Opinion
NO. 2017-CA-000722-MR
04-26-2019
MICHAEL DAY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Ryan Vantrease Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 15-CR-002791 OPINION
VACATING AND REMANDING
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BEFORE: K. THOMPSON AND L. THOMPSON, JUDGES; HENRY, SPECIAL JUDGE. THOMPSON, K., JUDGE: Michael Day appeals from a final judgment of the Jefferson Circuit Court sentencing him pursuant to a plea agreement to five-years' imprisonment for various offenses, including trafficking heroin. Day's lone argument is that the trial court erred by concluding in the final judgment that Day did not have a "substance use disorder." That finding is crucial because under Kentucky Revised Statutes (KRS) 218A.1412(3)(b)(2), if Day were found to have had a substance use disorder at the time of his offenses, he would presumably be eligible for parole after serving 20% of his sentence but, if he were found to not have a substance use disorder, he would have to serve 50% of his sentence to be parole eligible.
Special Judge Michael L. Henry sitting by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution. Special Judge Henry concurred in part, dissented in part, and filed separate opinion prior to the expiration of his appointment on April 24, 2019.
Although there are exceptions which we need not address here, persons who receive felony sentences ranging between two and thirty-nine years of imprisonment must serve 20% of their sentence prior to becoming eligible for parole under 501 Kentucky Administrative Regulations (KAR) 1:030 § 3(1)(c).
KRS 218A.1412(3)(b)(2)(b) states that '"[s]ubstance use disorder' shall have the same meaning as in the current edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders [DSM V]." The issue of how a court determines whether a defendant has a substance use disorder under KRS 218A.1412 is a matter of first impression.
The relevant facts here are simple and largely uncontested. Day was indicted for trafficking in two or more grams of heroin while in possession of a firearm. Pursuant to a plea agreement, Day pleaded guilty to several charges and the trafficking in heroin while in possession of a firearm charge was amended to trafficking in less than two grams of heroin. The parties agreed to recommend a cumulative five-year sentence, and Day was permitted to argue that he had a substance use disorder.
Before imposing sentence, the court held a hearing to determine whether Day had a substance use disorder. Day was the only witness. Day testified he was addicted to crack cocaine for about twenty-five years but had overcome that addiction prior to being introduced to heroin. Day became addicted to heroin, testifying he eventually used about a gram daily (which he said cost about $200). Day began to sell heroin to help finance his own habit, though he also maintained legitimate employment.
The trial court quickly found without objection that Day was a drug trafficker for commercial gain, and thus met the 50% parole eligibility requirement of KRS 218A.1412(3)(b)(2)(a). After opining that Day's credibility was negatively impacted by his attempt to minimize the extent of his trafficking, the court patiently tried to apply the eleven-prong DSM V definition of substance use disorder:
1. Opioids are often taken in larger amounts or over a longer period than was intended.
2. There is a persistent desire or unsuccessful efforts to cut down or control opioid use.
3. A great deal of time is spent in activities necessary to obtain the opioid, use the opioid, or recover from its effects.
4. Craving, or a strong desire or urge to use opioids.
5. Recurrent opioid use resulting in a failure to fulfill major role obligations at work, school, or home.
6. Continued opiod use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of opioids.
7. Important social, occupational, or recreational activities are given up or reduced because of opioid use.
8. Recurrent opioid use in situations in which it is physically hazardous.
9. Continued opioid use despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance.
10. Tolerance, as defined by either of the following:
a. A need for markedly increased amounts of opioids to achieve intoxication or desired effect.
b. A markedly diminished effect with continued use of the same amount of an opiod. . . .
11. Withdrawal, as manifested by either of the following:
a. The characteristic opioid withdrawal syndrome (refer to Criteria A and B of the criteria set for opioid withdrawal, pp. 547-548).
b. Opioids (or a closely related substance) are taken to relieve or avoid withdrawal symptoms.
The trial court found Day had not presented testimony regarding many of the eleven factors, but that he had presented explicit or implicit testimony tending to show he met three or more of the eleven factors. The DSM V states that a person has a mild substance use disorder if only two or three factors are present, but the trial court nonetheless refused to find that Day had a substance use disorder because it believed such a finding was inappropriate for defendants who trafficked drugs for commercial gain instead of doing so to support their own addiction. The trial court sentenced Day to the agreed-upon five-years' imprisonment, after which he filed this appeal.
