Opinion
NO. 2016-CA-000915-MR
05-05-2017
COMMONWEALTH OF KENTUCKY APPELLANT v. GREGORY R. PEYTON APPELLEE
BRIEF FOR APPELLANT: Andy Beshear Attorney General of Kentucky Dorislee Gilbert Special Assistant Attorney General Louisville, Kentucky BRIEF FOR APPELLEE: NO BRIEF FILED
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HON. AUDRA J. ECKERLE, JUDGE
INDICTMENT NO. 14-CR-02854 OPINION
VACATING
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BEFORE: JONES, J. LAMBERT, AND MAZE, JUDGES. JONES, JUDGE: The Commonwealth appeals from the Jefferson Circuit Court's order of dismissal with prejudice, entered May 24, 2016. This order followed the circuit court's earlier dismissal without prejudice, entered February 25, 2016. Because the circuit court exceeded its authority to grant the motion to dismiss with prejudice, we vacate the circuit court's order.
As a preliminary matter, we note the appellee, Gregory Peyton, has not filed a brief in this case. When an appellee declines to file a brief, the reviewing court may assign penalties as provided in Kentucky Rule of Civil Procedure (CR) 76.12(8)(c):
[T]he court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.Furthermore, "[t]he decision as to how to proceed in imposing such penalties is a matter committed to our discretion." Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007) (citations omitted). Here, we have elected to accept the Commonwealth's statement of the facts and issues as correct.
The facts of the case begin with the Jefferson County grand jury indicting Peyton for two counts of trafficking in methamphetamine. His trial was scheduled for February 23, 2016. On that date, however, the circuit court heard evidence and arguments with regard to Peyton's motion to suppress evidence. The circuit court orally granted the motion to suppress and entered an order to that effect the same day. The next day, the Commonwealth moved the court to dismiss the indictment without prejudice. Peyton did not object to the motion, but indicated he would rather the court dismiss the case with prejudice. The circuit court agreed to dismiss the case without prejudice, but in its order stated, "Defendant may renew his request to dismiss with prejudice if the Commonwealth does not pursue re-indictment within a reasonable time."
Kentucky Revised Statutes (KRS) 218A.1412, charged here as a Class C felony. --------
Over two months later, Peyton filed a motion to dismiss the indictment with prejudice, on grounds that the Commonwealth's Attorney's office in Jefferson County had shown no desire to re-indict him. Peyton also stated it was unfair that he was facing charges in Butler County based upon the facts of this indictment, and therefore he should be granted a dismissal with prejudice. The circuit court granted the motion for dismissal with prejudice, over the Commonwealth's objection, and entered an order to that effect on May 24, 2016. This appeal follows.
The Commonwealth contends the circuit court violated the strong separation of powers found in Kentucky's constitution when it dismissed a criminal case with prejudice over the objections of the Commonwealth. This argument was presented to the circuit court and is thus properly preserved for our review. An appellate court reviews the application of constitutional principles de novo. Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky. App. 2009) (citations omitted).
The Commonwealth's argument before the circuit court relied upon Gibson v. Commonwealth, 291 S.W.3d 686 (Ky. 2009), in which the Kentucky Supreme Court pointed out the inherent peril associated with a court dismissing an indictment with prejudice:
Concomitantly, subject to rare exceptions usually related to a defendant's claim of a denial of the right to a speedy trial, the trial judge has no authority, absent consent of the Commonwealth's attorney, to dismiss, amend, or file
away before trial a prosecution based on a good indictment.Id. at 690 (quoting Hoskins v. Maricle, 150 S.W.3d 1, 13 (Ky. 2004)). Based on the reasoning in Hoskins, the Gibson court went on to closely examine the limits of judicial power and found "the executive branch has exclusive authority and absolute discretion in deciding whether to prosecute a case." Id. This ultimately led the Kentucky Supreme Court to hold that "[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." Id. at 691.
The exceptions to this general prohibition are very few. Gibson provides examples of the most notable exceptions, which generally involve a speedy trial violation, a mistrial after jeopardy attaches, or instances of "outrageous government conduct." Id. at 690 (citation omitted). None of these apply to the case sub judice. Here, the circuit court initially granted a motion to dismiss without prejudice, but imposed its own conditions within the order, requiring the Commonwealth to "pursue re-indictment within a reasonable time." We believe such a condition constitutes an improper extension of the court's authority. "[A] judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them." Hoskins, 150 S.W.3d at 20 (quoting United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992)) (emphasis added). The circuit court overstepped its boundaries in this case when it dismissed the indictment with prejudice. Accordingly, we vacate the Jefferson Circuit Court's order of dismissal with prejudice, entered May 24, 2016.
ALL CONCUR. BRIEF FOR APPELLANT: Andy Beshear
Attorney General of Kentucky Dorislee Gilbert
Special Assistant Attorney General
Louisville, Kentucky BRIEF FOR APPELLEE: NO BRIEF FILED