                IMPORTANT NOTICE
         . NOT TO B.E PUBLISHED OPINION
              '                      .
· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
   PURSUANT TO THE RULES OF CIVIL PROCEDURE .
   PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), .
 · THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
   CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER
   CASE IN ANY_ COURT OF THIS STATE; HOWEVER,
   UNPUBLISHED _KENTUCKY APPELLATE DECISIONS, ·.
   RENDERED AFTER JANUARY 1, 2003, MAY BE CITED ~OR
   CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
   OPINION THAT WOULD ADEQUATELY-ADDRESS THE ISSUE
                                 J

 . BEFORE THE COURT. OPINIONS CITED FOR CONS_IDERATION
   BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
   DECISION IN THE FILED DOCUMENT AND A COPY OF THE
   ENTIRE DECISION SHALL·BE TENDERED ALO.NG WITH THE
   DOCUMENT TOT.HE COURT AND ALL PARTIES TO THE.
   ACTION.
                                                    RENDERED: NOVEMBER·2, 2017
                                                           NOT TO BE PUBLISHED


                          ~




                  ciuprtmt Q.Tnutf nf 1Rtnfurku
                                    2017-SC-000110-DG



COMMONWEALTH OF KENTUCKY                                                      .APPELLANT


                     ON REVIEW FROM COURT OF APPEALS.
v.                      CASE NO. 2015-CA-001916-MR
                  MONTGOMERY CIRCUIT COU.RT NO. 15-CR-00079


MANDY HUGHES                                                                      APPELLEE.



                       MEMORANDUM OPINION OF THE COURT

                                         REVERSING.

       Mandy Hughes sold to a confidential informant ten capsules con\aining

heroin, the aggregate weight of which amounted to less than two grams of

heroin. She was indicted for trafficking in a controlled substance under

Kentucky Revised Statute (KRS) 218A.1412(1)(c), 1 a statute creating an offense



1Effective June 29, 2017, the legislature amended KRS 218A.1412 to now state the
foll~wing:          •                                     .             I     .




       (1) A person is guilty of trafficking in a controlled substance in the first
           degree when he or she knowingly and unlawfully traffics in:

             (b) Two (2) gr~s or more of methamphetamine;

             (d) Any quantity of heroin ...

As a result of this legislative amendment, the conflict at the center of this case, and·
any future case with this issue, no longer exists because possessing any quantity of
punishable as a Class C felony with five to ten years' imprisonment for

trafficking two or more grams or ten or more dosage units of a Schedule I

Controlled Substance, which classification includes heroin. Hughes moved the
I                             •




trial court to amend the indictment. She_ argued that she was improperly

charged, the proper charge being under KRS 218A.1412(1)(e), a Class·D felony

    punishable by one to five years'-imprisoninent for trafficking in less than two

grams of a Schedule I Controlled Substance.

            The trial court denied Hughes's motion, concluding th~t the

    Commonwealth exercised its discretion in determining under which section of
                                                   .                      -


    KRS 218A.1412 to prosecute Hughes. Hughes then entered a conditional guilty

    plea to the charge in the indictment and appealed the trial court's ruling to the

    Court of Appeals. The Court of Appeals reversed the ruling of the trial court

and held tJ:iat a statutory conflict existed within KRS 218A.1412             su~h   that

    Hughes, having trafficked in less than two grams of heroin, could only be

    charged with a Class D felony under KRS 218A._1412(1)(e). We granted

    discretionary review, reverse the opinion of the Court of Appeals, and reinstate
                                                                      I


    the trial court's judgm~nt.

                                       I. BACKGROUND
          At all times relevant to this case, KRS 218A.1412 stated the following

    relevant provisions:



    heroin whatsoever ~r possessing ten or: more dosage units of heroin both result in a
    Class C felony conviction in~tead of the Class C an_d D discrepancy Hughes alleges
    under the version of KRS 218A.1412 under which she was prosecuted.


                                               2
            (1) A person is guilty of trafficking in a controlled substance in the
            first degree when he' or she knowingly and unlawfully traffics in:

                (b) Two (2) grams or more of heroin ... ;

                (c) Ten (10) or more dosage units of a controlled substance that
            is classified in Schedules I or II and is a narcotic drug, or a
/
            controlled substance analogue;



                (e) Any quantity of a controlled substance. specifie in paragraph
            (a), (b), or (c) of this subsection in an amount less than the     ·
            amounts specified in those paragraphs.
                                                                 \                  (


            (3) (a) Any person who violates the provisions of subsection (l)(a),
            (b), (c), or (d) Qf this section shall be guilty of a Class C felony for
            the first offense and a Class B felony for the second or subsequent
            offense. · '.                  ·                                     '