The fundamental issue here is the proper interpretation of KRS 218A.1412(3)(b)(2). Therefore, we set out the relevant portions of that statute in full:
a. Except as provided in subdivision b. of this subparagraph, where the trafficked substance was heroin and the defendant committed the offense while possessing more than one (1) items of paraphernalia, including but not limited to scales, ledgers, instruments and material to cut, package, or mix the final product, excess cash, multiple subscriber identity modules in excess of the number of communication devices possessed by the person at the time of arrest, or weapons, which given the totality of the circumstances indicate the trafficking to have been a commercial activity, shall not be released on parole until he or she has served at least fifty percent (50%) of the sentence imposed.
b. This subparagraph shall not apply to a person who has been determined by a court to have had a substance use disorder relating to a controlled substance at the time of the offense. "Substance use disorder" shall have the same meaning as in the current edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.
When interpreting statutes, we must first ascertain, and then effectuate, the General Assembly's intent. Edwards v. Harrod, 391 S.W.3d 755, 757 (Ky. 2013). In so doing, we utilize the statute's plain language. Id. We review a trial court's construction of a statute de novo. Boarman v. Grange Indem. Ins. Co., 437 S.W.3d 748, 751 (Ky.App. 2014). However, a trial court's decision about whether a defendant suffers from a substance use disorder necessarily involves weighing evidence and making credibility determinations, so our review of that determination is for clear error. Commonwealth v. Anderson, 934 S.W.2d 276, 278-79 (Ky. 1996) (applying the clearly erroneous standard to a trial court's analogous decision about whether a defendant was a victim of domestic violence, a determination which impacts a defendant's parole eligibility under KRS 439.3401(5)).
We begin by stressing that the substance use disorder question only becomes relevant if a court makes the necessary predicate finding that a defendant meets the 50% parole eligibility requirement of KRS 218A.1412(3)(b)(2)(a). The Commonwealth, as the party which presumably seeks to apply that enhanced parole eligibility requirement, bears the burden to show by a preponderance of the evidence that a defendant satisfies the criteria of KRS 218A.1412(3)(b)(2)(a). See Hinkle v. Commonwealth, 104 S.W.3d 778, 781 (Ky.App. 2002) (holding that generally "the proponent of a proposition bears the burden of proof"); Anderson, 934 S.W.2d at 278 (holding that the preponderance of the evidence standard applies to the determination of whether a defendant is a victim of domestic violence). The court, as the finder of fact, may believe or disbelieve any witness in whole or part. Id. If the trial court finds the Commonwealth has satisfied its initial burden the defendant must then show by a preponderance of the evidence that he/she suffers from a substance use disorder.
As our Supreme Court recognized, albeit in a different context, the DSM V "is designed for use by mental health professionals." Kentucky Retirement Systems v. Wimberly, 495 S.W.3d 141, 149 (Ky. 2016). Thus, the trial judges of this state—dedicated and knowledgeable though we know them to be—lack the requisite professional training and education required to interpret a mental health treatise. Therefore, a defendant who asserts he/she suffers from a substance use disorder under KRS 218A.1412(3)(b)(2)(b) must present expert testimony to assist the trial court in applying the defendant's history to the DSM V's criteria.
Although a defendant's term of imprisonment is not impacted by a determination of whether he/she has a substance use disorder, the real-world amount of time a defendant may be required to serve is impacted by that determination. Therefore, as a practical matter the substance use disorder issue impacts a defendant's punishment. Accordingly, though not at issue in this case, an indigent defendant would presumably be entitled to the services of an expert to show he/she had a qualifying substance use disorder.
Day did not present expert testimony, so the trial court did not have sufficient evidence to determine whether he had a substance use disorder. However, the trial court's interpretation of KRS 218A.1412 was otherwise fatally flawed.
As we understand it, the trial court believed the General Assembly could not have intended to permit persons who trafficked in drugs for commercial gain (i.e., not mainly to support their own drug habit) to accelerate their parole eligibility date due to being found to have had a substance use disorder. The effect of the trial court's ruling is that a defendant who trafficked in drugs as a "commercial activity" under KRS 218A.1412(3)(b)(2)(a) could never be found to have a substance use disorder. Or, in other words, commercial drug traffickers under KRS 218A.1412(3)(b)(2) would always have to serve at least 50% of their sentences before being eligible for parole.
The appellate courts of this Commonwealth have consistently held that courts must interpret statutes according to their plain meaning. In so doing, courts are not free to speculate what the General Assembly may have intended but did not express. Revenue Cabinet v. O'Daniel, 153 S.W.3d 815, 819 (Ky. 2005). "In other words, we assume that the [Legislature] meant exactly what it said, and said exactly what it meant." Id. (quotation marks and citation omitted).
