JUNE 8, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:28)

PUBLISHED (COA).

COM. V. HILL
CRIMINAL:  Dismissal by Trial Court
2006-CA-000708
PUBLISHED: VACATING AND REMANDING
JUDGES: DIXON (PJ); MOORE, TAYLOR CONCURRING
KENTON COUNTY
DATE RENDERED: 6/8/2007

CA vacated and remanded TC's dismissal of PFO indictment after Commonwealth moved for continuance of trial date on underlying charges. Kentucky Rules of Criminal Procedure (RCr) 9.64 vests only the prosecution with the authority to dismiss an indictment. However, in Commonwealth v. Baker, 11 S.W.3d 585 (Ky.App. 2000), CA recognized the inherent authority of a trial court to dismiss an indictment when prosecutorial misconduct taints grand jury proceedings. Id. at 589. The Baker Court summarized the proof required to dismiss an indictment: “Generally, a defendant must demonstrate a flagrant abuse of the grand jury process that resulted in both actual prejudice and deprived the grand jury of autonomous and unbiased judgment.” Id. at 588. While there are no allegations of grand jury impropriety in the case sub judice, we find the reasoning of Baker instructive. After reviewing the hearing in this case, it appears the court implicitly found Hill would be prejudiced if required to proceed with the PFO charge and essentially invited Hill to request a dismissal. However, other than the trial judge's assertions of “gross misuse,” the record offers no evidence that the prosecutor asked for a continuance in bad faith or otherwise engaged in misconduct. In this case, we recognize the trial court's displeasure with the prosecutor for postponing trial and then bringing an additional charge against Hill. However, the very nature of a PFO charge “involve[s] the status of the offender and the length of the punishment, not a separate or independent criminal offense.” White v. Commonwealth, 770 S.W.2d 222, 224 (Ky. 1989). Likewise, because a PFO charge is a status offense, a defendant can be subject to retrial without violating the constitutional provisions against double jeopardy. Id. Consequently, we must reverse the order of Kenton Circuit Court dismissing the PFO charge against Hill.

Digested by Scott Byrd @ www.OlginandByrd.com

 

ASTRO, INC. V ENVIRONMENTAL AND PUBLIC PROTECTION CABINET
ADMINISTRATIVE LAW:  Waste dumps 
2006-CA-000872
PUBLISHED: AFFIRMING
JUDGES: MOORE (PJ); COMBS, NICKELL CONCURRING
FRANKLIN COUNTY
DATE RENDERED: 6/8/2007

This matter involves an appeal of the Franklin Circuit Court upholding the Final Order of the Secretary of the Environmental and Public Protection Cabinet regarding whether Appellant violated Kentucky Revised Statute (KRS) 224.40- 305. Affirmed.

Astro was cited for  violating KRS Chapter 151 - 401 KAR 4:060 § 4, for placement of fill material and other obstructions in the regulatory floodway. Astro was directed to immediately cease the placement of materials in the regulatory floodway and to remove all unpermitted material from the floodway.

The plain meaning of “waste site” is unambiguous and clearly entails conditions such as that on Astro's property. It is beyond dispute that waste was disposed and stored on the property, regardless of who originally put the waste materials on the site.  After Astro acquired the property, with full knowledge that a large amount of waste was already located on the site, waste was then added to the pile. In fact, the type of waste site on Astro's property may better be referred to as an open dump pursuant to 401 KAR 30.031 §1. In any case, the Secretary's determination that the condition constitutes a waste site is consistent with the plain statutory and regulatory language. Accordingly, a waste site exists on Astro's property.

by Michael Stevens

BUCHANAN V. COM.
CRIMINAL:  RCr 11.42 & CR 60.02
2006-CA-000923
 PUBLISHED: AFFIRMING
JUDGES:  MOORE (PJ); LAMBERT, NICKELL CONCURRING
FULTON COUNTY
DATE RENDERED: 6/8/2007

CA affirmed TC's dismissal without an evidentiary hearing of Buchanan's motion to vacate pursuant to RCr 11.42 and CR 60.02. CA rejected Buchanan's claims that (1) trial counsel rendered ineffective assistance when counsel failed to advise Appellant, before he pled guilty, that if he received probation, he would receive the maximum sentence allowed by law; (2) the trial court should have provided Appellant the opportunity to withdraw his guilty plea after the court increased his sentence by ten years above the sentence provided by the plea agreement; (3) the trial court failed to hold, and trial counsel failed to request, an evidentiary hearing to determine whether Appellant's guilty plea was entered intelligently and knowingly after the court learned that Appellant suffered from a chemical imbalance and bipolar disorder and that Appellant was under the care of a psychiatrist; and (4) trial counsel rendered ineffective assistance by failing to advise Appellant that merely possessing anhydrous ammonia is not enough to prove intent to manufacture methamphetamine.

