MAURICE WEST v. COMMONWEALTH OF KENTUCKY
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RENDERED:
NOVEMBER 4, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002226-MR
MAURICE WEST
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NOS. 03-CR-000092 AND 03-CR-000324
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND JOHNSON, JUDGES; MILLER, SENIOR JUDGE. 1
JOHNSON, JUDGE:
Maurice West has appealed from the October 6,
2003, final judgment and sentence of the Jefferson Circuit
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes (KRS) 21.580.
Court.
Having concluded that West was in custody and properly
convicted of escape in the second degree, 2 we affirm.
The facts in this case are undisputed.
In November
2002 West was participating in the home incarceration program
(HIP) 3 as a condition of his bond in three pending criminal cases
in the Jefferson Circuit Court. 4
On October 29, 2002, West’s
bond was released in Case Nos. 01-CR-000068 and 01-CR-001323,
but he was not removed from the HIP. 5
On November 24, 2002, West removed his monitoring
bracelet and left his residence without receiving permission
from the supervisor of the HIP.
West surrendered himself on
December 1, 2002, at the HIP office.
He was subsequently
indicted on January 13, 2003, by a Jefferson County grand jury
for escape in the second degree.
Based on prior felony
offenses, West was indicted on January 30, 2003, by a Jefferson
County grand jury as being a persistent felony offender in the
first degree (PFO I). 6
On September 26, 2003, the second day of his jury
trial, West filed a motion to enter a guilty plea pursuant to
2
KRS 520.030.
3
West entered the HIP on August 16, 2002.
4
Case Nos. 01-CR-000068, 01-CR-001323, and 01-CR-002236.
5
Case No. 01-CR-002236 was dismissed.
6
KRS 532.080(3).
-2-
RCr 7 8.09. 8
His plea was based on the Commonwealth’s offer of
one year in prison on the escape charge, with no objection to
probation, the dismissal of the PFO I charge, and the
Commonwealth’s statement that it would not use the escape
conviction as a basis for seeking to increase West’s bond in any
pending indictments he had in Jefferson County.
The trial court
accepted the plea and on October 6, 2003, sentenced West to one
year in prison, probated for five years.
West’s plea allowed
him to appeal the issue of “whether a person placed on the [HIP]
as a condition of pretrial release can be guilty of Escape II if
he leaves the [HIP], or whether the act of leaving only
constitutes a violation of the conditions of release.”
This
appeal followed.
The sole issue on appeal, as preserved under RCr 8.09,
is whether West was in custody on November 24, 2003, while
participating in the HIP while awaiting trial, making it
possible to charge him with an escape charge.
KRS 520.030
states as follows:
(1)
A person is guilty of escape in the
second degree when he escapes from a
detention facility or, being charged
7
Kentucky Rules of Criminal Procedure.
8
RCr 8.09 states, in pertinent part, as follows:
With the approval of the court a defendant may
enter a conditional plea of guilty, reserving in
writing the right, on appeal from the judgment, to
review of the adverse determination of any specified
trial or pretrial motion. . . .
-3-
with or convicted of a felony, he
escapes from custody.
(2)
Escape in the second degree is a Class
D felony.
For purposes of this statute, custody is defined as “restraint
by a public servant pursuant to a lawful arrest, detention, or
an order of court for law enforcement purposes, but does not
include supervision of probation or parole or constraint
incidental to release on bail[.]” 9
Our Supreme Court in Stroud v. Commonwealth, 10 stated
that KRS 520.030 provides that “[v]iolation of the [HIP] could
result in a second-degree escape.”
West argues that because
this case does not specify whether the defendant was in the HIP
as a part of his jail sentence, or as a condition to pretrial
release, it is impossible to apply its holding to his case.
The
defendant in the case of Weaver v. Commonwealth, 11 made the same
argument.
West further argues that while participation in the
HIP is clearly custodial if it is in lieu of serving jail time,
that such is not true if the circumstances are a part of the
conditions of pre-trial release.
Our Supreme Court in Weaver
stated as follows:
9
KRS 520.010(2).
10
922 S.W.2d 382, 384 (Ky. 1996).
11
156 S.W.3d 270, 272 (Ky. 2005).
-4-
We find this distinction to be of no
consequence, as the Court’s underlying
reasoning is relevant to the present matter:
‘a narrow technical reading of the term
‘custody’ is not appropriate for the
purposes of determining escape” [citation
omitted]. 12
When West originally entered the HIP, he was on bail
in connection with his pre-trial release.
West argues that “any
restraint which is incidental to release on bail is plainly
excluded from the statutory definition of custody.”
However, a
close review of the record shows that at the time West violated
the conditions of the HIP, his bond had been released and thus
his participation in the HIP was no longer incidental to release
on bail.
The Supreme Court has given clear instructions as to
the custodial status of one such as West in Weaver.
Weaver was
placed in the HIP as a condition of being released on his own
recognizance, while awaiting trial on assault and criminal abuse
charges.
Weaver removed the electronic monitoring device and
left his home, and was subsequently indicted for escape in the
second degree. 13
The Court found that participation in the HIP
alone was not a “constraint incidental to release on bail,” but
rather ‘[a]ppellant was released to the home incarceration
program instead of being released on bail” [emphasis original]. 14
12
Id.
13
Weaver, 156 S.W.3d at 271.
14
Id.
-5-
The Court went further to state that there was a distinction
between release on bail and other forms of pre-trial release. 15
West argued in his reply brief that his case is
distinguishable from Weaver, because West was originally
released on bail when he entered the HIP program.
However, West
fails to acknowledge that his bond was released almost one month
prior to November 24, 2003, when he removed the electronic
monitoring devices and fled his residence.
Thus, at this time,
he was essentially released on his own recognizance, making his
circumstances identical to Weaver’s, upon terminating his
involvement in the HIP.
Therefore, West was in custody on
November 24, 2002.
For the foregoing reasons, we affirm the judgment of
the Jefferson Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael C. Lemke
Louisville, Kentucky
Gregory D. Stumbo
Attorney General
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky
15
Id.
-6-
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