Sanders v. Com.
| Decision Date | 09 September 1983 |
| Citation | 663 S.W.2d 216 |
| Parties | James SANDERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Ernestine SANDERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Shelby C. Kinkead, Jr., J. Randall Reinhardt, Bulleit, Kinkead, Irvin & Reinhardt, Lexington, for appellant, Ernestine Sanders.
Michael E. Cassity, Cassity, Kelly & Assoc., Mt. Orab, Ohio, for appellant, James Sanders.
Steven L. Beshear, Atty. Gen., Cicely D. Jaracz, Ethyle J. Noel, Asst. Attys. Gen., Frankfort, for appellee.
Before COOPER, HOGGE and HOWERTON, JJ.
James and Ernestine Sanders appeal from a judgment in the Mason Circuit Court with a five-year sentence for possession of a Schedule II controlled substance. They present two allegations of error. They first argue that the trial judge erred by sentencing each of them to a five-year term for possession of cocaine. The second argument is that the trial court erred by overruling their motion to suppress the evidence seized from their home on May 21, 1982.
The appellants were each indicted on four counts involving drug-related crimes in violation of KRS Chapter 218A. They were charged with trafficking in cocaine, possession of a counterfeit controlled substance, trafficking in marijuana, and possession of cocaine.
The parties moved to suppress the evidence, but the motion was denied. They then bargained with the Commonwealth and entered pleas of guilty on October 25, 1982, to the charge of possession of cocaine. On recommendation of the Commonwealth, the other charges were dismissed, and they were given five-year sentences.
The basis for the appellants' first argument is that cocaine is not a narcotic and, therefore, the five-year sentence was impermissible. Prior to July 15, 1982, KRS 218A.990(5) read:
Any person who knowingly and unlawfully possesses a controlled substance classified in Schedules I or II which is a narcotic drug shall, for the first offense, be confined in the penitentiary for not less than one (1) year nor more than five (5) years ....
At that time, the penalty for possessing a nonnarcotic Schedule II drug carried a maximum sentence of a $500.00 fine and one year in the county jail. KRS 218A.990(3).
Some confusion may have been created by the amendment to KRS 218A.990, which became effective July 15, 1982. Subsection (7) now reads:
Any person who knowingly and unlawfully possesses a controlled substance classified in Schedules I or II which is a narcotic drug or which is included in KRS 218A.070(1)(d) shall, for the first offense be confined in the penitentiary for not less than one (1) year nor more than five (5) years ....
KRS 218A.070 relates to "Schedule II Controlled Substances." It has not been amended, and Subsection (1)(d) reads, "coca leaves and any salt, compound, derivative, or preparation of coca leaves ...." Cocaine was, thus, specifically covered in the one to five-year penalty by the new language in KRS 218A.990(7).
The appellants and the Commonwealth attempt to argue what the legislature did or did not intend by the original statutes and by the amendment. We find none of the arguments to be dispositive. KRS 218A.010(10), both before and after July 15, 1982, defined "narcotic drug" to mean, among other things, "coca leaves and any salt, derivative, or preparation of coca leaves ...." KRS 218A.010(10)(d). The definition is identical to the language in KRS 218A.070.
The appellants present a lengthy brief attempting to explain that cocaine is a non-narcotic. This may or may not be technically correct. It is quite apparent, however, that the legislature chose to include cocaine in its definition of narcotics and to treat it the same as a narcotic prior to July 15, 1982. This they had a right to do, and the penalty for possession of this drug was clearly to be one to five years.
When James and Ernestine Sanders entered their guilty pleas, they signed documents indicating that they...
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