KYSC - Mitchell - Hybrid Representation/Jury Instruction/Misleading Photos

Dwayne Mitchell v. Commonwealth- KSC, 2/20/2014, to be published

The Kentucky Supreme Court reversed and remanded, finding that the trial court violated Mr. Mitchell’s right to hybrid representation by denying him the right to represent himself on a pre-trial motion while still retaining the services of counsel for the remainder of the proceedings. The trial court further erred in providing jury instructions that omitted an essential element of first-degree robbery and erroneously allowing the introduction of misleading photographs.  

Tom Ransdell and Kate Benward of DPA Appeals represented Mr. Mitchell on appeal.

Contributed by Karen Maurer

KYCOA - Jones - Restitution held open

Thomas Jones v. Commonwealth, 2012-CA-001827 [NOT TO BE PUBLISHED] 

Thomas Jones pled guilty to sexual contact with a then fifteen year old girl.  A result of this contact was that the girl contracted herpes.  The trial court, when ordering restitution, attempted to “hold open” the restitution order, and allow the girl to petition the court for additional restitution if her circumstances changed.  The Kentucky Court of Appeals held that this violated KRS 532.033 because it was not a “set and definite amount.”   

John Landon represented Mr. Jones on Appeal; Margot Merrill preserved this issue in the trial court.

Practice tip: Object and appeal when a trial court allows a victim to petition for more restitution in the future

Contributed by Karen Maurer

KYCOA - Brown - Protective Sweep

Brown v. Commonwealth – COA, 2/14/14, reversing and remanding, to be published

Police received information that Appellant and two other men had assaulted a woman with a handgun and retreated to Appellant’s home.  Police also knew that Appellant had an AK-47 assault rifle inside the house.  Police went to the residence and ordered the men out.  The three men emerged with two women and informed the officers no one remained inside.  Officers conducted a protective sweep of the house and found guns, marijuana, and drug paraphernalia.  The Court found that the officers did not  have articulable information to reasonably believe someone remained inside the home.  A general concern that someone might still be in there did not justify the search.

Steve Buck represented Mr. Brown on appeal.  Chris Tracy represented Appellant in Fayette Circuit Court.

Contributed by Karen Maurer

KYCOA - Wilson - inevitable discovery rule

Wilson v.Commonwealth- COA, 2/7/14, to be published- 

A cell phone, GPS, .380 ammunition, and a .380 caliber handgun were stolen from a man’s car.  In tracking the cell phone on “Mobile Me,” the officers were led to a certain apartment complex.  While officers called the phone and walked along the back of the apartment complex listening for the cell phone to ring, an officer saw five bullets on a patio chair.  The bullets were retrieved as well as a GPS unit discovered in a trash can on the patio; the lid on the trash can was askew. In applying for a search warrant, the officers referenced seeing the ammunition, but concerned with the propriety of the way the GPS unit was discovered, did not reference the GPS in the affidavit for the search warrant.  

While the Court of Appeals found the evidence was illegally seized, it refused to reverse based on the “inevitable discovery rule.”  As the Court stated, “Because we have concluded that the record supports the trial court’s conclusion that the officers had probable cause to obtain a search warrant to search the apartment, both the record and commonsense dictate that the police would have inevitably recovered the suppressed evidence. Consequently, even though this evidence was illegally seized, under the inevitable discovery rule, there was no error. Hence, the items do not require suppression.”  

Karen Maurer of DPA Appeals represented Mr. Wilson on appeal.  Brad Clark of the Lexington trial office represented Mr. Wilson below.  

Contributed by Emily Rhorer 

Judicial Branch implements new expungement certification process

Press Release from AOC -

FRANKFORT, Ky. -- Beginning Jan. 1, 2014, state law requires every petition for expungement in Kentucky to include a certificate of eligibility for expungement. Under KRS 431.079, individuals who wish to have their criminal records expunged must complete the expungement certification process to determine if they are eligible for expungement. The certification provides judges and prosecutors with the most current and complete information available on a individual’s record.

KRS 431.079 is the enactment of Senate Bill 78, which was passed during the regular session of the 2013 General Assembly.

The Kentucky State Police are overseeing this process in conjunction with the Administrative Office of the Courts. Under the new law, both agencies must run criminal record reports on the person petitioning for the expungement. The KSP will then certify the eligibility of the expungement request.

Individuals can request certification through the AOC by registering online, by U.S. mail or in-person at the AOC Records Unit drive-thru window at 1001 Vandalay Drive in Frankfort. The certification costs $40 and the process takes up to 60 days. Those who obtain an expungement certification may then file a petition for expungement with the Office of Circuit Court Clerk in the county where the original charge was filed. The petition must be filed before the certification expires in 30 days.

Under the new process, judges will receive an expungement certification packet along with each petition for expungement. The certification ensures that judges can take into account an individual’s most up-to-date and comprehensive record information when determining whether to grant an expungement.

Individuals can visit the Kentucky Court of Justice website at http://courts.ky.gov/expungement to learn more about the expungement certification process. The site provides a list of frequently asked questions and describes the steps to submit a request online, in-person or by U.S. mail. The benefits for those applying electronically include email notifications throughout the process, the ability to check on the status of the certification online and the ability to download the certification packet as soon as it becomes available.

KYCOA - Childress - Voiding Felony Conviction

Childress v. Commonwealth, COA, 1/24/14, to be published

 

The trial court erred by relying on the old 2011 version of KRS 218A.275(8). Under the old version only misdemeanors could be set aside. But under the 2012 version of KRS 218A.275(8) effective July 12, 2012, first-time convictions for possession of controlled substances—including felony convictions--may set aside and voided upon satisfactory completion of treatment, probation, or other sentence. The case was remanded for further proceedings.

 

Contributed by Susan Balliet

KYCOA - Johnson - Pretrial Diversion

Johnson v. Commonwealth, COA, 1/10/14, not to be published

 The trial court granted pretrial diversion for a period of three years with the condition that Defendant would not commit another offense during the period of pretrial diversion. The pretrial diversion ended in Oct of 2009.  In 2010, the defendant was convicted of two drug offenses.  The trial court refused to list the initial charges as “dismissed-diverted” because the defendant committed offenses after the pretrial diversion period ended. The Court of Appeals reversed because the defendant did not commit any offense during the period of diversion.  

Johnson was represented on appeal by Shannon Dupree Smith, and at trial by Michael McIntire.

Contributed by Emily Rhorer