JAMES T. ASHBY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 2, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001440-MR
JAMES T. ASHBY
APPELLANT
APPEAL FROM OHIO CIRCUIT COURT
HONORABLE RONNIE DORTCH, JUDGE
ACTION NO. 99-CR-00027
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
EMBERTON, GUIDUGLI and McANULTY, JUDGES.
EMBERTON, JUDGE: This is an appeal from a conditional plea of
guilty to one count of possession of a firearm by a convicted
felon for which appellant was sentenced to four years’
imprisonment.
Appellant’s plea was conditioned upon the
reservation of the right to appeal the denial of his motion for a
speedy trial.
We affirm.
Appellant was indicted on April 16, 1999, on six counts
of possession of a firearm by a convicted felon and one count of
being a persistent felony offender.
He was subsequently
arraigned and counsel was appointed to represent him.
An initial
trial date of August 19, 1999, was also set at that time.
On
August 13, 1999, the circuit clerk filed an acknowledgment from
the Roederer Correctional Complex noting that this indictment had
been filed against appellant as a detainer.
Although, for reasons not apparent from the record, the
August 19th trial on the instant charges did not take place as
scheduled, it appears that appellant’s counsel filed a motion to
dismiss and a motion to preclude PFO enhancement to be heard on
August 15th.
These same motions were subsequently noticed for a
hearing on August 26th.
Furthermore, on August 19th, the
Commonwealth filed a motion requesting the trial court to reset
the case for jury trial at the “earliest convenience of the
By order of August 26th, trial was rescheduled for March
Court.”
9, 2000.
On September 3, 1999, appellant file a pro se motion to
be tried within 180 days as required by Kentucky Revised Statutes
(KRS) 500.110.
In response, the Commonwealth moved the court to
change the trial date to January 14, 2000, in order to
“accommodate the one hundred eighty day rule” invoked in
appellant’s motion.
The trial court thereafter granted the
Commonwealth’s motion and rescheduled the trial for January 14,
2000.
Appellant then filed a motion to dismiss the untried
indictments against him for failure to comply with KRS 500.110
which was denied by order of December 22, 1999.
Several
subpoenas were issued for the January 14th trial date.
However,
the next item appearing of record is a March 2, 2000, order
denying again appellant’s pro se motion to dismiss upon the basis
of the court’s ruling that “he has already been tried once before
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the sitting jury panel and that one case involving this matter
had already been tried before said panel. . . .”
Finally, on
April 27, 2000, appellant entered a guilty plea to one count of
possession of a firearm by a convicted felon, conditioned upon
the retention of his right to appeal issues relating to his
speedy trial claim, as well as an issue of double jeopardy and
multiple enhancement.
This appeal presses only the KRS 500.110
speedy trial issue.
Contrary to appellant’s assertion, we are convinced
that there existed in this case “good cause” to invoke the
exception spelled out in KRS 500.110.
The statute by its own
terms provides that if good cause is demonstrated, “the court
having jurisdiction of the matter may grant any necessary or
reasonable continuance.”
Here the trial court specified that the
reason for the continuance was the fact that appellant had
already been tried on a related charge before the panel which
would have heard the instant charge.
The separate indictment,
which was tried on January 14th, charged appellant with burglary
and theft of rifles and shotguns from a house in Ohio County.
Appellant’s conviction on these charges resulted in a sentence of
fifteen years’ imprisonment.
Furthermore, it was the possession
of these firearms which formed the basis for the possession
charge at issue in this appeal.
In our opinion, the trial court
acted well within its discretion in continuing the appellant’s
trial on possession of firearms by a convicted felon in order to
prevent him from facing the same jury panel twice on closely
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related charges.1
Similarly, we view the decision to delay
appellant’s firearm possession charge as falling squarely within
the rationale set out in Gabow v. Commonwealth,2 and Barker v.
Wingo.3
In sum, there is absolutely no basis for disturbing
the trial court’s judgment in this case.
The judgment of the Ohio Circuit Court is affirmed.
GUIDUGLI, JUDGE, CONCURS.
McANULTY, JUDGE, DISSENTS BY SEPARATE OPINION.
McANULTY, JUDGE, DISSENTING: I respectfully dissent.
I
do not believe that the trial court should have presumed bias of
the entire panel merely on the basis that some veniremen had
served on the defendant’s panel at an earlier trial.
Failure to
establish an insufficient number of jurors, in my opinion,
militates against the trial court’s finding of “good cause.”
500.110.
KRS
I would remand this matter with instructions to dismiss
the indictment with prejudice.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Christopher F. Polk
Louisville, Kentucky
Albert B. Chandler III
Attorney General
Elizabeth A. Heilman
Assistant Attorney General
Frankfort, Kentucky
1
Dishman v. Commonwealth, Ky., 906 S.W.2d 335 (1995).
2
Ky., 34 S.W.3d 63 (2000).
3
407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed. 101 (1972).
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