6*Uyrrmt (~Vurf of 'Ptmf

2009-SC-000003-MR

RENDERED: AUGUST 26, 2010

BI.I S

ON APPEAL FROM MCCRACKEN CIRCUIT COURT

V. HONORABLE CRAIG Z. CLYMER, JUDGE

NO. 05-CR-00500

DDQTG Ae4, s

FREDERICK JACKSON APPELLANT

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE CUNNINGHAM

AFFIRMING

On September 8, 2005, Appellant, Frederick Jackson, was arrested in

Future City, Kentucky, after law enforcement officials set up a controlled drug

buy with cooperating witness, Kimberly Pace. According to the testimony of

Pace, she called Appellant and told him that she wanted to buy approximately

$300.00 worth of crack cocaine. Pace, in working with law enforcement, went

to the local IGA store and raised the hood of her car, as if she had car trouble.

She called Appellant, informing him that she could not come to his location

due to car trouble . Appellant then came to the IGA store . Once there, Pace

entered Appellant's vehicle and purchased crack cocaine . At the end of the

buy, Pace gave a pre-arranged signal to the police and exited the vehicle . Police

officers then approached the car and arrested Appellant. A search incident to

arrest revealed 9.4 grams of crack cocaine in Appellant's pocket, 14 grams of
crack cocaine in Appellant's sock, and $3,878 .00 in cash, which included the

$300 .00 paid by Pace . During the search of Appellant's vehicle, officers also

found two "blunts" containing marijuana on the front passenger-side floor

board. A "blunt" is a hollowed-out cigar with marijuana in place of the

tobacco.

Appellant waived his right to a jury trial and a bench trial followed. After

the presentation of evidence, Appellant was found guilty of first-degree

trafficking in a controlled substance, possession of drug paraphernalia, and

possession of marijuana. The Commonwealth then introduced evidence

showing Appellant had been previously convicted in the McCracken District

Court of trafficking in marijuana. ) The trial court found this evidence

sufficient to support the enhancement of the trafficking charge to a second

offense, as defined by KRS 218A.010(35) . The trial court also found Appellant

guilty of being a second-degree persistent felony offender. Appellant was

sentenced to twenty-five years in prison, as enhanced by the PFO conviction .

He now appeals the final judgment entered as a matter of right. Ky. Const. §

110(2) (b) .

Appellant raises the following allegations of error on appeal : (1) the trial

court erred in finding Appellant competent to stand trial, and because of

Appellant's alleged incompetence, he could not make a valid waiver of counsel;

and (2) the trial court impermissibly used a prior misdemeanor marijuana

trafficking offense to enhance the felony cocaine trafficking conviction .

1 Case No . 03-M-1872 .
Appellant's competency

Appellant argues that the trial court erred in finding him competent to

stand trial. Specifically, Appellant argues that the competency evaluation and

report relied on by the trial court was not current, and that Appellant's erratic

behavior should have caused the trial court to sua sponte order an updated

evaluation . We disagree.

A defendant is competent to stand trial if he "has a substantial capacity

to comprehend the nature and consequences of the proceedings against him

and to participate rationally in his defense ." Alley v. Commonwealth, 160

S.W.3d 736, 739 (Ky. 2005) (citing Commonwealth v. Strickland, 375 S.W.2d

701 (Ky. 1964)) . "A competency determination is based on the preponderance

of the evidence standard." Chapman v. Commonwealth, 265 S.W.3d 156, 174

(Ky. 2007). We review a trial court's finding of competency for clear error and

will reverse only if it is not supported by substantial evidence. Id.

In response to a motion filed by Appellant's trial counsel on March 9,

2007, the trial court ordered a competency evaluation . Appellant was

examined by Dr. Stephen Free in July 2007, and his report was submitted in

August 2007 . Sometime after his evaluation at the Kentucky Correctional

Psychiatric Center (KCPC), Appellant was transferred to the custody of the

state of Illinois until some point between June 13, 2008 and July 25, 2008 . A

competency hearing was later set for September 16, 2008 .

At the competency hearing, Dr. Free was the sole witness called. Dr.
Free testified that he spoke to Appellant about his understanding of the legal

process and did not find Appellant suffered from any mental condition which

would affect or interfere with his ability to comprehend the nature of the

proceedings, or interfere with his ability to rationally participate in his defense .

Dr. Free believed that Appellant was competent to stand trial. Further, Dr .

Free stated that, assuming Appellant had remained drug-free while

incarcerated during the time since the evaluation, he would not expect to see

any change in Appellant's condition, barring some catastrophic event. No

medication for any medical or mental condition was given to Appellant at the

time of his evaluation, nor did his treatment while at KCPC include any

prescribed medication . Dr. Free ultimately reaffirmed his belief that Appellant

was competent to stand trial at the time of the competency hearing. As

Appellant offered no evidence to rebut the claims of Dr . Free, we conclude that

the trial court's decision was based upon substantial evidence showing that

Appellant was competent to stand trial .

Appellant, however, maintains that the trial court should have ordered

an updated evaluation of his competency . However, before a trial court may

sua sponte order a mental health evaluation of a defendant, "the reasonable

grounds must be called to the attention of the trial court by the defendant or

must be so obvious that the trial court cannot fail to be aware of them ." Via v.

Commonwealth, 522 S.W.2d 848, 849-50 (Ky. 1975) . Initially, after the

competency hearing, there was no suggestion by Appellant's attorney, the
Commonwealth, or the trial court, all of whom were in a position to observe

Appellant's behavior at the hearings and during the trial, that Appellant was

unable to consult with his lawyer with a reasonable degree of rational

understanding of the nature of the proceedings . Appellant appeared in court

for every proceeding and the record demonstrates nothing in Appellant's

demeanor at these proceedings that should have given the trial court reason to

doubt his competency. We fail to see how the trial court had "reasonable

grounds to believe the defendant [was] incompetent to stand trial" in the period

of time between the initial determination of competency and the trial. KRS

504.100(1) .

Additionally, Appellant contends that, because of the filing of multiple,

unintelligible pro se pleadings which refer to constitutional provisions and

statutes with little or no bearing on the issues in dispute, the trial court had

reasonable grounds to conduct another competency evaluation . However, this

is only one factor among many to consider. See Mills v. Commonwealth, 996

S.W .2d 473, 486 (Ky. 1999) ("Evidence of a defendant's irrational behavior, his

demeanor in court, and any prior medical opinion on competence to stand trial

are all relevant facts for a court to consider."). These pleadings, by themselves,

are simply insufficient to alert the trial court to question Appellant's

competency. Pro se pleadings are not held to the same standard as those

prepared by an attorney: Case v. Commonwealth, 467 S.W.2d 367, 368 (Ky.

1971) . In addition, Appellant had been observed by this very trial judge for a
period of approximately four years, both during the pendency of this case, as

well as a prior proceeding in the McCra.cken Circuit Court in which Appellant

was deemed competent to stand trial. 2 Appellant has pointed to no

"circumstances suggesting a change that would render the accused unable to

meet the standards of competence to stand trial ." Drope v. Missouri, 420 U.S .

162, 181 (1975) .

Simply stated, Appellant has failed to meet the burden of demonstrating

that he was not competent to stand trial, nor does he offer any evidence to

rebut the conclusions by Dr. Free that he was competent to stand trial . "A

State may presume that the defendant is competent and require him to

shoulder the burden of proving his incompetence by a preponderance of the

evidence." Cooper v. Oklahoma, 517 U.S . 348, 355 (1996) (citing Medina v.

California, 505 U.S . 437, 449 (1992)) . Accordingly, we find no error in the trial

court's failure to order another competency evaluation .

We, therefore, must also disagree with Appellant's suggestion that he

could not validly waive his right to counsel . "The standard for determining a

defendant's competency to waive counsel is the same standard used to

determine if a defendant is competent to stand trial." Chapman, 265 S.W.3d at

166 (citing Godinez v. Moran, 509 U.S . 389, 399 (1993)) . As Appellant was

competent to stand trial, so, too, was he competent to waive his right to

counsel.

2 Case No. 04-CR-00306-002 .
Prior misdemeanor marijuana trafficking offense enhancing the felony

cocaine trafficking conviction

Lastly, Appellant argues that the trial court impermissibly found his

conviction of trafficking in a controlled substance (cocaine) to be a second

offense by virtue of his prior misdemeanor conviction of trafficking in a

controlled substance (marijuana) . Appellant suggests that we reject the

reasoning of Commonwealth v. Churchwell, 938 S . W.2d 586 (Ky.App . 1996),

and hold that the underlying prior drug trafficking offense must be a felony

conviction in order for it to enhance a future conviction as a "second or

subsequent offense" under KRS 218A.1412(2) .

KRS 218A.010(35) defines a "second or subsequent offense" in pertinent

part as follows:

"Second or subsequent offense" means that for the

purposes of this chapter an offense is considered as a

second or subsequent offense, if, prior to his

conviction of the offense, the offender has at any time

been convicted under this chapter, or under any

statute of the United States, or of any state relating to

substances classified as controlled substances or

counterfeit substances, except that a prior conviction

for a nontrafficking offense shall be treated as a prior

offense only when the subsequent offense is a

nontrafficking offense. For the purposes of this

section, a conviction voided under KRS 218A .275 or

218A.276 shall not constitute a conviction under this

chapter[.]

In Churchwell, the Court of Appeals stated the following:

KRS 218A. 1421(2)(b) permits a felony conviction on a

marijuana trafficking charge if it is a "second or

subsequent offense." Despite [Appellant's] argument to
the contrary the language of [KRS 218A.010(35)],

which defines a "second or subsequent offense" as

being one which occurs after any prior conviction

under KRS Chapter 218 or any other state or federal

law, clearly does not require the underlying prior drug

trafficking conviction to be a conviction for trafficking

in marijuana in order for it to be relied upon to

enhance a subsequent conviction pursuant to KRS

218A.1421(2) .

Id. at 587.

The same holds true for a conviction under KRS 218A.1412(2) for firstdegree trafficking in a controlled substance. By its terms, KRS 218A .010(35)

does not require that the underlying prior drug trafficking offense be a felony

conviction in order for it to enhance a future conviction as a "second or

subsequent offense." All that section requires is some conviction under

Chapter 218 or any other state or federal law, a requirement Appellant's prior

misdemeanor conviction clearly satisfies. Appellant's reasoning would require

this Court to add additional language to the statute. This we will not do . See

Commonwealth v. .Reynolds, 136 S.W.3d 442, 445 (Ky . 2004) ("We should not

add or subtract from the statute, nor should we interpret the statute to provide

an absurd result.") . Accordingly, we find no error by the trial court.

The judgment of the McCracken Circuit Court is hereby affirmed .

All sitting. All concur .
COUNSEL FOR APPELLANT:

Shelly R. Fears

Assistant Public Advocate

Department of Public Advocacy

100 Fair Oaks Lane, Suite 302

Frankfort, KY 40601-1133

COUNSEL FOR APPELLEE:

Jack Conway

Attorney General

Jason Bradley Moore

Assistant Attorney General

Office of Criminal Appeals

Attorney General's Office

1024 Capitol Center Drive

Frankfort, KY 40601-8204