Tuesday, January 31, 2017

KYCOA - Duncan - Illegal double enhancement

Errick Duncan v. Com., Kentucky Court of Appeals, Not to be Published (1/13/17)

The trial court subjected Mr. Duncan to an illegal double enhancement when he was convicted of being a First Persistent Felony Offender First Degree Trafficking in a controlled substance, second offense. Accordingly, Mr. Duncan’s PFO conviction was vacated by the court. 

Notably, Morrow v, Commonwealth, 77 S.W.3d 558 (Ky. 2002) has been superseded by virtue of passage of HB 463. One of the changes is that under KRS 532.080(10)(a), PFO status is not applicable to “a person convicted of a criminal offense if the penalty for that offense was increased from a misdemeanor to a felony, or from a lower felony classification to a higher felony classification,” i.e. one cannot be convicted for a second offense and subjected to a PFO enhancement. 

Mr. Duncan was represented by Erin Hoffman Yang on appeal and Adam Sanders at trial.