Commonwealth v. Gamble, 2013-SC-000141, rendered 2/19/15, to be published, reversing.
A defendant can have his sentence enhanced as a persistent felony offender (PFO) when his underlying felony is second-degree trafficking in a controlled substance.
The second-degree trafficking statue states that, for anyone who traffics in any quantity of a controlled substance specified in the statute in an amount less than the amounts specified in the statute, “except that KRS Chapter 532 to the contrary notwithstanding, the maximum sentence shall be no greater than three (3) years.” (See KRS 218A.1413(2)(b)(1).) The Court found that “except that KRS Chapter 532 to the contrary notwithstanding” refers expressly to the Class D felony categorization and penalty range espoused in KRS 532.060, not to the portion of Chapter 532 that deals with PFO enhancement. The Court also said that, because the PFO statute expressly prohibits the enhancement of a first-degree possession of a controlled substance sentence (see KRS 532.080(8)) but is silent on second-degree trafficking, the General Assembly demonstrated that second-degree trafficking is eligible for PFO enhancement.
The Court concluded by stating that in the event the General Assembly intended on preventing a second-degree trafficking in a controlled substance conviction from being enhanced by the PFO statute, it can expressly amend the statute to better reflect its intent in the future.
Contributed by Stephen Buck