              . (b) Any person.who Violates the provision of subsection (l)(e) of
            this section: 1. Shall be guilty of a Class D felony for the first
            offense.                          '          '
                                                            ''
    KRS 218A.010(12)
               -
                     defines dosage unit as a "single pill, capsule, ampule,
                                                                          .
                                                                             liquid,

    or other form of administration available as a single unit[.]"2 Heroin is a

    Schedule I Controlled Substance. 3 KRS 532.060(2)(c) imposes a five to ten-year




    2   (emphasis added).
    3 KRS 218A.050, Kentucky's enumeration of s·chedule I Controlled' Substances, was
    repealed by the legislature during the pendency of this case. The Court of Appeals
    relied on this statute in finding heroin to be a Schedule I Controlled substance. KRS
    218A.020(3)(a), currently in effect, states, "If any substance is designated or
    rescheduled as a controlled substance under the federal Controlled Substances Act,
    the dnig shalt be considered to be controlled at the state level in the same numerical ·
    schedule corresponding to the federal schedule." 21 U.S.C. § 812 Schedule I(b)(lO), a
    section of the federal Controlled Substances Act, lists heroin as a Schedule I
    Controlled Substance. So, regardless of which statute applies, Kentucky identifies
    heroin as a Schedule I Controlled Substance.

                                                3
prison sentence for Class C felonies, while KRS 532.060(d) imposes a one to

five-year prison sentence for Class D felonies.

      In sum, the statutes listed above frame the sole issue in this case:

Whether an individual selling ten capsules-but less than two grams-of heroin

should be charged under KRS 218A.1412(1)(c),\a Class C felony and

punishable by five to ten years' imprisonment, or under KRS 218A.1412(1)(e), a

Class D felony and punishable by one to five years' imprisonment.


                                    II. ANALYSIS

      "Insofar, as this case requires us to construe statutory provisions, we do

so de novo."4 We agree with the Commonwealth that no ambiguity in the
               -                             )


relevant version of KRS 218A.1412
                         I
                                  exists. The version of KRS 218A.1412 under

review today simply provided prosecutors with two different avenues under

which to charge potential offenders. The statutory sections do not conflict;

-rather, they provide options for the Commonwealth to combat the use and

·spread of heroin in Kentucky.
                                     -                            .
      In finding this to be the case, we highlight the rules of statutory

construction used to come to this conclusion. "Th,e primary purpose of judicial

construction is to carry:out the intent of the legislature. In construing a

statute, the court must consider 'the intended purpose of the statute and the




4Commonwealth v. Morseman, 379 S.W.3d 144, 148 (Ky. 2012) (citing Bob Hook
Chevrolet Isuzu, Inc. v. Commonwealth Transp. Cabinet, 983 S.W.2d 488, 490-91 (Ky.
1998)).

                                         4
                                                                                            (


    misch.ief intended to be remedied. '"5 "The first principle of statutory

    construction is to use the plain meaning of the words used in the statute."6 "A

    court may not interpret a statute at variance with its stated language."7 "We

    presume that the General Assembly intended for the statute to be construed as
.                         '                                           .

    a whole, for all of its parts to have meaning, and for it to harmonize with

    related statutes."8 "[S]tatutes must be given a literal interpretation unless they

    are ambiguous and if the words are.not ambiguous, no statutory construction

    is requ,ired."9

             In addition to these statutory canons, we recognize that "so long as the

    prosecutor has probable cause to believe that the accused committed an

    offense defined by statute, the decision whether or'not to prosecute, and what

    charge to file or bring before a grand jury, generally rests entirely in his.

    discretion."10

             The reading of the relevant version of KRS 218A. l 412 is simple: If a

    situation arises where an individl1al is trafficking in less than two grams of

    heroin, but more than ten dosage units, the Commonwealth can use KRS·

    ~218A.1412(1)(c)    or (e) to charge the individual. The language of the statute is



    s Monumental Life Ins. Co. v. Department of Revenue, 294 S.W.3d 10, 19 (Ky. App.
    2008).
    6   Monumental Life Insurance, 294 S.W.3d at 19 (citing Revenue Cabinet v. O'Daniel,
    153 S.W.3d 815 (Ky. 2005)).                                                     '
    1   Smith.Kline Beecham Corp. v. Revenue Cabinet, 40 S.W.3d 883, 885 (Ky. App. 2001).
    s Shawnee Telecom Res., Inc. v: Brown, 354 S.W.3d 542, 551 (Ky. 2011).
    9   Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002).
    10   Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
                                      \         5
'-·
      clear, and the language of the statute effectuates the intent of the legislature-

      the spread of heroin is an epidemic, a "mischief,'' plaguing this state,. and the

      relevant version of KRS 218A.1412 gave the Commonwealth options for battling
                         \



      this plague. In a situation like. Hughes's, where a defendant trafficked in ten

      dosage units, but less than two grams, of heroin, the plain and literal meaning

      of KRS 218A.1412 afforded the prosecutor the discretion to seek an indictment

      ,under (l)(c) or (l)(e), thereby imposing a Cfass C or D felony punishment. This

      is not conflict or ambiguity-is permissible prosecutorial discretion.

                  Because the statutes do not conflict and are not ambiguous, the Court of

      Appeals incorrectly concluded that because "the specific provision takes

      precedence over the general," 11 and because KRS 218A.1412 (1)(b) specifically

      enumerates. "heroin" when making punishable trafficking in two or more grams

      of heroin, this·meant that KRS 218A.1412(1)(e) always applied in a situation

      ~ke the factual circumstances of this case. The statutory canons used by the

      Court of Appeals only apply in circumstances of statutory conflict or ambiguity.

      As we have explained, the now-superseded version of KRS 218A.1412 simply

      provided alternative avenues, options, for the Commonwealth to battle the
           '                 '

      spread of heroin, not conflicting statutes showing contrary legislative intent.

                  In addition, the Court of Appeals incorrectly resorted to a common

      understanding of dosage unit, instead of applying the statute's enumerated

      definition ·of dosage unit. "When there is no specific, statutory definition, words

  )
                                            r-
      11       Commonwealth v. Phon, 17 S.W.3d 106, 107 (Ky. 2000).

                                                     6

                                                                                             I
  of a statute shall be construed according to their common and approved

  usage."12 "An unambiguous statute is to be applied without resort to any

  outside aids." 13 Taken together, these rules of law provide that a statute's

  enumeration of a term, if present, takes precedence over the common usage of

. ~a term. The Court of Appeals incorrectly resorted to a common-usage definition

  of heroin. when concluding that the legislature did not intend for heroin to be
          (

  measured in prescribed amounts, but rather by bulk weight. KRS 218A.010(12)

  clearly defines dosage unit as a "single pill, capsule, ampule, liquid, or other

  form of administration available as a single unit[.]"14 In other words, ten

  capsules of heroin equates to ten dosage units of heroin under the language of

  the statute. KRS 218A.010(12) is unambiguous in this regard, so we do not

  resort to the common usage of dosage unit.

           We find applicable to the present case the Court of Appeals' statement in

  Commonwealth v. McKinney. is There, the Court of Appeals stated that if two

  penalties apply to the same violation, a statutory conflict exists, and rules of

  statutory construction must be applied to resolve the conflict.16 But two

  different violations in KRS 2 l BA.1412 exist under the facts of the present

  case-trafficking heroin by ten or more dosage units and trafficking heroin by



  12 Kentucky Unemploymentlns. Co. v: Jones, 809 S.W.2d 715, 716 (Ky. App. 1991)
  (citing Claude N. Fannin Wholesale Co. v. Thacker, 661S.W.2d477 (Ky. App. 1983)).
                                                       /
  13   Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002).
  14   (emphasis added).
  1s 594 S.W.2d 884 (Ky. App. 1979).
  16   McKinney, 594 S.W.2d at 887.

                                            7
less tha.n two grams. Trafficking heroin by dosage unit requires the heroin to

be packaged inside a "single pill, capsule, ampule, liquid, or other form of

administration available as a single unit" 17 , in   ~ddition   to a requirement that

ten of these, dosage units exist, which trafficking less than two grams of heroin

does not. Similarly, trafficking less than two grams of heroin requires some

quantity of heroin to exist, while this fact alone would not satisfy a conviction

of trafficking ten or more dosage units. Because the crimes are distinct, no

conflict exists.

        Lastly, while the rule of lenity requires any ambiguity in a statute to be

resolved in favor of a criminal defendant, is because we find no ambiguity in the

relevant version of KRS 218A.1412, the rule of lenity does not apply in this

case.

                                   III.   CONCLUSION

        We reverse the Court of Appeals opinion and hold that the version of KRS

218A.1412as it existed at all times relevant to this case afforded the

Commonwealth the ability to seek indictment of individuals under either

subsection (l){c) or (l)(e) when either statute applied to the circumstances of

the case. Therefore, no error occurred when the trial court denied Hughes's

motion to amend the indictment. The judgment of the trial court is ~einstated.

        All sitting. All concur.




11   KRS 218A.020(12) (emphasis added).
1s   White v. Commonwealth, 178 S.W.3d 470, 483-84 (Ky. 2005).

                                           8
COUNSEL FOR APPELLEE:

Shannon Renee Dupree
Assistant Public Advocate


COUNSEL FOR APPELLANT:
Andy Beshear
Attorney General of Kentucky

Emily Lucas
Attorney General's Office




                                       r




                                   )




                               9
