Day v. Commonwealth

MICHAEL DAY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2017-CA-000722-MR

Commonwealth of Kentucky Court of Appeals

APRIL 26, 2019

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE A.C. MCKAY CHAUVIN, JUDGE

ACTION NO. 15-CR-002791

OPINION

VACATING AND REMANDING

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BEFORE: K. THOMPSON AND L. THOMPSON, JUDGES; HENRY, SPECIAL JUDGE.¹

THOMPSON, K., JUDGE: Michael Day appeals from a final judgment of the Jefferson Circuit Court sentencing him pursuant to a plea agreement to five-years' imprisonment for various offenses, including trafficking heroin. Day's loneargument is that the trial court erred by concluding in the final judgment that Day did not have a "substance use disorder." That finding is crucial because under Kentucky Revised Statutes (KRS) 218A.1412(3)(b)(2), if Day were found to have had a substance use disorder at the time of his offenses, he would presumably be eligible for parole after serving 20% of his sentence² but, if he were found to not have a substance use disorder, he would have to serve 50% of his sentence to be parole eligible.

KRS 218A.1412(3)(b)(2)(b) states that '"[s]ubstance use disorder' shall have the same meaning as in the current edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders [DSM V]." The issue of how a court determines whether a defendant has a substance use disorder under KRS 218A.1412 is a matter of first impression.

The relevant facts here are simple and largely uncontested. Day was indicted for trafficking in two or more grams of heroin while in possession of a firearm. Pursuant to a plea agreement, Day pleaded guilty to several charges and the trafficking in heroin while in possession of a firearm charge was amended to trafficking in less than two grams of heroin. The parties agreed to recommend acumulative five-year sentence, and Day was permitted to argue that he had a substance use disorder.

Before imposing sentence, the court held a hearing to determine whether Day had a substance use disorder. Day was the only witness. Day testified he was addicted to crack cocaine for about twenty-five years but had overcome that addiction prior to being introduced to heroin. Day became addicted to heroin, testifying he eventually used about a gram daily (which he said cost about $200). Day began to sell heroin to help finance his own habit, though he also maintained legitimate employment.

The trial court quickly found without objection that Day was a drug trafficker for commercial gain, and thus met the 50% parole eligibility requirement of KRS 218A.1412(3)(b)(2)(a). After opining that Day's credibility was negatively impacted by his attempt to minimize the extent of his trafficking, the court patiently tried to apply the eleven-prong DSM V definition of substance use disorder:

1. Opioids are often taken in larger amounts or over a longer period than was intended.

2. There is a persistent desire or unsuccessful efforts to cut down or control opioid use.

3. A great deal of time is spent in activities necessary to obtain the opioid, use the opioid, or recover from its effects.

4. Craving, or a strong desire or urge to use opioids.

5. Recurrent opioid use resulting in a failure to fulfill major role obligations at work, school, or home.

6. Continued opiod use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of opioids.

7. Important social, occupational, or recreational activities are given up or reduced because of opioid use.

8. Recurrent opioid use in situations in which it is physically hazardous.

9. Continued opioid use despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance.

10. Tolerance, as defined by either of the following:

a. A need for markedly increased amounts of opioids to achieve intoxication or desired effect.

b. A markedly diminished effect with continued use of the same amount of an opiod. . . .

11. Withdrawal, as manifested by either of the following:

a. The characteristic opioid withdrawal syndrome (refer to Criteria A and B of the criteria set for opioid withdrawal, pp. 547-548).

b. Opioids (or a closely related substance) are taken to relieve or avoid withdrawal symptoms.

The trial court found Day had not presented testimony regarding many of the eleven factors, but that he had presented explicit or implicit testimony tending to show he met three or more of the eleven factors. The DSM V states thata person has a mild substance use disorder if only two or three factors are present, but the trial court nonetheless refused to find that Day had a substance use disorder because it believed such a finding was inappropriate for defendants who trafficked drugs for commercial gain instead of doing so to support their own addiction. The trial court sentenced Day to the agreed-upon five-years' imprisonment, after which he filed this appeal.

The fundamental issue here is the proper interpretation of KRS 218A.1412(3)(b)(2). Therefore, we set out the relevant portions of that statute in full:

a. Except as provided in subdivision b. of this subparagraph, where the trafficked substance was heroin and the defendant committed the offense while possessing more than one (1) items of paraphernalia, including but not limited to scales, ledgers, instruments and material to cut, package, or mix the final product, excess cash, multiple subscriber identity modules in excess of the number of communication devices possessed by the person at the time of arrest, or weapons, which given the totality of the circumstances indicate the trafficking to have been a commercial activity, shall not be released on parole until he or she has served at least fifty percent (50%) of the sentence imposed.

b. This subparagraph shall not apply to a person who has been determined by a court to have had a substance use disorder relating to a controlled substance at the time of the offense. "Substance use disorder" shall have the same meaning as in the current edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.

When interpreting statutes, we must first ascertain, and then effectuate, the General Assembly's intent. Edwards v. Harrod, 391 S.W.3d 755, 757 (Ky. 2013). In so doing, we utilize the statute's plain language. Id. We review a trial court's construction of a statute de novo. Boarman v. Grange Indem. Ins. Co., 437 S.W.3d 748, 751 (Ky.App. 2014). However, a trial court's decision about whether a defendant suffers from a substance use disorder necessarily involves weighing evidence and making credibility determinations, so our review of that determination is for clear error. Commonwealth v. Anderson, 934 S.W.2d 276, 278-79 (Ky. 1996) (applying the clearly erroneous standard to a trial court's analogous decision about whether a defendant was a victim of domestic violence, a determination which impacts a defendant's parole eligibility under KRS 439.3401(5)).

We begin by stressing that the substance use disorder question only becomes relevant if a court makes the necessary predicate finding that a defendant meets the 50% parole eligibility requirement of KRS 218A.1412(3)(b)(2)(a). The Commonwealth, as the party which presumably seeks to apply that enhanced parole eligibility requirement, bears the burden to show by a preponderance of the evidence that a defendant satisfies the criteria of KRS 218A.1412(3)(b)(2)(a). See Hinkle v. Commonwealth, 104 S.W.3d 778, 781 (Ky.App. 2002) (holding that generally "the proponent of a proposition bears the burden of proof"); Anderson,934 S.W.2d at 278 (holding that the preponderance of the evidence standard applies to the determination of whether a defendant is a victim of domestic violence). The court, as the finder of fact, may believe or disbelieve any witness in whole or part. Id. If the trial court finds the Commonwealth has satisfied its initial burden the defendant must then show by a preponderance of the evidence that he/she suffers from a substance use disorder.

As our Supreme Court recognized, albeit in a different context, the DSM V "is designed for use by mental health professionals." Kentucky Retirement Systems v. Wimberly, 495 S.W.3d 141, 149 (Ky. 2016). Thus, the trial judges of this state—dedicated and knowledgeable though we know them to be—lack the requisite professional training and education required to interpret a mental health treatise. Therefore, a defendant who asserts he/she suffers from a substance use disorder under KRS 218A.1412(3)(b)(2)(b) must present expert testimony to assist the trial court in applying the defendant's history to the DSM V's criteria.³

Day did not present expert testimony, so the trial court did not have sufficient evidence to determine whether he had a substance use disorder.However, the trial court's interpretation of KRS 218A.1412 was otherwise fatally flawed.

As we understand it, the trial court believed the General Assembly could not have intended to permit persons who trafficked in drugs for commercial gain (i.e., not mainly to support their own drug habit) to accelerate their parole eligibility date due to being found to have had a substance use disorder. The effect of the trial court's ruling is that a defendant who trafficked in drugs as a "commercial activity" under KRS 218A.1412(3)(b)(2)(a) could never be found to have a substance use disorder. Or, in other words, commercial drug traffickers under KRS 218A.1412(3)(b)(2) would always have to serve at least 50% of their sentences before being eligible for parole.

The appellate courts of this Commonwealth have consistently held that courts must interpret statutes according to their plain meaning. In so doing, courts are not free to speculate what the General Assembly may have intended but did not express. Revenue Cabinet v. O'Daniel, 153 S.W.3d 815, 819 (Ky. 2005). "In other words, we assume that...