KYSC - Melton - Jail Fees

Christopher Melton v. Comm., Kentucky Supreme Court, Not-to-be-published (2/15/2018):

Melton was charged with incest, sodomy, and first-degree sexual abuse.  At trial, he was convicted on all counts and sentenced concurrently to 33 years plus $9,375 in jail fees.  On appeal, the Kentucky Supreme Court reversed the award of jail fees due to the Commonwealth’s failure to show compliance with KRS 441.265(1), allowing jail fees as part of a county policy that establishes the true cost per diem of a stay in the local jail; the Court also reversed the sodomy and sex abuse counts for non-unanimity and remanded for an amended judgment. 

Susan Balliet represented Christopher Melton on appeal.

KYSC - Brown - Restitution

AnthonyBrown v. Comm., Kentucky Supreme Court, To-be-published (2/15/2018): 

Brown was charged with murder and convicted of second-degree manslaughter.  At trial, the court 1) awarded $7,571.51 in restitution to arguably non-victim entities who had not been named in the indictment and failed to give notice of the amount claimed or opportunity for a hearing and jury determination, 2) allowed evidence of a probation violation in the penalty phase, and 3) held that Brown’s prior drug conviction could be used to support his manslaughter conviction. 

On appeal, the Kentucky Supreme Court vacated and remanded the restitution award for a new hearing after notice to Brown regarding the victims and amounts claimed. The Court stated Brown will have an opportunity on remand to argue that a funeral home and a medical center are not “named victims” eligible under the statute. 

On remand he will also have an opportunity to demand a jury trial, which he should do in order to raise and preserve the other unresolved question raised in this appeal, whether he is guaranteed a jury trial on restitution by Section 7 of the Kentucky Constitution and CR 38.01.  

Susan Balliet represented Anthony Brown on appeal.

KYCOA - Dudley- Speedy Trial

Robert Dudley v. Commonwealth, Kentucky Court of Appeals, not to be published (12/15/2017):

Mr. Dudley was arrested on September 9, 2004, and indicted in December 2004. However, he was not tried until 2014. In 2016, the Court of Appeals remanded for the trial court to hold a hearing and make findings as to whether Mr. Dudley’s right to a speedy trial had been violated. The trial court found Mr. Dudley’s right to a speedy trial had not been violated. Specifically, the court found that although a nearly 10-year delay between arrest and trial was presumptively prejudicial, Mr. Dudley was responsible for the delay because he had not returned to Kentucky to answer to his charges.

A panel of the Court of Appeals disagreed. The panel cited the following facts showing that the delay was caused not by Mr. Dudley, but by government negligence: 1) Circuit Court personnel were aware that Dudley was not present at his arraignment in December 2004 because he was in custody in Ohio; 2) neither Dudley or his then-attorney was made aware that he had been indicted; 3) while a bench warrant was issued on December 20, 2004, that warrant was not served on Dudley until 2014; and 4) even though the government was aware that Dudley was in custody in Ohio, neither a detainer nor a holder was filed until 2012. When Dudley was informed about the holder in 2012 or early 2013, he immediately filed an IAD request to be returned to Kentucky.

Mr. Dudley testified at the 2016 hearing that a Covington police officer involved in his arrest testified at his 2005 Ohio parole revocation hearing. However, the officer did not inform the Ohio court or Dudley that Dudley had a pending Kenton County indictment or pending warrant for his arrest. The court did not cite this in its reasoning.

Thus, the panel found, Mr. Dudley’s Sixth Amendment right to a speedy trial was violated. The panel remanded with an order for his indictment to be dismissed.

Matt Ryan, formerly of the Covington Office, was counsel for Mr. Dudley. Julia K. Pearson of Appeals represented Mr. Dudley on appeal.

KYSC - ten-year lookback on DUI

Commonwealth v. Jackson and Commonwealth v. Denson, Kentucky Supreme Court, to be published (9/28/17): 

 

The Supreme Court held that the new ten-year lookback provision of the DUI statute (KRS 189A.010) does apply to even those defendants who have prior convictions more than five years old that had already “expired” under the prior version of the statute.

 

Re: the argument the Commonwealth was violating contract law by not honoring the five-year lookback periods specified in the defendants’ prior plea deals, the Court held it is not reasonable for a defendant pleading guilty under the agreement to infer the future ramifications of his conviction would cease after five years.  From the language employed in the plea agreement, a reasonable person could not construe the intent of the boilerplate language parroting the statutory range of penalties for a DUI conviction as a promise by the Commonwealth limiting the future effect of the conviction so as to immunize the defendant forever thereafter from future legislative modifications of the lookback period.

 

The Court also found the amendment to the statute does not violate ex post facto principles (“they are not charged with a crime that was legal when committed but was rendered illegal by the 2016 amendment”) and Boykin does not bar application (“[t]he fact that subsequent legislative measures may unforeseeably alter the consequences and effects of the criminal conviction does not take the plea retrospectively outside the scope of the Boykin requirements”).