Of course, courts are not required to implement the plain language of a statute if so doing would create an injustice or absurd result. Id. However, applying the plain language of KRS 218A.1412(3)(b)(2)(b) to defendants who trafficked in drugs as a commercial activity would not create an injustice or lead to absurd results. --------
KRS 218A.1412 contains no language whatsoever to support the trial court's interpretation. Instead, KRS 218A.1412(3)(b)(2)(b) simply states that the otherwise applicable 50% parole eligibility rule "shall not apply to a person who has been determined by a court to have had a substance use disorder relating to a controlled substance at the time of the offense." The trial court erred by grafting a limiting exception of its own creation onto the statute.
A reasonable argument could be made that large-scale drug traffickers (i.e., those who trafficked for commercial activity) should be required to serve at least 50% of their sentence before becoming eligible for parole, regardless of whether they also are addicts. However, the General Assembly chose not to add language effectuating that public policy. The judiciary cannot interpret the law based upon its view of the wisdom of the General Assembly's enactments, Delahanty v. Commonwealth, 558 S.W.3d 489, 509 (Ky.App. 2018), so we must interpret the statute as plainly written—any defendant found to be suffering from a substance use disorder, as that term is defined in KRS 218A.1412(3)(b)(2)(b), is exempt from the otherwise applicable 50% parole eligibility rule of KRS 218A.1412(3)(b)(2)(a).
We empathize with the trial court's quandary in grappling as a matter of first impression with a remarkably maladroit statute. However, for the reasons set forth herein, the judgment of the Jefferson Circuit Court is vacated and remanded for further proceedings consistent with this opinion.
L. THOMPSON, JUDGE, CONCURS.
HENRY, SPECIAL JUDGE, CONCURS AND IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION. HENRY, SPECIAL JUDGE, CONCURRING IN PART AND DISSENTING IN PART: I concur in the majority's determinations that the DSM V "is designed for use by mental health professionals" and that trial judges lack the requisite professional training and education required to interpret a mental health treatise. Accordingly, defendants attempting to benefit from the substance use disorder exemption set out in KRS 218A.1412(3)(b)(2)(b) must present expert testimony to assist trial courts in applying the DSM V's criteria to their substance abuse history. I also agree that because Day failed to present expert testimony, the trial court lacked sufficient evidence for an appropriate determination of whether Day had proven a substance use disorder at the time of his offense. In my view, that determination is dispositive of Day's entitlement to the exemption and the judgment of the trial court must be affirmed.
I do not agree with the majority that the trial court's decision was otherwise so fatally flawed as to require that it be vacated and remanded for additional proceedings. Despite its stated reservations about the intent of the General Assembly concerning application of the exemption to persons trafficking for commercial gain and the inability of courts to properly assess the factors set out in a manual intended for use by medical professionals, the trial court nevertheless afforded Day the opportunity to demonstrate that he was entitled to application of the exemption and patiently attempted to apply the eleven-prong definition of substance use disorder set out in the DSM V. In ultimately denying Day's request, the trial court stated that he had failed to prove that he had a substance use disorder at the time of the offense and that his credibility had been negatively impacted by his own testimony.
Had the trial court denied Day's claim on the basis that persons trafficking for commercial gain were disqualified from application of the exemption, its analysis would have stopped at that point and there would have been no necessity to attempt to apply the factors set out in the DSM V. Thus, in my view, the trial court's decision was based entirely upon the failure to prove satisfaction of the DSM V factors despite any dicta it may have expressed concerning legislative intent where commercial trafficking has been proven.
As was the case in Wimberly, supra, reliance upon the DSM V factors "absent an opinion from a medical expert linking the treatise to objective medical evidence" is misplaced. 495 S.W.3d at 149. Because Day bore the burden of proving entitlement to the exemption, his failure to offer expert proof as to the DSM V factors required by the statute was fatal to his claim. Even if the trial court's denial of Day's claim had been based upon an improper interpretation of the statutory requirements, in my opinion its judgment should nevertheless be upheld. "[I]t is well-settled that an appellate court may affirm a lower court for any reason supported by the record." McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009). Thus, I would affirm the decision of the trial court based upon Day's failure to prove entitlement to the exemption. BRIEF FOR APPELLANT: Ryan Vantrease
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky