Applegate v. Commonwealth

• Citation: 577 S.W.3d 83
• Decision Date: 14 September 2018
• Docket Number: 2016-CA-001686-MR,NO. 2016-CA-001293-MR,2016-CA-001303-MR,2016-CA-001304-MR,2016-CA-001293-MR
• Parties: Christopher APPLEGATE, Appellant v. COMMONWEALTH of Kentucky, Appellee and Christopher Applegate, Appellant v. Commonwealth of Kentucky, Appellee and Christopher Applegate, Appellant v. Commonwealth of Kentucky, Appellee and Christopher Applegate, Appellant v. Commonwealth of Kentucky, Appellee
• Court: Court of Appeals of Kentucky

577 S.W.3d 83

Christopher APPLEGATE, Appellant

v.COMMONWEALTH of Kentucky, AppelleeandChristopher Applegate, Appellant

v.Commonwealth of Kentucky, AppelleeandChristopher Applegate, Appellant

v.Commonwealth of Kentucky, AppelleeandChristopher Applegate, Appellant

v.Commonwealth of Kentucky, Appellee

NO. 2016-CA-001293-MR

2016-CA-001303-MR

2016-CA-001304-MR

2016-CA-001686-MR

Court of Appeals of Kentucky.

SEPTEMBER 14, 2018; 10:00 A.M.

Discretionary Review Denied by Supreme Court June 5, 2019

BRIEFS FOR APPELLANT: Robert C. Yang, Assistant Public Advocate, Frankfort, Kentucky.

BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, James Havey, Assistant Attorney General, Frankfort, Kentucky.

BEFORE: CLAYTON, CHIEF JUDGE; JOHNSON AND NICKELL, JUDGES.

OPINION

NICKELL, JUDGE:

In these consolidated appeals, Christopher Applegate challenges the Campbell Circuit Court’s denial of a suppression motion, denial of a motion to withdraw his guilty pleas, recommendation of special conditions of parole, imposition of court costs, and imposition of a partial public defender fee. Applegate also challenges his conviction on a charge of possession of a handgun by a convicted felon. Following a careful review, we affirm in part and reverse in part.

On May 12, 2014, police received a report of a pursuit between two cars with one of the drivers being armed with a gun. On arrival in the area, Campbell County Police Officer Thomas Lakes observed a vehicle matching the description in the report. Officer Lakes conducted a traffic stop of the vehicle, approached the car, and asked the driver—later identified as Applegate—to exit the vehicle. Once he explained the reason for the stop, Officer Lakes inquired whether Applegate had any guns. Applegate indicated he did not; volunteering he had recently been released from prison and wanted no trouble with the police. Officer Lakes subsequently learned Applegate had an outstanding warrant for failure to register as a sex offender.

Backup officers arrived on-scene, one of whom observed a handgun in Applegate’s car in plain view in a seat pocket within reach of the driver. On top of the console between the front seats was a quantity of methamphetamine. Applegate was arrested and charged with trafficking in methamphetamine. Officers located additional drugs, scales and packaging material, as well as two cellular telephones, a tablet computer and a digital camera in the vehicle.

Believing the electronic devices might contain information pertinent to his drug investigation, Officer Lakes prepared an affidavit for a search warrant for the two phones and the tablet. He indicated he was looking for photos, videos or communications related to guns, drug activity, co-conspirators, drug network activity and other associated information. After the warrant was issued, the devices were delivered to Bureau of Alcohol, Tobacco and Firearms Enforcement Agent Michael Oergel, a digital investigator, for forensic examination, analysis and recovery of data. Both phones and the tablet were equipped with either a SIM or MicroSD memory card to expand the memory capabilities of the devices; the presence of the expanded memory cards could not be readily discerned by a user.

During his examination, Agent Oergel found what he suspected to be photographs of a methamphetamine cooking operation. Although he had not been looking for evidence of other crimes, he could not tell from the file names what sort of images he would find upon opening each file. Several of the files contained photos and videos he immediately recognized as depicting child pornography. Agent Oergel returned the phones and tablet to Officer Lakes along with a narrative report of the contents of his findings.

Based on the finding of child pornography, and Applegate’s prior conviction for possessing such illicit material, a second search warrant was procured for the digital camera that was in Applegate’s possession on the day of his arrest. No evidence of illegal activity was recovered.

A third search warrant was procured to conduct a further, more in-depth examination and analysis of all the devices. This analysis revealed a large amount of data, including text messages relating to drug trafficking and additional photos and videos depicting child pornography.

