Errick Duncan v. Com., Kentucky Court of Appeals, Not to be Published (1/13/17)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been superseded by virtue of passage of HB 463.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.
