Opinion
2023-CA-0528-MR
07-19-2024
COMMONWEALTH OF KENTUCKY APPELLANT v. KEYONTAE LEJUAN PARRIS APPELLEE
BRIEF FOR APPELLANT: Daniel Cameron Attorney General of Kentucky Frankfort, Kentucky Jason B. Moore Special Assistant Attorney General Louisville, Kentucky BRIEF FOR APPELLEE: Rob Eggert Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE ANNIE O'CONNELL, JUDGE ACTION NO. 21-CR-002421
BRIEF FOR APPELLANT: Daniel Cameron Attorney General of Kentucky Frankfort, Kentucky Jason B. Moore Special Assistant Attorney General Louisville, Kentucky
BRIEF FOR APPELLEE: Rob Eggert Louisville, Kentucky
BEFORE: CALDWELL, CETRULO, AND A. JONES, JUDGES.
OPINION
CALDWELL, JUDGE
The Commonwealth appeals from the Jefferson Circuit Court's order dismissing the indictment against Keyontae Lejuan Parris ("Parris") with prejudice. Having reviewed the record, the trial court's order, and the parties' briefs, we agree the circuit court lacked authority to designate the dismissal as "with prejudice." Accordingly, we vacate and remand the order of the circuit court.
FACTS
This appeal arises from a pretrial order entered following the Commonwealth's voluntary dismissal of an indictment against Appellee Parris. On April 4, 2023, the Commonwealth moved the Jefferson Circuit Court, per RCr9.64, for dismissal of Parris' charges of manslaughter in the second degree, reckless driving, and speeding more than 26 miles over the speed limit. A grand jury had indicted Parris on November 9, 2021. The case was scheduled for trial on the day the Commonwealth moved for dismissal, though a jury had not yet been empaneled.
Kentucky Rules of Criminal Procedure.
Earlier that morning, proceedings began with the circuit court inquiring whether the parties were prepared to commence the trial. The Commonwealth advised it was not, citing an unavailability of witnesses, and made an oral motion for a continuance. Pressed by the court on the matter of witness availability, the Commonwealth indicated it had been unable to serve important witnesses with subpoenas for their testimony and cited to no prior continuances occurring in support of its motion. Parris, by his counsel, objected to a continuance, arguing the Commonwealth had made an inadequate showing of its efforts to serve the witnesses. He additionally argued he had lost his job as a corrections officer and was unable to pursue a career in law enforcement with the pending charges and did not wish to delay the matter.
Before ruling, the circuit court gave the Commonwealth opportunity, which was declined, to supplement the record. From the bench, the circuit court denied the motion for a continuance. In response, the Commonwealth announced its motion to dismiss the indictment. Parris made no objection to this motion. The circuit court granted the motion with no discussion on the record regarding the dismissal being designated with or without prejudice.
Upon its entry, on April 7, 2023, the trial court's written order indicated "this matter is DISMISSED WITH PREJUDICE[.]" (Emphasis in original.) Thereafter, on April 17, 2023, the Commonwealth filed a written motion to alter, amend, or vacate, requesting the trial court rescind the designation of "with prejudice." For reasons not apparent in the record, the Commonwealth's attorney who filed this motion was not present at its hearing which took place April 24, 2023. The Commonwealth's attorney who did attend indicated to the court he had "no notes" on the motion. So, the circuit court was provided no oral argument or explanation as to the substance of the motion from the Commonwealth during the brief hearing. Counsel for Parris attended the hearing and voiced objection, citing to the matters concerning the Commonwealth's failure to serve subpoenas. The circuit court denied the Commonwealth's motion to alter, amend, or vacate by order entered April 24, 2023. This appeal follows.
On appeal, the Commonwealth contends the circuit court violated Kentucky's Constitution when it dismissed the criminal case with prejudice by exceeding its authority under the doctrine of the separation of powers. This argument was presented to the circuit court by written motion and properly preserved for our review. Upon review, we agree with the Commonwealth and therefore vacate the circuit court's order.
STANDARD OF REVIEW
The application of constitutional principles in a trial court order is reviewed de novo. Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky. App. 2009) (citations omitted).
ANALYSIS
As a general proposition, absent some impact upon the constitutional rights of the defendant, a trial court does not have authority to preclude reindictment in a pretrial order of dismissal, where doing so is without the consent of the Commonwealth. See Gibson v. Commonwealth, 291 S.W.3d 686, 691 (Ky. 2009) ("A judge cannot, simply by the exercise of his own discretion however well founded it may be, preclude future prosecution with a designation of a voluntary dismissal as 'with prejudice,' in the absence of substantive law justifying same."); see also Keeling v. Commonwealth, 381 S.W.3d 248, 256 (Ky. 2012) (emphasis omitted) ("[A] trial court's dismissal of a criminal case cannot be 'with prejudice' without the consent of the Commonwealth unless it is one of those rare situations in which the underlying substantive law precludes further adjudication - e.g., violations of the right to a speedy trial, a mistrial that occurs after jeopardy attaches, or severe cases of prosecutorial misconduct."); Alexander v. Commonwealth, 556 S.W.3d 6, 9 (Ky. App. 2018) ("A trial court has no discretion to designate a dismissal as one with prejudice absent substantive law barring future prosecution.").
This limitation in a court's discretion is a boundary set by the doctrine of separation of powers, specifically articulated in our state Constitution. Gibson, 291 S.W.3d at 689-91. Outside of unusual exceptions, an attempt by the judiciary to preclude further prosecution of a criminal defendant before a trial is an invasion into powers constitutionally granted as exclusive to the executive branch ("the Commonwealth"). Id.
Our Supreme Court examined the subject at length in Gibson, 291 S.W.3d 686. There, the circuit court had granted a motion, without hearing, by the Commonwealth to dismiss an indictment "without prejudice" on the eve of a scheduled trial. Id. at 687. The dismissal apparently resulted from the Commonwealth's case having seriously deteriorated with reindictment appearing unlikely. Id. The defendant filed a motion to amend the order of dismissal, requesting the designation of "with prejudice." Id. at 687-88. The appeal was on denial of this motion, the defendant arguing she was prejudiced by the dismissal because of her inability to demand trial of the matter to "clear her name" or to seek expungement of the charge from her record. Id. at 688. This Court affirmed the circuit court's order, reasoning that, by virtue of the doctrine of the separation of powers, the circuit court was without authority to grant the defendant's request to designate the pretrial dismissal as "with prejudice." Id.
In affirming this Court, our Supreme Court examined the role of each branch of government under the constitutional doctrine of the separation of powers within the context of criminal prosecutions. Id. at 689-91 (citing KY. CONST. §§ 27 and 28). The judiciary's role includes holding power to conduct criminal trials, adjudicate guilt, and to impose sentence. Id. at 690 (citing Hoskins v. Maricle, 150 S.W.3d 1, 11-12 (Ky. 2004)). However, as to whether a case will be prosecuted, exclusive authority and absolute discretion rests with the Commonwealth. Id. at 690 (citing Hoskins, 150 S.W.3d at 13).
The Commonwealth argues the circuit court's order was a clear constitutional violation of the separation of powers as articulated by our Supreme Court in Gibson, 291 S.W.3d 686. It requests we vacate the portion of the order indicating "with prejudice" and remand the matter "with directions for the trial court to enter an order dismissing the underlying indictment without prejudice."
Parris acknowledges Gibson but argues his case falls into an exception where a court may preclude subsequent indictment by pretrial order. He requests the trial court's order be affirmed as a proper sanction to the Commonwealth for violating his right to a speedy trial. He argues the sixteen-month delay between his indictment and the scheduled trial, as well as other actions by the Commonwealth, including failure to serve witnesses with subpoenas, failure to attend or forward notes to a motion hour, and allegations concerning tendering of discovery culminated in violation of his speedy trial rights. As a result, Parris' argument goes, the circuit court's order precluding subsequent prosecution remained within the boundaries of its constitutional power.
One difficulty with Parris' argument is that the circuit court's order makes no reference to any allegation of a speedy trial violation. The written order gives no indication of a reason for designating the dismissal "with prejudice" at all. Upon a careful reading of Parris' argument, he stops short of asserting speedy trial violations were, in fact, the basis of the circuit court's order. Nor does he cite to any instance on the record where he brought any of his central allegations regarding the Commonwealth to the circuit court's attention. Reviewing the record, there is no indication of Parris explicitly asserting his rights to a speedy trial had been violated prior to responding in this appeal. Neither is there any indication of him complaining of a delay in receiving discovery material or arguing he had been prejudiced from same.
From this record, the reason for the circuit court's designation of "with prejudice" is unclear, as is the circuit court's reasoning for denying the Commonwealth's motion to alter, amend, or vacate. Parris would have it the designation was intended as a sanction to the Commonwealth for lack of candor concerning the failure to subpoena witnesses. The Commonwealth's inadequate showing of its efforts, per RCr 9.04, does appear to have been the basis for the circuit court's denial of the Commonwealth's motion to continue. However, no discussion or reference to this issue by the circuit court makes clear this was its reasoning for designating the dismissal as "with prejudice."
This Court recognizes the circuit court was well within its discretion to deny the Commonwealth's motion to continue the trial.
If the circuit court's reasoning for designating the dismissal to preclude further prosecution was a perceived speedy trial violation, it was required to make specific findings on the record for a reviewing court. Clark v. Commonwealth, 608 S.W.3d 175, 178 (Ky. App. 2020). "[T]he speedy trial analysis is fact-specific and date-oriented[.]" Id. (quoting Smith v. Commonwealth, 361 S.W.3d 908, 913 (Ky. 2012)). "It is a fact intensive analysis[.]" Clark, 608 S.W.3d at 179 (quoting Stacy v. Commonwealth, 396 S.W.3d 787, 796 (Ky. 2013)). Parris' argument relies upon facts of which there is no indication the circuit court made a finding:
When matters of fact are left undetermined by the circuit court, this Court cannot determine them. When this Court attempted to do so in a similar context, the Supreme Court of Kentucky said, in Roman Catholic Diocese of Lexington v. Noble, "[T]he Court of Appeals should not have made a hypothetical decision concerning how it would have decided this case had the trial court exercised its discretion ...." 92 S.W.3d 724, 730 (Ky. 2002). "[W]e may not substitute our decision for the judgment of the trial court." R.C.R. v. Commonwealth Cab. for Human Resources, 988 S.W.2d 36, 39 (Ky. App. 1998) (citation omitted). That is as true when the circuit court makes no decision as when it does.Clark, 608 S.W.3d at 180.
The standard by which a defendant's constitutional rights to a speedy trial, under both the Federal and Kentucky constitutional provisions, are evaluated, was established by the United States Supreme Court in Barker v. Wingo. 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four-factor test requires examination of: (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) the prejudice to the defendant caused by the delay. Id. at 530, 92 S.Ct. at 2192. No particular factor is "a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Stacy, 396 S.W.3d at 795 (Ky. 2013) (quoting Barker, 407 U.S. at 533, 92 S.Ct. at 2193). Parris references the Barker factors and argues they weigh in his favor. We specifically decline to make any determinations as to the Barker factors, where there is no record of the circuit court to review on the subject.
This case is distinct from Clark, where we remanded with specific instruction for the circuit court conduct a Barker analysis. The defendant in Clark had moved to dismiss the charges specifically for violating his right to a speedy trial. 608 S.W.3d at 181. Here, there is no indication of a speedy trial allegation or anything else to trigger a Barker analysis on the part of the circuit court. Parris was not without opportunity during the pendency of his charges, including multiple pretrial conferences, to complain his right to a speedy trial was being violated.One occasion was as late as the Commonwealth's RCr 9.64 motion to dismiss indictment, where he was entitled to the opportunity to voice objections and present reasons for preferring a trial. See Gibson, 291 S.W.3d at 691. We further note nothing on the record which should have raised the issue to the attention of the circuit court without motion of the defendant.
One of these pretrial conferences does not appear on the record. Neither party alleges what occurred on April 3, 2023, before the court. The appearance is not included in the record as, according to Parris, the file was corrupted and unable to be placed in the record. We note the Commonwealth, as Appellant, has not availed itself the ability to file a narrative statement pursuant to Kentucky Rules of Appellate Procedure ("RAP") 25(A)(1).
As Parris did not originally request the Barker analysis, the circuit court need not conduct it, if a speedy trial violation was not, in fact, the circuit court's reasoning for dismissing with prejudice. Accordingly, on remand, the circuit court must conduct a Barker analysis only if its designation of the dismissal as with prejudice was for reasons of speedy trial violations. Otherwise, unless the circuit court can state underlying substantive law precluding further prosecution, it must designate the dismissal, consistent with the wishes of the Commonwealth, as without prejudice.
We make no finding here regarding waiver of the right to a speedy trial or any issue relevant to Barker; such is unnecessary. Furthermore, should the circuit court simply change the designation, Parris' constitutional rights to a speedy trial would not be without protection and remedy in subsequent proceedings.
CONCLUSION
We vacate the trial court's order and remand this matter back to the Jefferson Circuit Court for further proceedings.
ALL CONCUR.