IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, _ UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION ·BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: NOVEMBER 2, 2017 NOT TO BE PUBLISHED

2017-SC-000110-DG

COMMONWEALTH OF"KENTUCKY APPELLANT

ON REVIEW FROM COURT OF APPEALS v. CASE NO. 2015-CA-001916-MR MONTGOMERY CIRCUIT COURT NO. lS~CR-00079

MANDY HUGHES APPELLEE

MEMORANDUM OPINION OF THE COURT

REVERSING

Mandy Hughes sold to a confidential i.Ilformant ten capsules containing

heroin, the aggregate weight of which amounted to less than two grams of

heroin. She was indicted for trafficking in a controlled substance under

Kentucky Revised Statute (KRS) 218A.1412(1)(c), 1 a statute creating an offense

iEffective June 29, 2017, the legislature amended KRS 218A.1412 to now state the following: (1) A person is guilty of trafficki,ng in a controlled substance in the first degree when he or she knowingly and unlawfully traffics in:

(b) Two (2) grams or more of methamphetamine;

(d) Any quantity of heroin ...

As a result of this legislative amendment, the conflict at the center of this case, and any future case with this issue, no longer exists because possessing any quantity of punishable as a Class C felony with five fo ten years' imprisonment for

trafficking two or more grams or ten or more dosage units of a Schedule I

Controlled Substance, which classification includes heroin. Hughes moved the I • •

trial court to amerid the indictment. She argued that she was ~mproperly

charged, the proper charge being under KRS 218A.1412(1)(e), a Class-D felony

punishable by one to five years'. imprisonment for trafficking in less than two

grams of a Schedule I Controlled Substance.

The trial court denied Hughes's motion, concluding that the

Commonwealth exercised its discretion in determining under which section of /

KRS 218A.1412 to prosecute Hughes. Hughes then entered a conditional guilty

plea to the charge in the indictment and appealed the trial court's ruling to the

Court of Appeals. The Court of Appeals reversed the ruling of the trial court

and held that . a statutory conflict existed within KRS 21 BA.1412 such that . '

Hughes, having trafficked in less than two grams of heroin, could only be

charged with a Class D felony under KRS 218A.1412(1)(e). We granted

discretionary review, reverse the opinion of the Court of Appeals, and reinstate )

the trial court's judgment.

I. BACKGROUND At all times relevant to this case, KRS 218A.1412 stated the following

relevant provisions:·

heroin whatsoever ~r possessing ten or more dosage units of heroin both result ill a Class C felony conviction instead of the Class C and D discrepancy Hughes alleges under the version of KRS 21.8A.1412 under which she was prosecuted.

2 (1) A person is guilty of trafficking in a controlled substance in the first degree when he" or she knowingly and unlawfully traffics in:

(b) Two (2) grams or more ofheroin ... ;

(c) Ten (10) or more dosage units of a controlled substance that is classified _in Schedules I or II and is a narcotic drug, or a J controlled substance analogue; -

(e) Any quantity of a controlled substance specifie in paragraph (a), (b), or (c) of this subsection in an amount iess than the amounts specified in those paragraphs. (

(3) (a) Any person who violates the provisions otsubsection (l)(a), (b), (c), or (d) qf this section shall be guilty of a Class C felony for . the first offense and a Class B felony for the second or subseqpent offense. -. ·

(b) Any person.who Violates the provision of subsection (l)(e) of this· section: 1. Shall be guilty of a Class D felony.for the first offense. · '

KRS 218A.010(12) defines dosage unit as a "single pill, capsule, ampule, liquid,

or other form of administration available as a single unit[.]"2 Heroin is a

Schedule I Controlled Substance. 3 KRS 532.060(2)(c) imposes a five to ten-year

2 (emphasis added). a KRS 2 lSA.050, Kentucky's enumeration of Schedule I Controlled Substances, was repealed by the legislature· during the pendency of this case. The Court of Appeals relied on this statute in finding heroin to be a Schedule I Controlled substance. KRS 218A.020(3)(a), currently in effect, states, "If any substance is designated or rescheduled as a controlled substance under the federal Controlled Substances Act, the dnig shall-be considered to be controlled at the state level in the same numerical - schedule corresponding tO the federal schedule." 21 U.S.C. § 812 Schedule I(b)(lO), a section of the federal Controlled Substances Act, lists heroin as a Schedule I - Controlled Substance. So, regardless of which statute applies, Kentucky identifies heroin as a Schedule I Controlled Substance.

3 prison sentence for Class C felonies, while KRS 532.060(d) imposes a one to

five-year prison sentence for Class D felonies.

In sum, the statutes listed above frame the sole issue in this case:

Whether an individual selling ten capsules-but less than two grams-of heroin

should be charged under KRS 218A.1412(1)(c),\a Class C felony and

punishable by five to ten years' imprisonment, or under KRS 218A.1412(1)(e), a

Class D felony and punishable by one to five years' imprisonment.

II. ANALYSIS

"Insofar, as this case requires us to construe statutory provisions, we do

so de novo.'"4 We agree with the Commonwealth that no ambiguity in the J i . relevant version of KRS 218A.1412 i exists. The version of KRS " 218A.1412 under

review today simply provided prosecutors with two different avem.i.es under

which to charge potential offenders. The statutory sections do not conflict;

rather, they provide options for the Commonwealth to combat the use and

·spread of heroin in Keptucky. - In finding this to be the case, we hi.ghlight the rules of statutory

construction used to co~e to this conclusion. "The primary purpose of ju~icial

construction is to carry:out the intent of the legislature. In construing a . . statute, the court must consider 'the intended purpose of the statute and the

4Commonwealth v. Morseman, 379 S.W.3d 144, 148 (Ky. 2012) (citing Bob Hook Chevroletlsuzu, Inc. v. Commonwealth Transp. Cabinet, 983 S.W.2d 488, 490-91 (Ky. 1998)).

4 (

mischief intended to be remedied. "'5 "The first principle of statutory

construction is to use the plain meaning of the words used in the statute."6 "A

court may not interpret a statute at variance with its stated language."7-"We

presume that the General Assembly intended for the statute to be construed as " a whole, for all of its parts to have meaning, and for it to harmonize with ·

related statutes." 8 "[S]tatutes must be given a literal interpretation unless they

are ambiguous and if the words are not ambiguous, no statutory construction

is required."9

In addition to these statutory canons, we recognize that "so long as the

prosecutor has probable cause to believe that the accused committed an

offense defined by statute, the decision whether or not to prosecute, and what

charge to file or bring before a grand jury, generally rests entirely in his

discretion." 10

The reading of the relevant version of KRS 21 BA.1412 is simple: If a

situation arises where an individual is trafficking in less than two grams of

heroin, but more than ten dosage units, the Commonwealth can use KRS

-218A.1412(l){c) or (e) to charge the individual. The language of the statute is

s Monumental Life Ins. Co. v. Department of Revenue, 294 S.W.3d LO, 19 (Ky. App. 2008). 6 Monumental Life Insurance, 294 S.W.3d at 19 (citing Revenue Cabin~t v. O'Daniel, 153 S.W.3d 815 (Ky. 2005)). ' 1 Smith.Kline Beecham Corp. v. Revenue Cabinet, 40 S.W.3d 883, 885 (Ky. App. 2001). s Shawnee Telecom Res., Inc. v:· Brown, 354 S.W.3d 542, 551 (Ky. 2011). 9 Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002). io Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

\ 5 clear, and the language of the statute effectuates the intent of the legislature-

the spread of heroin is an epidemic, a "mischief," plaguing this state, and the

relevant version of KRS 218A. l 412 gave the Commonwealth options for battling \

this plague. In a situation like Hughes's, where a defendant trafficked in ten

dosage units, but less than two grams, of heroin, the plain and literal meaning

of KRS 218A. l 412 afforded the prosecutor the discretion to seek an indictment

,under (l)(c) or (l)(e), thereby imposing a Cfass C or D felony punishment. This

is not conflict or ambiguity-is permissible prosecutorial discretion.

Because the statutes do not conflict and are not ambiguous, the Court of

Appeals incorrectly concluded that because "the specific provision takes

precedence over the general," 11 and because KRS 218A.1412(1)(b) specifically

enumerates, "heroin" when making punishable trafficking in two or more grams

of heroin, this meant that KRS 218A.1412(1)(e) always applied in a situation

l~ke the factual circumstances of this case. The statutory canons used by the

Court of Appeals only apply in circumstances of statutory conflict or ambiguity.

As we have explained, the now-superseded version of KRS 218A.1412 simply

p~ovided alternative avenues, options, for the Commonwealth to battle the

spread of heroin, not conflicting statutes showing contrary legislative intent.

In addition, the Court of Appeals incorrectly resorted to a common

understanding of dosage unit, instead of applying the statute's enumerated

definition 'Of dosage unit. "When there is no specific statutory definition, words

11 Commonwealth v. Phon, 17 S.W.3d 106, 107 (Ky. 2000).

6

1 of a statute shall be construed according to their common and approved

usage." 12 "An unambiguous statute is to be applied without resort to any

outside aids." 13 Taken together, these rules of law provide that a statute's

enumeration of a term, if present, takes precedence over the common usage of

~a term. The Court of Appeais incorrectly resorted to a common-usage definition

of heroin_ when concluding that the legislature did not intend for heroin to be (

measured in prescribed amou!lts, but rather by bulk weight. KRS 218A.010(12)

clearly defines dosage unit as a "single pill, capsule, ampule, liquid, . . or other

form of administration available as a single unit[.]" 14 In other words, ten

capsules of heroin . equates to ten dosage units of heroin under the language . of

the statute. KRS 218A.010(12) is unambiguous in this regard, so we do not

resort to the common usage of dosage unit.

We find applicable to the present case the Court ofAppeals' statement in

Commonwealth v. McKinney. is There, the Court of Appeals stated that if two

penalties apply to the same violation, a statutory conflict exists, and rules of

stattitory construction must be applied to resolve the conflict. 16 But two (

different violations in KRS 218A.1412 exist under the facts of the present

case-trafficking heroin by ten or more dosage units and trafficking heroin by

12Kentucky Unemployment Ins. Co. v. Jones, 809 S.W.2d 715, 716 (Ky. App. 1991) (citing Claude N. Fannin Wholesale Co. v. Thacker, 661S.W.2d477 (Ky. App. 1983)). I 13 Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002). 14 (emphasis added). 15 594 S.W.2d 884 (Ky. App. 1979). 16 McKinney, 594 S.W.2d at 887.

7 less tha.n two grams~ Trafficking heroin by dosage unit requires the heroin to \

be packaged inside a "single pill, capsule, ampule, liquid, or other form of

administration available as a single unit" 17, in addition to a requirement that

ten of these ' dosage units exist, .which . trafficking less than two grams of heroin

does not. Similarly, trafficking less than two grams of heroin requires some

quantity of heroin to exist, while this fact alone would not satisfy a conviction

of trafficking ten or more dosage units. Because the crimes a'.re distinct, no

conflict exists.

Lastly, while the rule oflenity requires any ambiguity_ in a statute to be

resolved in favor of a criminal defendant, is because we find no ambiguity in the ' relevant version of KRS 218A.1412, the rule oflenity does not apply in this

case.

III. CONCLUSION

We reverse the Court of Appeals opinion and hold that the version of KRS

218A.1412 as it existed at all times relevaht to this case afforded the

Commonwealth the ability to seek indictment of individuals under either

subsection (l)(c) or (l)(e) when either statute applied to the circumstances of

the case. Therefore, no error occurred when the trial court denied Hughes's

motion to amend the indictment. The judgment of the trial court is :reinstated.

All sitting., All concur.

17 KRS 218A.020(12) (emphasis added). 18 White v. Comfnonwealth; 178 S.W.3d 470, 483-84 (Ky. 2005).

8 COUNSEL FOR APPELLEE:

Shannon Renee Dupree Assistant Public Advocate

COUNSEL FOR APPELLANT: Andy Beshear Attorney General of Kentucky

Emily Lucas Attorney General's Office

)

9