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
