Weatherly v. Commonwealth

• Decision Date: 27 January 2023
• Docket Number: 2021-CA-0160-MR
• Parties: RAYMOND WEATHERLY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

RAYMOND WEATHERLY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

No. 2021-CA-0160-MR

Court of Appeals of Kentucky

January 27, 2023

NOT TO BE PUBLISHED

APPEAL FROM FULTON CIRCUIT COURT HONORABLE TIMOTHY A. LANGFORD JUDGE ACTION NO. 17-CR-00121

BRIEFS FOR APPELLANT: Kayla D. Deatherage Frankfort, Kentucky

BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky

BEFORE: COMBS, LAMBERT, AND TAYLOR, JUDGES.

OPINION

LAMBERT, JUDGE

Raymond Weatherly appeals his conviction for trafficking in a controlled substance in the first degree. We affirm. The relevant underlying facts are the same as those set forth by our Supreme Court in an opinion affirming Weatherly's convictions on closely related charges:

Weatherly and Eva Brady (Brady) stopped at a gas station in Fulton County. Weatherly had previously consumed alcohol and marijuana and Brady had consumed methamphetamine. Brady entered the store while Weatherly remained in his truck. A Kentucky State Police Trooper, Paul Hale (Hale), stopped at the gas station to air up one of the tires on his cruiser. Trooper Hale indicated that, while airing up his tire, he could smell marijuana and the odor intensified when Weatherly got out of his truck and went inside the store.

Weatherly entered the store with a pill bottle and asked Brady to put the pill bottle in her vagina. Weatherly believed the police would not search Brady and Weatherly indicated that he did not have any other drugs in the truck. Upon exiting the store, Trooper Hale stopped Brady and administered a sobriety test. Brady admitted to being high on methamphetamine after being charged with driving under the influence.

When Trooper Hale was arresting Brady, she was unable to sit down in the cruiser because of the pill bottle in her vagina. Brady removed the bottle, which contained a blunt, cocaine methamphetamine, and 29 oxycodone pills. Brady told Trooper Hale that the bottle belonged to Weatherly. Later, Brady eventually reached an agreement with the Commonwealth to receive unsupervised pretrial diversion in exchange for her testimony against Weatherly.

Weatherly admitted to smoking marijuana and consented to Trooper Hale searching his truck. The search revealed a 9mm pistol in the floorboard console and a shotgun in the backseat. Trooper Hale indicated that he still smelled unsmoked marijuana and eventually discovered a package containing marijuana under the passenger side of the truck. Weatherly denied the package was his but then admitted to tossing it under the truck.

Weatherly was indicted and ultimately convicted by a jury of first-degree possession of a controlled substance (for each separate drug: methamphetamine, cocaine, and opiates), enhanced by possession of a firearm; possession of marijuana, enhanced by possession of a firearm; two counts of tampering with physical evidence, one for the pill bottle and one for the package of marijuana underneath the truck; and trafficking in a controlled substance, firearm enhanced, for the opiates in the pill bottle. The jury recommended concurrent sentences except that the firearm enhanced trafficking charge was to run consecutively for a total of 25 years in prison.

Upon post-verdict, pre-sentencing motion, the trial court vacated the trafficking conviction due to an improper jury instruction [and] . . . imposed consecutive sentences (10 years each) for the possession of methamphetamine, gun enhanced and possession of cocaine, gun enhanced offenses.... Weatherly's total term of imprisonment was set at 20 years.

Weatherly v. Commonwealth, No. 2017-SC-000522-MR, 2018 WL 4628570, at *1 (Ky. Sep. 27, 2018) (unpublished) (footnote omitted).

This appeal involves the same underlying facts. But we do not have before us the record from the case which culminated in our Supreme Court's opinion. Instead of seeking to retry Weatherly on the trafficking charge which was vacated after the trial, the Commonwealth obtained a new indictment charging Weatherly with two counts of trafficking in a controlled substance, each firearm enhanced.

The new trafficking charges are apparently based on the same opiates discussed in our Supreme Court's opinion, one count for possessing opiates with intent to traffic them and one for transferring them to Brady.^[1] In March 2018, before our Supreme Court issued its opinion, Weatherly filed a motion to dismiss the new trafficking charges, arguing that it would be a double jeopardy violation to convict him of trafficking the same opiates which he had already been convicted of possessing.