Digested by Scott Byrd @ www.OlginandByrd.com

GIBSON V. COM.
CRIMINAL:  Dismissal with Prejudice
2006-CA-001147
PUBLISHED: AFFIRMING
JUDGES:  VANMETER (PJ); PAISLEY CONCURS; THOMPSON CONCURS W/RESULT ONLY FILING SEP. OPINION
GRAYSON
DATE RENDERED: 6/8/2007

The issue in this case is whether a TC has the discretion to order, over the objection of the Commonwealth, that a dismissal of a criminal indictment is with prejudice. KRS 505.030 appears to curtail the court's ability to limit further prosecutions for an indictment which was dismissed under RCr 9.64. This statute sets out four circumstances which serve to bar a subsequent prosecution:

(1) The former prosecution resulted in: 

(a) An acquittal, or

(b) A conviction which has not subsequently been set aside; or

(2) The former prosecution resulted in a determination by the court that there was insufficient evidence to warrant a conviction; or

(3) The former prosecution was terminated by a final order or judgment, which has not subsequently been set aside, and which required a determination inconsistent with any fact or legal proposition necessary to a

conviction in the subsequent prosecution; or 

(4) The former prosecution was improperly terminated after the first witness was sworn but before findings were rendered by a trier of fact. Termination under either of the following circumstances is not improper.

(a) The defendant expressly consents to the termination or by motion for mistrial or in some other manner waives his right to object to the termination; or

(b) The trial court, in exercise of its discretion, finds that the termination is manifestly necessary.

Only KRS 505.030(2) approaches the scenario implicitly urged by Gibson, i.e., “a determination by the court that there was insufficient evidence to warrant a conviction[.]” The commentary to KRS 505.030, however, makes clear that this determination is made only when the trial court, “after hearing the evidence, [concludes] that the defendant's conviction would have been unwarranted.” Such a situation would occur in a criminal trial after the presentation of evidence with a motion for a directed verdict.

Digested by Scott Byrd @ www.OlginandByrd.com

NOT PUBLISHED (COA) 

SMALLWOOD V. COM.
APPEALS: NOTICE, JURISDICTION, TIMELY
2005-CA-000714
NOT PUBLISHED: 97
DATE RENDERED: 6/8/2007

SMALLWOOD V. COM.
APPEALS: BRIEFS WITHOUT INTRO AND STATEMENT RE ARGUMENT; CAN OF WORMS; 
2006-CA-000257
NOT PUBLISHED: 79
DATE RENDERED: 6/8/2007

SKAGGS V. TRI-COUNTY ANIMAL SHELTER
CIVIL:  Civil Contempt
2004-CA-000841
NOT PUBLISHED: 90
DATE RENDERED: 6/8/2007

RILES V. THE KENTUCKY LOTTERY CORP.
CIVIL PROCEDURE:  RULE 60.01 - correction of clerical mistakes vs. judicial mistakes 
2004-CA-001234
NOT PUBLISHED: 99
DATE RENDERED: 6/8/2007

LAWSON V. HUNT
CIVIL PROCEDURE: SUMMARY JUDGMENT (findings of fact; conclusions of law; affidavits, failure to present contradictory evidence not fatal)
TORTS:  CIVIL RIGHTS CLAIM, STATUTE OF LIMITATIONS
2005-CA-002214
NOT PUBLISHED: 110
DATE RENDERED: 6/8/2007

BOWEN V. COM.
CRIMINAL:  SEARCH AND SEIZURE - PROBABLE CAUSE 
2004-CA-002324
NOT PUBLISHED: 99
DATE RENDERED: 6/8/2007

DORSEY V. MOTLEY
CRIMINAL:  PRISON DISCIPLINARY PROCEEDING AND WAIVER OF WITNESSES 
2006-CA-000053
NOT PUBLISHED: 88
DATE RENDERED: 6/8/2007

