Opinion
NO. 2013-CA-000771-MR
03-27-2015
ARTHUR N. PRUITT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: J. David Niehaus Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA MCCORMICK BISIG, JUDGE
INDICTMENT NO. 11-CR-001573
OPINION
AFFIRMING
BEFORE: COMBS, J. LAMBERT, AND STUMBO, JUDGES. J. LAMBERT, JUDGE: Arthur N. Pruitt has appealed from the final judgment of the Jefferson Circuit Court convicting him of second-degree assault and for being a second-degree persistent felony offender, and sentencing him to twelve years' imprisonment. Because Pruitt's claims of error hinge of the validity of binding precedent from the Supreme Court of Kentucky, we affirm the judgment on appeal.
In May 2011, Pruitt was indicted on charges of second-degree assault, intimidating a participant in the legal process, and for being a second-degree persistent felony offender (PFO II). The assault charge arose from an incident on March 17, 2011, when he allegedly injured Vonciele Moore with an iron. The intimidation charge arose from an incident on March 29, 2011, when he allegedly used physical force or a threat to induce Ms. Moore from participating in the legal proceedings against him. The PFO II charge was based upon his 2005 conviction for first-degree possession of a controlled substance (cocaine), for which he received a one-year sentence. Following a jury trial in October 2012, the circuit court entered a judgment April 2, 2013, convicting Pruitt of second-degree assault and for being a PFO II, dismissed the intimidation charge, and imposed an eight-year sentence on the assault conviction, enhanced to twelve years by the PFO II conviction. This appeal now follows.
As Pruitt pointed out in his appellate brief, the certified record does not contain the court's jury instructions, although Pruitt's proposed instructions were include in the envelope of exhibits. The record also does not contain a trial order, if one was entered.
On appeal, Pruitt raises two issues; namely, 1) whether the circuit court erred in granting the Commonwealth nine peremptory challenges; and 2) whether the two prior convictions upon which his PFO II conviction was based were valid. Neither issue was preserved below, and Pruitt seeks plain error review pursuant to Kentucky Rules of Criminal Procedure (RCr) 10.26.
For his first argument, Pruitt contends that the circuit court's grant of nine peremptory challenges to the Commonwealth was in error because both RCr 9.04 and Kentucky Revised Statutes (KRS) 29A.290(2)(b), upon which this grant of challenges was made, are invalid and in violation of § 28 of the Kentucky Constitution. On the Commonwealth's motion, and with agreement from Pruitt, this Court placed the appeal in abeyance pending a final decision by the Supreme Court of Kentucky in a case involving the same issue. The Court returned the appeal to the active docket after the Supreme Court's decision in Glenn v. Commonwealth, 436 S.W.3d 186 (Ky. 2013), reh'g denied (Feb. 20, 2014), became final. The Commonwealth, in its response brief, argued that the decision in Glenn was dispositive, while Pruitt argued in his reply brief that Glenn did not control on the right to prosecutorial peremptory challenges.
In Glenn, the Supreme Court addressed the issue of whether RCr 9.40 exceeds the authority granted to the Supreme Court in § 116 of the Kentucky Constitution.
We begin with the premise that the separation of powers provisions of our Kentucky Constitution endow this Court with a unique mandate not present in our federal Constitution. See Ky. Const. §§ 27, 28, 116. We alone are the final arbiters of our rules of "practice and procedure." Ky. Const. § 116. With these principles in mind, we now turn to Appellant's argument that the question of peremptory strikes is one of substantive law and is, therefore, beyond the "practice and procedure" authority granted to this Court under § 116. Appellant maintains that § 28 of the Kentucky Constitution grants exclusive power to the General Assembly over issues of substantive law. Accordingly, Appellant asserts that the number of peremptory challenges, if different from the common law, must be expressly established by the General Assembly. We disagree.
