Commonwealth v. Sears , 2006 Ky. LEXIS 295 ( 2006 )

LAMBERT, Chief Justice,

dissenting.

Appellee, Michael Sears, is a duly licensed dental practitioner. Sears was charged with six counts of illegally prescribing controlled substances, a felony under KRS 218A.1404(3). The Commonwealth alleged that Sears prescribed controlled substances for persons who were not his patients in return for their agreement to share the substances with him.

After Sears’ motion to dismiss the indictment was denied, an agreement was made with the Commonwealth whereby three of the charges were dismissed and he entered a conditional guilty plea to the three remaining charges. The trial court sentenced Sears to one year on each count to run consecutively for a total of three years, with incarceration probated. The Court of Appeals reversed Sears’ convictions.

The indictment charged Sears with the felony of illegally prescribing a controlled substance in violation of KRS 218A.1404(3). This statute provides:

No person shall dispense, prescribe, distribute, or administer any controlled substance except as authorized by law.

However, subsection (4) of KRS 218A.1404 provides in pertinent part:

Unless another specific penalty is provided in this chapter, any person who violates the provisions of subsection ... (3) of this section shall be guilty of a Class D felony for the first offense and a Class C felony for subsequent offenses[.]

Sears contends that as he is a licensed dental practitioner and is thereby authorized by law to dispense, prescribe, distribute or administer controlled substances, he cannot be guilty of violating the statute under which he was charged because KRS 218A.1404(4) mandates that another statutory provision be applied to his conduct. Rather, Sears insists that KRS 218A.170(3)(a) and KRS 218A.180(3)(a) are controlling. If this is so, by the mandate of KRS 218A.1404(4), we must apply the other statutory provisions.

Analyzing Sears’ claim, it appears that pursuant to KRS 218A.170(3)(a), a practitioner may prescribe a controlled substance “only for a legitimate medical purpose and in the course of professional practice.” It is undisputed that Sears is a practitioner authorized to prescribe, etc., but from the evidence it is equally clear that his prescribing in this case was not for a legitimate medical purpose and in the course of his professional practice. Thus, it would appear that KRS 218A.170(3)(a) is applicable. The next section, KRS 218A.180(3)(a), appears to precisely cover Sears’ conduct. This statute conditions the validity of the prescription of a controlled substance on whether it is “for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice.” Manifestly, Sears’ conduct was not for a legitimate medical purpose nor was it in the usual course of his professional medical practice, but he was indeed a practitioner. The conclusion is inescapable. Sears violated KRS 218A.180(3).

As required by KRS 218.1404(4), where there is “another specific penalty” it must be applied. The penalty for violating KRS 218A.180(3) is found in KRS 218A.180(9). A first offense under this section is a Class A misdemeanor. As it is undisputed that this was Sears’ first offense, his offense was a misdemeanor.

In another circumstance, where two statutes apply, this Court might have the option of concluding that either are applicable and affirm a judgment whereby a party is convicted of one or the other. But that is not the case here. The reason is that KRS 218A.1404(4) tells us that subsection (3) may be used only if no other “specific penalty is provided in this chapter.” As another specific penalty is provided in this chapter, i.e., KRS 218A.180(9), it must be applied or KRS 218A.1404(4) is rendered meaningless.

Accordingly, I dissent.

GRAVES and McANULTY, JJ., join this dissenting opinion.