BROCKETT V. COM.
CRIMINAL: USE OF KRS 1891.010(3) PRESUMPTIONS ONLY FOR DUI; EXPERT OPINION; REBUTTAL EVIDENCE
2006-CA-000563
NOT PUBLISHED: 76
DATE RENDERED: 6/8/2007

ADAMS V. COM.
CRIMINAL:   RECANTED STATEMENTS AND SETTING ASIDE CONVICTION
2006-CA-000632
NOT PUBLISHED: 104
DATE RENDERED: 6/8/2007

SMITH V. COM.
CRIMINAL: SEIZURE OF PERSON; SHOW OF AUTHORITY
2006-CA-000654
NOT PUBLISHED: 88
DATE RENDERED: 6/8/2007

COBB V. COM.
CRIMINAL: RCR 11.42 NOT GIVEN FAIR OPPORTUNITY TO LITIGATE
2006-CA-000970
NOT PUBLISHED: 87
DATE RENDERED: 6/8/2007

WORTHINGTON V. COM.
CRIMINAL: RCR 11.42
2006-CA-001337
NOT PUBLISHED: 70
DATE RENDERED: 6/8/2007

HINKLE V. KENTUCKY RETIREMENT SYSTEMS
EMPLOYMENT: REVIEW OF AGENCY FINDINGS; REQUEST FOR ACCOMMODATIONS FOR DISABILITY
2006-CA-001263
NOT PUBLISHED: 112
DATE RENDERED: 6/8/2007

PRATHER V. PROVIDIAN NATIONAL BANK
EVIDENCE: AUTHENTICATING DOCUMENTS
BUSINESS: CONTRACT BREACH AND IMPLIED COVENANT OF GOOD FAITH
2006-CA-000630
NOT PUBLISHED: 100
DATE RENDERED: 6/8/2007

THE KENTUCKY LOTTERY CORP. V. RILES
EVIDENCE:  KRE 403
EMPLOYMENT:  Constructive Discharge
TORTS:  Discrimination 
2004-CA-001053
NOT PUBLISHED: 141
DATE RENDERED: 6/8/2007

PARDUE V. PARDUE
FAMILY LAW: DOMESTIC VIOLENCE (THREATS, INJURIES TO HIMSELF)
2006-CA-001701
NOT PUBLISHED: 79
DATE RENDERED: 6/8/2007

COM. V.   G.W.F.
FAMILY LAW: NEGLECTED CHILD, PAYMENT OF DRUG TESTS 
2006-CA-002473
NOT PUBLISHED: 86
DATE RENDERED: 6/8/2007

COM. V. STOVALL
FAMILY LAW:  SSI BENEFITS IN CALCULATING CHILD SUPPORT 
2006-CA-000324
NOT PUBLISHED: 104
DATE RENDERED: 6/8/2007

STAFFORD V. METCALF
PROPERTY: REAL ESTATE, FIDUCIARIES AND CONVEYING INTEREST IN REALTY; DEED VOID AB INITIO 
2006-CA-001600
NOT PUBLISHED: 78
DATE RENDERED: 6/8/2007

SENIOR HEALTHCARE INS. & FINANCIAL SERVICES, INC. V. CLEMENTI
TORTS: STATUTORY SECURITIES FRAUD AND VICARIOUS LIABILITY 
2006-CA-001348
NOT PUBLISHED: 111
DATE RENDERED: 6/8/2007

MCWILLIAMS V. A1 SANITATION SERVICES
WORKERS COMP: FAILURE TO FILE FORM 111 DEEMS ALLEGATIONS ADMITTED IN APPLICATION; FINALITY OF ORDER; CR 54.02 AND DISMISSAL OF APPEAL
2006-CA-001690
NOT PUBLISHED: 82
DATE RENDERED: 6/8/2007

PERRY V. D.D. WILLIAMSON CO
WORKERS COMP:  SOCIAL SECURITY AGE BENEFITS
2006-CA-002645
NOT PUBLISHED: 77
DATE RENDERED: 6/8/2007

 

 

Thanks to Scott Byrd,  John Hamlet, Cherry Henault, Sam Hinkle,  Chad Kessinger,  Hays Lawson,  J. Russell Lloyd, Michelle Eisenmenger Mapes , Peter Naake,   Paul O'Bryan, Bryan Pierce,  Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's appellate decisions.