Opinion
NO. 2018-CA-000285-MR
07-05-2019
JACK MORGAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE JAMES T. JAMESON, JUDGE
ACTION NO. 16-CR-00268 OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES. JONES, JUDGE: Jack Morgan appeals from a judgment and sentence entered following his guilty plea. He argues he was improperly charged with second-degree cruelty to animals for his involvement in cockfighting activity. For the reasons more fully explained below, we affirm.
I. BACKGROUND
On February 6, 2016, Morgan hosted cockfighting events on his property in Lynn Grove, Kentucky. He was subsequently charged with second-degree cruelty to animals in the Calloway District Court. Morgan moved to dismiss the charge, arguing spectating or otherwise engaging in cockfighting activity does not constitute cruelty to animals because birds are exempt from the statutory definition of an animal. The district court denied Morgan's motion.
Morgan's case was not resolved in the district court. On December 6, 2016, Morgan was indicted by a Calloway Circuit Court grand jury for first-degree promoting gambling, conspiracy to promote gambling, engaging in organized crime, second-degree cruelty to animals, and possession of gambling records for his involvement in cockfighting activity on February 6, 2016. On January 1, 2018, Morgan entered a conditional Alford plea to second-degree promoting gambling and second-degree cruelty to animals. Morgan's plea was conditioned on his ability to appeal whether he was properly charged with second-degree cruelty to animals for his conduct. This appeal followed.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). An Alford plea "permits a conviction without requiring an admission of guilt and while permitting a protestation of innocence." Wilfong v. Commonwealth, 175 S.W.3d 84, 103 (Ky. App. 2004). "The entry of a guilty plea under the Alford doctrine carries the same consequences as a standard plea of guilty." Id. at 102 (citation and internal quotation marks omitted).
II. STANDARD OF REVIEW
"The trial court's . . . construction of statutes is . . . entitled to no deference on appeal because statutory construction is a matter of law subject to a de novo standard of review." Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007). "The 'cardinal rule of statutory construction' is to ascertain and give effect to the General Assembly's intent." Kentucky Board of Medical Licensure v. Strauss, 558 S.W.3d 443, 448 (Ky. 2018) (quoting MPM Fin. Grp., Inc. v. Morton, 289 S.W.3d 193, 197 (Ky. 2009)).
III. ANALYSIS
The sole issue on appeal is whether Morgan could be prosecuted for second-degree cruelty to animals for having engaged in cockfighting activities. The Commonwealth argues the issue was not properly preserved below. However, Morgan filed a notice that his guilty plea was conditioned on his ability to appeal the issue of whether he could be charged with cruelty to animals. The Commonwealth specifically noted in its recommendations on a plea agreement that it did not "object to . . . [the] conditional plea allowing Mr. Morgan to appeal [the] District Court ruling." Thus, Morgan's issue is preserved because the trial court and the Commonwealth had notice, and the Commonwealth specifically waived any objection to Morgan's ability to appeal the issue. See Dickerson v. Commonwealth, 278 S.W.3d 145, 149 (Ky. 2009).
We now turn to the merits of Morgan's argument. Under KRS 525.130(1):
Kentucky Revised Statutes.
A person is guilty of cruelty to animals in the second degree when except as authorized by law he intentionally or wantonly:KRS 446.010(2) defines "animal" as "every warm-blooded living creature except a human being."
(a) Subjects any animal to or causes cruel or injurious mistreatment through abandonment, participates other than as provided in KRS 525.125 in causing it to fight for pleasure or profit (including, but not limited to being a spectator or vendor at an event where a four (4) legged animal is caused to fight for pleasure or profit).
In Munn v. Commonwealth, 889 S.W.2d 49 (Ky. App. 1994), this Court held the defendant could be charged with second-degree cruelty to animals for engaging in cockfighting activities because birds are included in the statutory definition of animal. Id. at 51. Similar to the appellant's argument in Munn, Morgan argues the legislature intended to exclude birds from the definition of animal based on KRS 525.125 Legislative Research Commission Note (3-30-90), which provides:
The definition of "animal" contained in KRS 446.010(2) does not reflect the amendatory language contained in Senate Bill 263 of the 1980 Regular Session of the Kentucky General Assembly because the 1980 Senate Journal indicates that Senate Bill 263 was vetoed by
Governor John Y. Brown, Jr., on April 9, 1980, and recommitted by action of the Senate to its Committee on Appropriations and Revenue on April 14, 1980. Senate Bill 263 proposed to change KRS 446.010(2) to read as follows: "'Animal' includes every warmblooded living creature except birds and human beings[."] By a letter dated March 16, 1990, the Attorney General has informally opined that Governor Brown's veto of Senate Bill 263 was not timely; that letter has exhibits showing that the bill was received by the Governor on March 28, 1980, and that his veto was received by the Senate Clerk on April 10, 1980.
We are required to rely upon "text contained in the official version of the Kentucky Revised Statutes." KRS 7.138. Nearly forty years have passed, and our legislature has not amended the statutory definition of animal to specifically exempt birds. As this Court noted in Munn, the General Assembly's failure to amend the definition is indicative of its intent to include birds in the definition of animal. Thus, it was proper for Morgan to be prosecuted for second-degree cruelty to animals.
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Calloway Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Brandon Neil Jewell
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky