Jerry Layton appeals his sentence and convictions for facilitation of the manufacture of methamphetamine and engaging in organized crime.

The COA vacates and remands the judgment for consideration of probation and resentencing in compliance with Kentucky Revised Statutes (KRS) 533.010(2) but affirm as to all remaining issues

COA rejected Appellant’s argument that that KRS 218A.1431 provides an exception to the general definition of “traffic” applicable only to methamphetamine offenses, whereby “manufacture” is not included in the definition. If this interpretation is correct, Appellant could not be convicted of organized crime because he was not trafficking in a controlled substance; rather, he was aiding the manufacture of methamphetamine, which is not an enumerated criminal syndicate statutory qualifier. COA disagreed and found it unnecessary to conduct extensive statutory interpretation. The organized crime statute does not require the Commonwealth to prove trafficking in a controlled substance actually occurred.

Layton next argues that conviction of complicity in the manufacture of methamphetamine and of being an accomplice in a criminal syndicate violates double jeopardy principles. His argument fails to acknowledge that he was actually convicted of facilitation of the manufacture of methamphetamine pursuant to KRS 506.080, which is a lesser-included offense of complicity. Chumbler v. Commonwealth, 905 S.W.2d 488, 499 (Ky. 1995). Furthermore, in Collier and Britt, the Supreme Court rejected the appellants’ arguments involving the doctrine of double jeopardy as a bar to their convictions for criminal complicity and organized crime.

KRS 506.120 clearly requires proof of a number of facts not required by KRS 506.080. For example, KRS 506.120(1) requires a person to have “the purpose to establish or maintain a criminal syndicate or to facilitate any of its activities,” a requirement not contained within KRS 506.080. According to KRS 506.080(1), if a person engages in conduct to provide someone with the means or the opportunity to commit a crime, his conduct must actually aid that party in committing the crime. In other words, the crime allegedly being facilitated must actually be consummated and committed. See KRS 506.080 (LRC Commentary).

No consummation requirement is contained within any of the prohibited acts contained within KRS 506.120(1)(a)-(c). Thus, “each statute requires proof of a fact the other does not.” However, there was testimony that Layton also bought ingredients that were used by the group in the manufacturing of methamphetamine. That conduct alone of providing materials supported a criminal syndicate conviction. Therefore, Layton’s double jeopardy argument must fail.

Our Supreme Court concluded that the search of the Chestnut Street residence was constitutional at least under two exceptions to the warrant requirement. The search of the Hazelwood Road residence was constitutional as well – particularly since a valid search warrant was obtained after Swann admitted that methamphetamine was being produced at that address. Therefore, this argument must fail.

Although KRE 615 is mandatory, the trial court’s denial of Layton’s motion to separate must be evaluated in light of the untimeliness of the motion, and COA agreed with the Commonwealth that even if the judge’s denial of Layton’s motion to separate was in error, any error was harmless. Even assuming that the trial court erred in failing to separate Wilson as a witness, her isolated and speculative bit of testimony upon cross-examination would not have changed the result of the trial. There was additional evidence directly linking Layton to the subject methamphetamine operation. Thus, any error committed by the trial court in this respect was harmless and does not require reversal.

Upon receiving this verdict, the trial judge told the jury that it was “sending a message” by its verdicts and that none of the defendants would be probated. He further noted that he would hear the defendants’ motions for probation but that he would not consider them. KRS 533.010(2) provides that “[b]efore imposition of a sentence of imprisonment, the court shall consider probation, probation with an alternative sentencing plan, or conditional discharge.” Whether or not a court actually grants probation or conditional discharge is a matter resting within its discretion; however, “the statute requires that probation or conditional discharge be given consideration.” Brewer v. Commonwealth, 550 S.W.2d 474, 477 (Ky. 1977).

The COA agreed that the court committed palpable error in bodaciously announcing its clear and deliberate intention to disregard its statutory duty. Therefore, we vacate the judgment and remand this case for consideration of probation and resentencing in compliance with the statute

Digested by Michael Stevens

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