The Commonwealth initially agreed with Weatherly. At a hearing in April 2018, the Commonwealth Attorney stated that the new trafficking charges would be a double jeopardy violation if our Supreme Court allowed the possession convictions to stand.^[2] But once our Supreme Court did just that in its September 2018 opinion, the Commonwealth changed its mind and insisted the trafficking charges were not a double jeopardy violation.^[3] The trial court denied Weatherly's motion to dismiss in August 2019.

In December 2019, Weatherly and the Commonwealth reached a plea agreement whereby one trafficking charge would be dismissed and Weatherly would plead guilty to the other charge, which would be amended to eliminate the firearm enhancement. The plea agreement envisioned Weatherly's entering a conditional plea as it explicitly allowed him to appeal on double jeopardy grounds. The agreement further stated that Weatherly would be sentenced to seven-years' imprisonment, concurrent with the sentence he received after the jury trial.

But the trial court refused to approve a conditional guilty plea. See Kentucky Rule of Criminal Procedure (RCr) 8.09 ("With the approval of the court a defendant may enter a conditional plea of guilty ...."). The trial court also adamantly refused to commit to running Weatherly's new sentence concurrently with his extant one.^[4] The end result was near chaos and persistent frustration as Weatherly appeared before the court five times on the same day until finally entering an Alford^[5] plea to one count of possessing with intent to traffic opiates.^[6] The judgment reflects that Weatherly was sentenced to seven-years' imprisonment, to run concurrent with his extant sentence, for the charge of possessing opiates with the intent to traffic. But we do not have footage of the sentencing to review.^[7] The charge of trafficking via transferring the opiates to Eva Brady was dismissed. Weatherly then filed this appeal.

Though Weatherly raises sundry arguments, they all boil down to his assertion that it is a double jeopardy violation for him to now be convicted of possession with intent to traffic the same opiates that he was previously convicted of possessing. And "possession of a controlled substance is a lesser offense included within the trafficking charge." Jackson v. Commonwealth, 633 S.W.2d 61, 62 (Ky. 1982). See also 1 Cooper &Cetrulo Kentucky Jury Instructions § 9.11A, § 9.11A.2 (2021) (listing first-degree possession of a controlled substance as a lesser-included offense of first-degree trafficking in a controlled substance). "A defendant is put in double jeopardy when he is convicted of two crimes . . . where one is simply a lesser-included offense of the other. In such a case, the defendant has only actually committed one crime and can only endure one conviction." Turner v. Commonwealth, 345 S.W.3d 844, 847 (Ky. 2011).

Of course, a defendant may properly be convicted of both possession and trafficking if two separate quantities of drugs are involved. See, e.g., Simpson v. Commonwealth, 159 S.W.3d 824, 828 (Ky. App. 2005) (holding that it did not violate double jeopardy for Simpson to have been convicted of both possessing and trafficking marijuana because there were two discrete quantities of marijuana but "had the police found only the marijuana in Simpson's car, convictions for both possession and trafficking of that marijuana would have violated Simpson's constitutional guarantee against double jeopardy"). Here, though we do not have the record of the case which led to Weatherly's possession conviction, it seems uncontested that the same opiates in the same pill bottle at the same time form the basis of both the former possession and current possession with intent to traffic convictions. Indeed, though he later changed his mind, the Commonwealth Attorney acknowledged that convicting Weatherly of possessing and trafficking under these facts would be a double jeopardy violation.

However, we need not opine definitively on whether a double jeopardy violation exists because Weatherly waived the ability to raise a double jeopardy argument on appeal.

"While an unconditional guilty plea waives the right to appeal many constitutional protections as well as the right to appeal a finding of guilt on the sufficiency of the evidence, there are some remaining issues that can be raised in an appeal." Windsor v. Commonwealth, 250 S.W.3d 306, 307 (Ky. 2008) (citation omitted). Those limited issues include "sentencing issues." Id. Weatherly argues his double jeopardy claim involves an appealable sentencing issue. We disagree.

Obviously Weatherly received a sentence for the trafficking charge and so his current argument in a loose sense involves a claim that his sentence was illegal because any sentence for an unallowable charge would perforce be improper. But a true "sentencing issue" which a defendant may appeal after pleading guilty "is a claim that a sentencing decision is contrary to statute, such as when an imposed sentence is longer than allowed by statute for the crime, or a claim that the decision was made without fully considering the statutorily-allowed...