Opinion
NO. 2012-CA-000313-MR
05-17-2013
RUSSELL W. GIBSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Ellen C. Moore Versailles, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOURBON CIRCUIT COURT
HONORABLE ROBERT G. JOHNSON, JUDGE
ACTION NO. 11-CR-00039
OPINION
AFFIRMING
BEFORE: CAPERTON, MAZE, AND VANMETER, JUDGES. MAZE, JUDGE: Appellant, Russell Gibson (hereinafter "Gibson") appeals from his open conditional plea of guilty in Bourbon Circuit Court to five counts of wanton endangerment arising from a high-speed chase with police which traversed Scott and Bourbon Counties. Specifically, Gibson appeals the trial court's failure to require the Commonwealth to join these five counts with other charges arising from the same incident brought against him in Scott County. Finding no error in the trial court's denial of Gibson's motion to enforce his plea agreement, we affirm.
Background
Late on the evening of October 31, 2009, police in Georgetown, Kentucky, responded to a complaint of a vehicle driving the wrong way down Interstate 75. Shortly after receiving the complaint, an officer spotted a parked vehicle matching the description of the one seen on the interstate. The vehicle's occupant was standing outside of the vehicle. When the officer pulled behind the vehicle, its driver re-entered the car and drove away. The officer gave chase and observed the vehicle cross the centerline of U.S. 460 several times and nearly strike an occupied police vehicle. During the course of the chase, the vehicle crossed from Scott County into Bourbon County. In Bourbon County, the vehicle approached the city of Paris, where it eventually collided with the driver's side of a sport utility vehicle carrying an adult and four children. Two of the latter vehicle's occupants required medical treatment.
Following the collision, authorities identified the driver as Gibson and charged him in Scott County with: Fleeing and Evading Police; Operating a Motor Vehicle Under the Influence, Third-Offense, under Aggravating Circumstances ("DUI"); Wanton Endangerment, First-Degree; Speeding 26 Miles Per Hour Over the Speed Limit; Reckless Driving; and Wanton Endangerment of a Police Officer. Following a preliminary hearing, the trial court bound the case to the grand jury, but found no probable cause for the Speeding charge, as well as the two Wanton Endangerment charges for lack of venue because they occurred in Bourbon County. Despite the preliminary finding that the three above charges occurred in Bourbon County, the Commonwealth presented all of the charges to the Scott County grand jury, who returned indictments on five of the six. The grand jury returned no true bill on the charge of wanton endangerment of a police officer.
On March 1, 2010, Gibson pled guilty pursuant to North Carolina v. Alford to the charges of Fleeing and Evading and DUI. As was noted on the plea form, the charges of wanton endangerment, reckless driving and speeding were dismissed by the Commonwealth. Gibson was sentenced to two years' imprisonment and eventually received parole in July of 2010.
On May 1, 2011, a grand jury sitting in Bourbon County indicted Gibson on five counts of wanton endangerment stemming from his collision with the vehicle carrying the adult and four children during the October 2009 chase which was the subject of the Scott County charges. On November 2, 2011, Gibson filed a Motion to Enforce the Scott County Plea Agreement, arguing that the terms of that agreement precluded the Commonwealth from bringing the wanton endangerment charges in Bourbon County. The trial court denied Gibson's motion, finding that the respective events in Scott and Bourbon Counties were distinct and the Commonwealth could therefore bring charges in Bourbon County which stemmed from conduct in Bourbon County. Following the trial court's ruling, Gibson entered a conditional plea of guilty to the five counts of wanton endangerment and reserved his right to appeal the trial court's denial of his motion. Under the conditional plea, Gibson was denied probation and sentenced to three years' incarceration, suspending the sentence until conclusion of the present appeal which followed.
Standard of Review
We first review the trial court's findings of fact under the clearly erroneous standard. Kentucky Rules of Civil Procedure ("CR") 52.01; see also Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982). Thus, we will disturb the trial court's decision only "if it is not supported by substantial evidence, which is evidence sufficient to induce conviction in the mind of a reasonable person." Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky. App. 2002) (overruled on other grounds). Additionally, we conduct a de novo review of the trial court's application of the law to the established facts to determine whether its decision to deny the motion was correct as a matter of law. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004); Commonwealth v. Brooks, 388 S.W.3d 131 (Ky. App. 2012). We therefore afford no deference to the trial court's application of the law to the present facts. Id.
Analysis
Kentucky Revised Statutes (KRS) 452.550 states, "[w]here an offense is committed partly in one and partly in another county, or if acts and their effects constituting an offense occur in different counties, the prosecution may be in either county in which any of such acts occurs." Gibson asks this Court to hold that KRS 452.550 required all offenses associated with Gibson's conduct that day, including the five counts of wanton endangerment arising in Bourbon County, to be brought in the Scott County prosecution. In doing so, Gibson asks us to assume that wanton endangerment is a crime which can be, or is, part of a continuous course of conduct. However, this Court has held the contrary, and so we must again.
In Hash v. Commonwealth, 883 S.W.2d 892 (Ky. App. 1994), authorities in Tennessee prosecuted Hash for reckless endangerment and DUI following a high-speed chase which began in Kentucky and ended in Tennessee. Following his conviction for these crimes, authorities in Kentucky charged Hash with two counts of wanton endangerment for nearly striking two vehicles while still in Kentucky. Hash argued that Kentucky was precluded from prosecuting its charges because he had already been convicted in Tennessee for the same event. This Court disagreed, stating, "[the wanton endangerment statute] was designed to protect each and every person from each act coming within the definition of the statute. It is not a statute designed to punish a continuous course of conduct." Hash, 883 S.W.2d at 894.
Our analysis in Hash proves helpful to the present question regarding KRS 452.550 and the nature of the charge of wanton endangerment. As with the Appellant in Hash, "[t]he fallacy of [Robertson's] argument is that wanton endangerment is not susceptible to the single impulse or act analysis." Hash, 883 S.W.2d at 894. The Bourbon County charges of wanton endangerment were based on Gibson's conduct in Bourbon County when he drove his vehicle into another which held an adult and four children. The Scott County charge of wanton endangerment was for Gibson's conduct which endangered at least one motorist in that county. Therefore, Gibson's single act of wanton endangerment in Scott County and his five acts of wanton endangerment in Bourbon County are distinguishable events.
Furthermore, because the wanton endangerment charges are distinguishable and cannot be part of a "continuous course of conduct," the charges were neither "committed partly in one and partly in another county," nor did their "effects constituting an offense occur in different counties." Simply put, KRS 452.550 did not require the Bourbon County charges to be brought along with those in Scott County.
In addition to asserting that KRS 452.550 required dismissal of the Bourbon County counts of wanton endangerment, Gibson argues that the Commonwealth was precluded from bringing these counts under the conditions of his plea agreement in Scott County. We disagree. Our Supreme Court has stated that the pre-trial preclusion of future prosecution by a trial court must be necessitated by underlying substantive law and is not valid simply because it is arguably done by order of a court. Gibson v. Commonwealth, 291 S.W.3d 686, 691 (Ky. 2009). Also, "[c]ourts have recognized that accepted plea bargains are binding contracts between the government and defendants." Elmore v. Commonwealth, 236 S.W.3d 623, 626 (Ky. App. 2007) (citation omitted). "In the absence of ambiguity, a written instrument will be enforced strictly according to its terms." Frear v. P.T.A. Industries, Inc., 103 S.W.3d 100 (Ky. 2003). With these basic tenants of contract law in mind, we briefly examine the four corners of the 2010 plea agreement offered by the Commonwealth and signed by Gibson in Scott County.
We find no ambiguity in the 2010 plea agreement regarding dismissal of the wanton endangerment charge and what conditions may have accompanied that dismissal. The plea agreement lists the charges, as they were brought against Gibson and as they were adjudged by the trial court under the plea. The charges of Wanton Endangerment, Reckless Driving and Speeding counts were listed as "dismissed." Contrary to Gibson's repeated assertions on appeal, at no point did the plea agreement state that dismissal of these charges precluded their future prosecution, nor does the agreement state that the Commonwealth could not charge Gibson with any further crimes which occurred on the same day. Gibson contends that, "[a] reasonable person could conclude that the Scott and Bourbon County charges had been resolved in the first proceeding in Scott County." However, what a reasonable person could conclude is not dispositive of whether an agreement regarding future prosecution existed. Rather, we must look exclusively to the plea agreement, where we find no mention of future prosecution. Therefore, no ambiguity regarding the purpose of the plea or the conditions attached to it exists. On the face of the agreement, Gibson's plea of guilty was not offered in exchange for any agreement not to prosecute the distinct charges of wanton endangerment brought in Bourbon County.
Furthermore, even if an ambiguity did exist, and we could examine extrinsic evidence regarding the terms of the plea, a key part of such evidence is unavailable to this Court. We are unable to examine the video from the 2010 Scott County hearing at which the conditions of the plea agreement may have been discussed, as it was not included in the record on appeal. Hence, we find insufficient basis for Gibson's argument that his 2010 plea agreement regarding the wanton endangerment charge in Scott County was intended by both parties to preclude prosecution of other wanton endangerment charges in Bourbon County. Gibson provides no evidence of such an agreement other than the plea agreement document itself. The trial court did not abuse its discretion in denying Gibson's motion on this basis.
It is the responsibility of the Appellant to ensure the record, including items not in the custody of the official who certifies the record, is transmitted to the Court of Appeals. See Belk-Simpson Co. v. Hill, 288 S.W.2d 369 (Ky. 1956); Ventors v. Watts, 686 S.W.2d 833 (Ky. App. 1985).
Finally, Gibson urges us, in the alternative, to adopt a rule of "compulsory joinder," as has been done in the Model Penal Code and by the highest courts of Colorado and Pennsylvania. The goal of such a rule, according to the Model Penal Code, is to prevent "successive prosecutions based on the same conduct." Model Penal Code § 1.08 . While it is our opinion that the incidents of wanton endangerment in Scott and Bourbon counties were distinct and therefore perhaps not subject to a compulsory joinder rule, it is also not our place to adopt such a rule now. Furthermore, we see no basis, and Gibson provides no support, for his conclusory statement that "failure to adopt the rule would violate [his] due process rights . . ."
The law in Kentucky is well established in its adoption of an analysis for the joinder and severance of related offenses. The Kentucky Rules of Criminal Procedure give the Commonwealth "the discretion to join, in a single prosecution, all those offenses which a defendant allegedly committed in a closely connected series of events and time. See RCr 6.18 and RCr 9.16. Conversely, the rules permit the defendant to seek a severance of offenses which are joined in a common prosecution." 8 Ky. Prac. Crim. Prac. & Proc. § 15:21 (2012-2013 ed.). The permissive language of KRS 452.550 bestows similar discretion upon the Commonwealth.
Kentucky case law also favors joinder or severance based on a showing of prejudice, judicial economy and efficiency rather than by compulsion. See Brown v. Commonwealth, 458 S.W.2d 444 (Ky. 1970); Davis v. Commonwealth, 464 S.W.2d 250 (Ky. 1970); Hubbard v. Commonwealth, 633 S.W.2d 67 (Ky. 1982). This being the case, we are unwilling to usurp this clearly established rule and unilaterally strip the Commonwealth and the courts of the discretion this state, its legislature and its Supreme Court has granted them. Therefore, we agree with the trial court when it states that, "[u]nless or until the legislature enacts a statute mandating the joinder of offenses based on the same conduct or episode, the Commonwealth has the discretion to bring separate indictments in separate counties . . ." Such discretion is permitted under the law, and therefore, the trial court did not abuse its discretion in denying Gibson's request to adopt such a rule.
The ruling of the Bourbon Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Ellen C. Moore
Versailles, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky