryprovisions, we do
so de 

### novo.'"4 We agree with the Commonwealth that no ambiguity in the J i
. relevant version ofKRS 218A.1412 exists. The version ofKRS 218A.1412 under i " review today simply provided prosecutors with two different avem.i.es under which to charge potential offenders. The statutory sections do not conflict; rather, theyprovide options for the Commonwealth to combat the use and ·spread ofheroin in Keptucky.



### - In finding this to be the case, we hi.ghlight the rules ofstatutory construction used to**co~e** to this conclusion. "The primary purpose of**ju~icial** construction is to carry:out the intent ofthe legislature. In construing a

. 

### . statute, the court must consider 'the intended purpose ofthe statute and the

4 Commonwealth v. Morseman, 379 S.W.3d 144, 148 (Ky. 2012) (citing BobHook Chevroletlsuzu, Inc. v. Commonwealth Transp. Cabinet, 983 S.W.2d 488, 490-91 (Ky. 1998)). 4mischiefintended to be remedied."'5 "The first principle ofstatutory construction is to use the plain meaning ofthe words used in the statute."6 "A court may not interpret a statute atvariance with its stated language."7-"We presume that the General Assembly intended for the statute to be construed as 

### " a whole, for all ofits parts to have meaning, and for it to harmonize with · related statutes."8 "[S]tatutes must be given a literal interpretationunless they
are ambiguous and ifthe words are not ambiguous, no statutory construction is required."9 In addition to these statutory canons, we recognize that "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bringbefore a grandjury, generally rests entirely in his discretion."10 The reading ofthe relevantversion ofKRS 21BA.1412 is simple: Ifa situation arises where an individual is trafficking in less than two grams of heroin, but more than ten dosage units, the Commonwealth canuse KRS -218A.1412(l){c) or (e) to charge the individual. The language ofthe statute is

s MonumentalLifeIns. Co. v. Departmentof Revenue, 294 S.W.3d LO, 19 (Ky. App. 2008). 6 MonumentalLifeInsurance, 294 S.W.3d at 19 (citing Revenue**Cabin~t** v. O'Daniel, 153 S.W.3d 815 (Ky. 2005)). ' 1 Smith.Kline Beecham Corp. v. Revenue Cabinet, 40 S.W.3d 883, 885 (Ky. App. 2001). s Shawnee TelecomRes., Inc. v:·Brown, 354 S.W.3d 542, 551 (Ky. 2011). 9 Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002). io Bordenkircherv. Hayes, 434 U.S. 357, 364 (1978). 

### \ 5 (clear, and the language ofthe statute effectuates the intent ofthe legislaturethe spread ofheroin is an epidemic, a "mischief," plaguing this state, and the relevant version ofKRS 218A.l412 gave the Commonwealth options for battling \ this plague. In a situation like Hughes's, where a defendant trafficked in ten dosage units, but less than two grams, ofheroin, the plain and literal meaning ofKRS 218A.l412 afforded the prosecutor the discretion to seek an indictment ,under (l)(c) or (l)(e), thereby imposing a Cfass C or D felony punishment. This is not conflict or ambiguity-is permissible prosecutorial discretion. Because the statutes do not conflict and are not ambiguous, the Court of Appeals incorrectly concluded that because "the specific provision takes precedence over the general," 11 and because KRS 218A.1412(1)(b) specifically enumerates,"heroin" when making punishable trafficking in two or more grams ofheroin, this meant that KRS 218A.1412(1)(e) always applied in a situation**l~ke** the factual circumstances ofthis case. The statutory canons used by the Court ofAppeals only apply in circumstances ofstatutory conflict or ambiguity. As we have explained, the now-superseded version ofKRS 218A.1412 simply**p~ovided** alternative avenues, options, for the Commonwealth to battle the spread ofheroin, not conflicting statutes showing contrary legislative intent. In addition, the Court ofAppeals incorrectlyresorted to a common understanding of

### dosage unit, instead ofapplying the statute's enumerated definition'Of 

### dosage unit. "When there is no specific statutory definition, words

11 Commonwealth v. Phon, 17 S.W.3d 106, 107 (Ky. 2000). 6
1ofa statute shall be construed according to their common and approved usage." 12 "An unambiguous statute is to be applied without resort to any outside aids." 13 Taken together, these rules oflawprovide that a statute's enumeration ofa term, ifpresent, takes precedence over the common usage of**~a** term. The Court ofAppeais incorrectly resorted to a common-usage definition of

### heroin_when concluding that the legislature did not intend for heroin to be ( measured in prescribed amou!lts, but rather bybulkweight. KRS 218A.010(12) clearly defines 

### dosage unit as a "single pill, 

### capsule, ampule, liquid, or other

. . form ofadministration available as a single unit[.]" 14 In otherwords, ten capsules ofheroin equates to ten dosage units ofheroin under the language of

. . the statute. KRS 218A.010(12) is unambiguous in this regard, so we do not resort to the common usage of

### dosage unit. We find applicable to the present case the Court ofAppeals' statement in 

### Commonwealth v. McKinney.is There, the Court ofAppeals stated that iftwo penalties apply to the same violation, a statutory conflict exists, and rules of stattitory construction must be applied to resolve the conflict. 16 But two ( different violations in KRS 218A.1412 existunder the facts ofthe present case-trafficking heroin by ten or more dosage units and trafficking heroin by

12 Kentucky UnemploymentIns. Co. v. Jones, 809 S.W.2d 715, 716 (Ky. App. 1991) (citing ClaudeN. Fannin Wholesale Co. v. Thacker, 661S.W.2d477 (Ky. App. 1983)). I 13 Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002). 14 (emphasis added). 15 594 S.W.2d 884 (Ky. App. 1979). 16 McKinney, 594 S.W.2d at 887. 7less tha.n two**grams~** Trafficking heroin by dosage unit requires the heroin to
\ be packaged inside a "single pill, 

### capsule, ampule, liquid, or other form of administration available as a single unit" 17, in addition to a requirement that ten ofthese dosage units exist, which trafficking less than two grams ofheroin '
. . does not. Similarly, trafficking less than two grams ofheroin requires some quantity ofheroin to exist, while this fact alone would not satisfy a conviction oftrafficking ten or more dosage units. Because the crimes a'.re distinct, no conflict exists. Lastly, while the rule oflenityrequires any ambiguity_in a statute to be resolved in favor ofa criminal defendant,is because we find no ambiguity in the
' relevant version ofKRS 218A.1412, the rule oflenity does not apply in this
case. III. CONCLUSION We reverse the Court ofAppeals opinion and hold that the version ofKRS 218A.1412as it existed at all times relevaht to this case afforded the Commonwealth the ability to seek indictment ofindividuals under either subsection (l)(c) or (l)(e) when either statute applied to the circumstances of the case. Therefore, no error occurred when the trial court denied Hughes's motion to amend the indictment. Thejudgment ofthe trial court is :reinstated. All sitting.,All concur.

17 KRS 218A.020(12) (emphasis added). 18 White v. Comfnonwealth; 178 S.W.3d 470, 483-84 (Ky. 2005). 8COUNSEL FORAPPELLEE: Shannon Renee Dupree Assistant Public Advocate
COUNSEL FOR APPELLANT: Andy Beshear Attorney General ofKentucky Emily Lucas Attorney General's Office

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