Applegate was indicted for firearm-enhanced trafficking in methamphetamine¹ and being a persistent felony offender in the second degree (PFO II).² He was separately indicted for possession of a handgun by a convicted felon.³ In a third indictment, he was charged with seven counts of possessing material portraying a sexual performance by a minor⁴ and being a PFO II.

Prior to trial, Applegate moved to suppress all evidence seized as a result of the search warrants, challenging their validity and arguing investigators exceeded the scope of the warrants. At the conclusion of a hearing on the matter, the trial court raised an issue related to sufficiency of the affidavit supporting issuance of the initial search warrant. After permitting the parties to brief the matter and receiving multiple memoranda on the issue, the trial court convened a second hearing to take testimony from Officer Lakes and former District Court Judge Gregory Popovich, the issuing magistrate of the challenged search warrant. The trial court denied the suppression motion in a lengthy and comprehensive order entered on July 1, 2016.

Applegate subsequently entered an Alford⁵ conditional plea on the charges of possessing material portraying a sexual performance by a minor, reserving the right to appeal from the trial court’s denial of his suppression motion.⁶ In that case, the PFO II charge was dismissed, and the Commonwealth recommended a sentence of thirteen years' imprisonment. Applegate entered an unconditional plea on the trafficking charge with the PFO II charge being dismissed and the Commonwealth recommending an eight-year sentence. He also entered an unconditional plea on the charge of possession of a firearm by a convicted felon, receiving a recommended sentence of five years on that charge. The eight- and five-year sentences were to run consecutively to each other and concurrently with the thirteen-year sentence, for a total aggregate sentence of thirteen years' imprisonment. A subsequent motion to withdraw his guilty pleas on the trafficking and possession of a handgun charges was denied. These consolidated appeals followed.

Applegate raises multiple contentions of error in seeking relief from his convictions. First, he launches a multi-faceted attack on the trial court’s denial of his suppression motion. Next, he contends he was not a convicted felon and therefore, could not legally be found guilty of the charge of being a felon in possession of a handgun. Third, he contends the trial court should have granted his motion to withdraw his guilty pleas. Finally, he argues the trial court made three errors in his sentencing when it sought to impose special conditions on his parole, ordered him to pay court costs, and levied public defender fees. We address these issues in reverse order.

The Commonwealth concedes error as to the sentencing issues. We have reviewed the record and agree the trial court improperly attempted to impose special conditions on Applegate’s parole. Chames v. Commonwealth , 405 S.W.3d 519 (Ky. App. 2012). We likewise agree the trial court erred in ordering Applegate to pay court costs in installments beginning sixty days after his release, as these necessarily could not be paid within one year of the date of sentencing as required by KRS 23A.205(3). Further, we hold the trial court erred in assessing a public defender fee as it did not conduct a nonadversarial hearing to determine whether Applegate had the present ability to pay for his legal representation as required by KRS 31.211(1). See also Maynes v. Commonwealth , 361 S.W.3d 922, 929 (Ky. 2012). For these reasons, the judgments of the Campbell Circuit Court are reversed in part. The trial court is directed to enter corrected sentencing orders removing the offending language and requirements.

Next, Applegate contends the trial court should have granted his motion to withdraw his guilty pleas on the charges of trafficking and possession of a handgun by a convicted felon. However, review of the record reveals the arguments presented to this Court in support of his position are wholly different from those presented to the trial court. Attempting to present new reasons supporting his position at this late date is wholly insufficient. The time to make these arguments was in the trial court. It is axiomatic that a party may not "feed one can of worms to the trial judge and another to the appellate court." Kennedy v. Commonwealth , 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth , 312 S.W.3d 321, 327 (Ky. 2010) (citations omitted). As the trial court was not presented these additional arguments, nor given the opportunity to rule thereon, we shall not consider them for the first time on appeal.

Applegate next contends he was not a convicted felon and therefore, his conviction of being a felon in possession of a handgun was improper. We disagree. First, Applegate entered an unconditional plea, thereby waiving "all defenses except that the indictment did not charge an offense." Hughes v. Commonwealth , 875 S.W.2d 99, 100 (Ky. 1994). Second, although he attempts to circumvent his waiver by couching his argument in terms of an allegedly illegal sentence, the issue presented is actually one of sufficiency of the evidence, alleging the Commonwealth could not prove the fact of a prior felony conviction. Post-judgment challenges to sufficiency of the evidence are precluded by unconditional guilty pleas. Johnson v. Commonwealth , 103 S.W.3d 687, 696 (Ky. 2003) (citing Taylor v. Commonwealth , 724 S.W.2d 223, 225 (Ky. App. 1986) ). Further, although Applegate was ultimately successful in having the underlying felony conviction overturned,...