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RENDERED: MAY 27, 2011; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2009-CA-001809-MR MICHAEL PURTILAR APPELLANT

v.

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE OLU A. STEVENS, JUDGE ACTION NO. 06-CR-003636 & 07-CR-001486

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, MOORE, JUDGES; ISAAC, SENIOR JUDGE.1 MOORE, JUDGE: Michael Purtilar appeals the Jefferson Circuit Court's denial of his RCr2 11.42 motion to vacate his 2007 criminal convictions and his motion for an evidentiary hearing. After a careful review of the record, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND
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Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS) 21.580.
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Kentucky Rule of Civil Procedure.

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Michael Purtilar was indicted in Jefferson Circuit Court in Case No. 06-CR-3636 with manufacturing methamphetamine, pursuant to KRS3 218A.1432. Specifically, this count reads as follows: That on or about the 22nd day of March, 2006, in Jefferson County, Kentucky, . . . MICHAEL W. PURTILAR, acting alone or in complicity, committed the offense of Manufacturing Methamphetamine by knowingly and unlawfully possessing chemicals or equipment for the manufacture of methamphetamine with the intent to manufacture methamphetamine, a controlled substance classified as a Schedule II Controlled Substance. Purtilar was also charged by information in Case No. 07-CR-1486 with being a persistent felony offender (PFO), second degree,4 and illegal possession of a controlled substance in violation of KRS 218A.1415. Specifically, the latter count read as follows: That on or about the 22nd day of March, 2006, in Jefferson County, Kentucky, . . . MICHAEL WALLACE PURTILAR, committed the offense of Illegal Possession of a Controlled Substance in the First Degree by knowingly and unlawfully having in his possession an amount of a controlled substance classified as a Schedule II Controlled Substance known as Methamphetamine. The Commonwealth, in conjunction with Purtilar's counsel, tailored a plea agreement wherein the facts regarding the charges included that Purtilar "was found in a garage where a methamphetamine lab had been operating. Finished product was also found." This is in accord with the investigative report which stated that, in addition to finding products and chemicals used to manufacture

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Kentucky Revised Statute. KRS 532.080.

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methamphetamine, the detectives involved in the investigation also located a small bag of the finished product of methamphetamine. Pursuant to the plea agreement constructed by the Commonwealth and his attorney, Purtilar entered a plea of guilty in both cases and received a twentyyear sentence. The agreement included that Purtilar would receive shock probation after serving 90 days' imprisonment.5 Purtilar's probation was later revoked after he pled guilty to an offense he committed while on probation. Consequently, he was ordered to serve his twenty-year sentence. On August 10, 2009, Purtilar filed a motion pursuant to RCr 11.42 and requested an evidentiary hearing. He argued that his counsel did not advise him that a conviction for both manufacturing methamphetamine and possession of methamphetamine would violate the double jeopardy clause in the Fifth Amendment of the United States Constitution and Section 13 of the Kentucky Constitution. The circuit court denied Purtilar's request for an evidentiary hearing

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We note that in Case No. 06-CR-3636, the charge of manufacturing methamphetamine was amended to criminal facilitation to manufacture methamphetamine. During the hearing on the guilty plea, the Commonwealth realized that as the agreement was drafted Purtilar would not be probation eligible because the manufacturing charge was a Class B felony and that he would only be probation eligible if charged with a Class D felony. See KRS 533.060(2); KRS 532.080(5). The Commonwealth informed the court that it was therefore necessary to amend the manufacturing charge so that Purtilar would be eligible for probation, and Purtilar's attorney agreed. The hearing was briefly delayed while the Commonwealth and Purtilar's attorney worked out a new agreement that would result in Purtilar's probation eligibility. The amended agreement included a facilitation charge to manufacture methamphetamine which was a Class D felony, rather than the Class B felony of manufacturing methamphetamine. This amendment resulted in Purtilar's being probation eligible, as the parties had agreed.

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and denied his RCr 11.42 motion. Purtilar thereafter filed a timely notice of appeal. II. ANALYSIS A conviction must be set aside "where the State is precluded by the United States Constitution from haling a defendant into court on a charge," and a double jeopardy claim is not waived even if "the conviction was entered pursuant to a counseled plea of guilty." Menna v. New York, 423 U.S. 61, 62 (1975). A guilty plea may be set aside when a defendant was not properly advised by counsel and, as a consequence, the plea was not voluntarily and intelligently entered. See United States v. Broce, 488 U.S. 563, 574 (1989). Purtilar relies heavily on Beaty v. Commonwealth, 125 S.W.3d 196 (Ky. 2003) for his double jeopardy argument. In Beaty, the Kentucky Supreme Court held that the double jeopardy clause is violated when a defendant is convicted of manufacturing methamphetamine and that same methamphetamine is the basis for a conviction of possession as well. Thus, possession of methamphetamine is a lesser-included offense within the manufacturing of methamphetamine under KRS 218A.1432(1)(a). Id. at 211-214. Accordingly, the Court in Beaty decided that the actual manufacturing of the finished product necessarily included a certain period of possession of that finished product. Consequently, under Beaty, to establish a double jeopardy violation, the same methamphetamine used for the charge of manufacturing must also be the same

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methamphetamine used for the charge of possession. Id. at 212. Purtilar's case, however, is distinguishable from the Beaty case. In Beaty, as noted supra, the defendant was charged with KRS 218A.1432(1)(a), which provides that "[a] person is guilty of manufacturing methamphetamine when he knowingly and unlawfully. . . [m]anufactures methamphetamine." (Emphasis added). Although the indictment under present review did not specifically state whether Purtilar was charged under KRS 218A.1432(1)(a) or (1)(b), the language of the indictment unequivocally discloses that Purtilar was charged under KRS 218A.1432(1)(b), not (1)(a) as was the case in Beaty. Here, the indictment charged that Purtilar "possess[ed] chemicals or equipment for the manufacture of methamphetamine with the intent to manufacture methamphetamine," which mirrors the language of KRS 218A.1432(1)(b). The Court in Beaty acknowledged it would have reached a different result if it were considering subsection (b) rather than subsection (a). Id. at 212. And, in a recent unpublished case, Bock v. Commonwealth, 2011 WL 1642374, No. 2010-SC000095 (April 21, 2011),6 the Kentucky Supreme Court had another opportunity to address the distinction between the two subsections of KRS 218A.1432(1), holding that [i]n contrast with KRS 218A.1432(1)(a), possession of methamphetamine cannot be considered an element of KRS 218A.1432(1)(b), as guilt is instead predicated upon possession of
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We cite to this unpublished case as persuasive authority upon determining that it meets the requirements of CR 76.28(4)(c) for citation.

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chemicals or equipment. Because possession of the finished product is not an element of KRS 218A.1432(1)(b), it therefore cannot be considered a lesser-included offense within KRS 218A.1432(1)(b). Accordingly, no double jeopardy issue arises when a defendant is convicted of manufacture of methamphetamine under KRS 218A.1432(1)(b) and possession of methamphetamine. Id. at *2. We find Bock persuasive and that it adheres to the portions of the Beaty decision relating to subsection KRS 218A.1432(1)(b) cited supra. Consequently, under the facts of this matter, we agree with the circuit court that there was not a double jeopardy violation; therefore, Purtilar did not receive the ineffective assistance counsel. Finally, Purtilar argues that the circuit court should have granted his request for an evidentiary hearing concerning his RCr 11.42 claims. Pursuant to RCr 11.42(5), if there is "a material issue of fact that cannot be determined on the face of the record[,] the court shall grant a prompt hearing...." Given the fact that we are able to determine from the face of the record that no errors occurred, we find no error in the circuit court's denial of an evidentiary hearing. Accordingly, we affirm. ALL CONCUR.

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BRIEF FOR APPELLANT: Michael Purtilar, Pro Se Langrange, Kentucky

BRIEF FOR APPELLEE: Jack Conway, Attorney General Frankfort, Kentucky Christian K. R. Miller, Assistant Attorney General Frankfort, Kentucky

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