Our constitutional mandate in this instance is unequivocal. The creation, implementation, or amendment of our Rules of Criminal Procedure provides no basis for "joint effort," nor any other constitutional quandary or quagmire. Cf. Mullins v. Commonwealth, 956 S.W.2d 210, 211 (Ky. 1997); Comm., Cabinet for Health and Family Services v. Chauvin, 316 S.W.3d 279 (Ky. 2010). Thus, we affirm not only the substance of RCr 9.40, but also this Court's authority to promulgate that rule and all other rules of practice and procedure in the Commonwealth.Glenn, 436 S.W.3d at 188.
Pruitt argued in his reply brief that Glenn "overlooks two very important facts. The first is that KRS 29A.290(2)(b) also purports to govern prosecutorial challenges. The second is that prosecutors have never had a common law right to challenge peremptorily." In other words, Pruitt is asserting that the Supreme Court's holding in Glenn is incorrect.
The Court of Appeals, as an intermediate appellate court, cannot overturn precedent as set forth by the Supreme Court of Kentucky, which is what Pruitt is requesting us to do. "The Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court." Rules of the Supreme Court (SCR) 1.030(8)(a). See also Fields v. Lexington-Fayette Urban County Gov't, 91 S.W.3d 110, 112 (Ky. App. 2001) (stating that the Court of Appeals is without authority to overturn a decision of the Supreme Court of Kentucky even if it were inclined to do so). Therefore, this Court does not have the authority to overturn the Supreme Court's ruling in Glenn.
Pruitt's second argument addresses the validity of the prior convictions upon which his PFO II conviction was based. He asserts that because the felony cases were commenced by an information rather than the return of an indictment, they are void pursuant to § 12 of the Kentucky Constitution, and this requirement is not subject to waiver by agreement.
As the Commonwealth points out, the Supreme Court has addressed and rejected this argument in Malone v. Commonwealth, 30 S.W.3d 180 (Ky. 2000). The Supreme Court framed the issue as "whether a circuit court has authority to adjudicate felony charges if the defendant waives his right to be prosecuted by indictment. That is, whether the constitutional requirement of an indictment by a grand jury in a prosecution for a felony preempts a court rule which permits a prosecution upon information if the accused so elects." Id. at 181-82. The Court explained:
RCr 6.02 of the 1981 amendments to the Kentucky Rules of Criminal Procedure enable the defendant to waive indictment and consent instead to be proceeded against by information. The provision that no person shall be proceeded against by information for an indictable offense is part of the Bill of Rights and not mentioned in the judicial article. It is reasonably clear that this provision is not jurisdictional, rather it is for the protection of the accused and hence subject to waiver.Id. at 183. The Court went on to recognize that "[f]ederal courts have held that a similar provision in the Fifth Amendment is a personal right which may be waived. The constitutionality of the waiver provision is thoroughly settled. This is quite analogous to other situations in which a defendant is allowed to waive procedural protections provided for his or her benefit." Id. (internal citations omitted). The Court concluded as follows:
Section 12 of the Kentucky Constitution providing for accusation of felony offenses by indictment is itself a matter of substantive due process, but the manner of waiving that right and of consenting to be prosecuted instead by information is a matter of procedural due process. Substantive due process is satisfied by giving the accused written notice of the elements of the offense with which he is charged. Consequently, there is no constitutional barrier to such waiver being authorized by court rule.Id. at 184.
Waiving the formalities of a grand jury indictment is analogous to waiving the right of trial by jury in criminal cases. Both are personal rights which may be waived. Short v. Commonwealth, Ky., 519 S.W.2d 828 (1975).
Pruitt argues that the Supreme Court's holding in Malone is incorrect as a matter of law and is contradicted by §§ 1 through 25 of the Kentucky Constitution. As with his first argument, this Court does not have the authority to overturn binding precedent of the Supreme Court. Therefore, we may not reverse the Supreme Court's holding in Malone.
For the foregoing reasons, the judgment of conviction of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: J. David Niehaus
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky