MICHAEL JAMES MEZO v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 15, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001306-MR
MICHAEL JAMES MEZO
v.
APPELLANT
APPEAL FROM UNION CIRCUIT COURT
HONORABLE TOMMY W. CHANDLER, JUDGE
ACTION NO. 02-CR-00122
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
COMBS, CHIEF JUDGE; McANULTY, JUDGE; MILLER, SENIOR
MILLER, SENIOR JUDGE:
Appellant Michael Mezo (Mezo) brings this
appeal as a matter of right from a judgment on a conditional
guilty plea2 in the Union Circuit Court, entered on June 16,
2004, finding him guilty on four counts of third-degree burglary3
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 21.580.
2
Kentucky Rules of Criminal Procedure 8.09.
3
Kentucky Revised Statutes 511.040, a class D felony.
and one count of felony theft by unlawful taking4 and sentencing
him to five years imprisonment on each count, to run
concurrently for a total of five years and to run consecutively
with any previous sentence.
Before us, Mezo argues violations
of his rights to both a speedy trial and the Interstate
Agreement on Detainers Act (IAD) (as preserved under the
conditional plea), as well as a fatally flawed indictment.
We review questions of fact under the clearly
erroneous standard of Kentucky Rules of Civil Procedure (CR)
52.01.
Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001);
Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002).
trial court’s application of law is reviewed de novo.
Clayton, 132 S.W.3d 864, 866 (Ky. 2004).
The
Rehm v.
We conclude that the
findings of the trial court are supported by substantial
evidence and there was a correct application of law.
Thus we
affirm.
Because of the nature of Mezo’s claims, we find it
necessary to elaborate on the procedural history of his case.
series of burglaries and thefts from Union County businesses
occurred in April and June of 2001.
In September, 2001, Mezo
was arrested in Evansville, Indiana, on Indiana state charges.
Over a year later, in October, 2002, Mezo was first identified
4
Kentucky Revised Statutes 514.030, a class D felony.
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A
with the Union County offenses as a search of his residence
yielded documents stolen during the Union County burglaries.
On November 5, 2002, a Union County Grand Jury
returned an indictment against Mezo charging him with four
counts of third-degree burglary; one count of trafficking in
stolen identities;5 one count of felony theft by unlawful taking;
and as a persistent felony offender, first degree (PFO I).6
The
indictment alleged that from April 12 through 13, 2001, Mezo
committed third-degree burglary by unlawfully entering the
Kentucky Farm Bureau building, further committing theft by
unlawful taking by taking cash and/or personal property of
Kentucky Farm Bureau valued at $300 or more.
It was further
alleged that from June 2 through 3, 2001, Mezo committed thirddegree burglary by unlawfully entering the buildings of TriCounty Tire, Thornsberry Insurance Agency, and Hendrickson
Financial Services, and additionally on the same dates committed
trafficking in stolen identities by possessing five or more
separate identities for the purpose of trafficking.
A criminal
summons issued on the indictment which was returned for failure
to locate, and on November 12, 2002, a bench warrant issued for
his failure to appear for arraignment.
5
Kentucky Revised Statutes 514.170, a class C felony.
6
Kentucky Revised Statutes 532.080.
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In March, 2003, Mezo began serving a federal prison
sentence.
According to Mezo, in May or June, 2003, the federal
authorities checked outstanding state charges against Mezo and
the Union County Indictment did not appear.
On July 18, 2003, the Union County Sheriff notified
the Federal Correctional Institution (FCI) in Manchester,
Kentucky, to place a detainer on Mezo pursuant to the Union
County Indictment.
Mezo claimed he first learned of the Union
County Indictment in August, 2003, and around this time he
contacted the Union County Commonwealth’s Attorney directly,
asking that the PFO charge be dismissed and all charges
consolidated to a misdemeanor and that they be run concurrently
with his federal sentence, in return for full cooperation.
On November 17, 2003, Mezo requested, pro se, from the
Union County Circuit Clerk, copies of any court records on the
above indictment, appointment of counsel, and leave to proceed
as an indigent.
In the motion he alleged a denial of his rights
to a speedy trial and rights under the IAD.
Pursuant to his
request, the clerk sent him documents from his file.
On December 30, 2003, FCI notified the Union County
Commonwealth’s Attorney of Mezo’s request for “disposition on
the outstanding charges . . . filed against him as a detainer,”
under Article III of the IAD.
On January 22, 2004, the Union
County Commonwealth’s Attorney notified FCI of acceptance of
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temporary custody in connection with Mezo’s request for
disposition of the detainer.
On February 4, 2004, Mezo was
released from FCI, under the IAD, to the Union County Jail,
where he was served with the Union County charges.
appointed counsel and arraigned on February 9, 2004.
He was
On April
30, 2004, Mezo moved for dismissal of the indictment, alleging
violations of state and federal speedy trial rights and
prejudicial delay in the filing of the detainer; that same day a
pretrial conference was set for May 10, 2004, at which time
Mezo’s motion to dismiss was heard and overruled by the court.
Another pretrial conference was held on May 19, 2004,
when the Commonwealth gave notice, pursuant to Kentucky Rules of
Evidence (KRE) 404, of intent to introduce evidence of other
crimes, wrongs or acts.
On that date, the Commonwealth offered,
and Mezo agreed to, five years on each burglary and theft charge
to run concurrently for a total of five years, and dismissal of
the trafficking in stolen identities and PFO I charges, in
exchange for a conditional guilty plea allowing Mezo to reserve
for appeal the speedy trial issue.
probation.
The Commonwealth opposed
guilty plea.
Mezo waived counsel and signed a motion to enter a
An order on a guilty plea reflecting these
recommendations was entered that same day.
Mezo was sentenced pursuant to the plea.
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On June 16, 2004,
Mezo first alleges a violation of his right to a
speedy trial under Sections Two, Three, and Eleven of the
Kentucky Constitution and the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution.
Analysis begins
with the four-factor test in Barker v. Wingo, 407 U.S. 514, 530,
92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117 (1972) which involves
an examination of: (1) the length of delay, (2) the reason for
the delay, (3) the defendant's assertion of his right, and (4)
the prejudice to the defendant caused by the delay.
The factors
are balanced and "[n]o single one of these factors is ultimately
determinative by itself."
Gabow v. Commonwealth, 34 S.W.3d 63,
70 (Ky. 2000).
An analysis of the last three Barker factors begins by
determining if the delay was presumptively prejudicial:
[L]ength of the delay is to some extent a
triggering mechanism. Until there is some
delay which is presumptively prejudicial,
there is no necessity for inquiry into the
other factors . . .
Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.
Determining whether a delay was presumptively prejudicial
requires examining two elements: the charges and the length of
the delay.
"The delay that can be tolerated for an ordinary
street crime is considerably less than for a serious, complex
conspiracy charge."
L.Ed.2d at 117.
Id. 407 U.S. at 531, 92 S.Ct. at 2192, 33
In this case, Mezo was charged with multiple
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counts of burglary; and single counts of theft, trafficking in
stolen identities, and PFO I.
We consider these charges to be
moderately complex.
The second element, length of the delay, is the time
between the earlier date of the arrest or the indictment and the
time the trial begins.
Dillingham v. United States, 423 U.S.
64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975).
November 5, 2002.
Mezo was indicted on
He pleaded guilty on May 19, 2004, days
before his trial date of May 24, 2004.
The delay, therefore,
between indictment and entry of the plea was approximately
nineteen-months.
While courts differ in the length of delay
they require to find presumptive prejudice, in Bratcher v.
Commonwealth, 151 S.W.3d 332, 344 (Ky. 2004), the Kentucky
Supreme Court found an eighteen-month delay presumptively
prejudicial in a murder case.
We conclude that a nineteen-month
delay given the nature and facts of this case is presumptively
prejudicial.
Our conclusion that Mezo’s nineteen-month delay was
presumptively prejudicial leads to an examination of the
remaining three Barker factors, beginning with the reason for
delay.
The Court enumerated three categories of reasons for
delay: (1) a "deliberate attempt to delay the trial in order to
hamper the defense"; (2) a "more neutral reason such as
negligence or overcrowded courts"; and (3) "a valid reason, such
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as a missing witness."
Barker, 407 U.S. at 531, 92 S.Ct. at
2192, 33 L.Ed.2d at 117.
The Court explained that different
reasons should be allocated different weights, even reasons
within the same category.
Id.
For example, delay due to
negligence, which is a neutral reason, would weigh more heavily
in favor of a speedy trial violation than court overcrowding,
which is also classified as a neutral reason.
See Zurla v.
State, 789 P.2d 588, 592 (N.M. 1990) ("bureaucratic indifference
should weigh more heavily against the state than simple case
overload").
Further, the Court was clear that even a neutral
reason weighs against the state because "the primary burden [is]
on the courts and the prosecutors to assure that cases are
brought to trial."
Barker, 407 U.S. at 529, 92 S.Ct. at 2191,
33 L.Ed.2d at 115.
Before the trial court, Mezo conceded that he had no
argument with regard to the delay between the time of the
alleged offenses in April and June, 2001, and the issuing of the
indictment in November, 2002.
We will therefore not address
Mezo’s attempt at arguing this theory again on appeal.
Mezo’s
more specific argument before the trial court and in this appeal
asserts a prejudicial delay due to the nine months between the
indictment (November, 2002) and the placing of the detainer
(July, 2003).
It is important to note that for the first five
months following the indictment, Mezo’s location was unknown to
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the Union County authorities due to his incarceration in Indiana
on unrelated charges.
In the fifth month, again unknown to the
Union County authorities, Mezo was transferred to federal
prison.
The record is silent as to when the Union County
authorities became aware of Mezo’s federal incarceration, but we
do know that four months after federal incarceration the Union
County sheriff notified the federal authorities of the detainer.
There is no evidence that either delay was intentional or
avoidable, or due to a "deliberate attempt to delay the trial in
order to hamper the defense."
Barker, 407 U.S. at 529, 92 S.Ct.
at 2191, 33 L.Ed.2d at 115.
The third Barker factor is the defendant's demand for
a speedy trial.
While the defendant has a right to a speedy
trial regardless of whether he makes a demand, assertion of the
right is a factor to consider.
2192, 33 L.Ed.2d at 117.
Id. 407 U.S at 531, 92 S.Ct. at
Such assertions are "entitled to
strong evidentiary weight" in deciding whether the defendant's
rights were violated.
defendant.
Id.
This factor weighs in favor of the
The record before us contains a letter from Mezo to
the Union County Circuit Court Clerk, dated November 17, 2003,
asking for “any and all Court records you may have for my person
from March of 2001 to the present date.”
Attached to the letter
were also motions for appointment of counsel and to proceed as
an indigent, asserting Mezo’s right to speedy trial.
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Another
letter to the clerk from Mezo, received December 5, 2003, makes
reference to the clerk’s forwarding of the indictment to Mezo.
Within a month, the IAD forms are forwarded to Union County by
the federal prison, pursuant to Mezo’s request.
It is important
to note that Mezo made his IAD request within five weeks of his
request to the clerk; within three weeks of the IAD request
Union County acted on the IAD; within two weeks of that action
Mezo was transported to Union County and arraigned; within two
weeks a pretrial conference was held and discovery proceeded;
within two months Mezo again asserted speedy trial rights; and
within three weeks he pleaded guilty.
The record is clear,
therefore, that while Mezo did make the speedy trial assertion,
his assertions were acted upon expeditiously.
The Barker Court identified three interests bearing on
the final factor, prejudice to the defendant caused by the
delay: "(i) to prevent oppressive pretrial incarceration; (ii)
to minimize anxiety and concern of the accused; and (iii) to
limit the possibility that the defense will be impaired."
Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.
Of these three, the last is the most serious.
Id.
Mezo claims
that all three prejudicial interests exist in his case,
specifically arguing without any supporting authority that “he
could have received a sentence concurrent to the one he was
currently serving [in Indiana] had the state of Kentucky
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proceeded promptly; that he “did not qualify for placement in a
half-way house and was subject to more stringent restrictions;”
and that he was unable, given his incarceration, to prepare his
defense.
While delay can cause anxiety and incarceration can
prejudice the defense, in Barker the court found only minimal
prejudice due to a ten-month pretrial incarceration and nearly
four years of anxiety producing, post-indictment proceedings.
Barker, 407 U.S. at 534, 92 S.Ct. at 2194, 33 L.Ed.2d at 119.
And as LaFave points out, "absent some unusual showing [anxiety
and concern] is not likely to be determinative in defendant's
favor."
LaFave et al., Criminal Procedure, § 18.2(e) at 684.
Mezo has made no showing of unusual anxiety in his case.
As for
the last and most important factor of impairment to his defense,
despite repeated questioning by the trial court as to specific
instances of prejudice in the preparation of his defense, Mezo
has again made only a conclusory allegation.
As indicated
above, following Mezo’s letter to the clerk in November, 2003,
all participants in the system responded appropriately and in a
timely fashion.
We conclude, therefore, after balancing the Barker
factors, that Mezo’s constitutional right to a speedy trial was
not violated.
Though Mezo asserted his right and the length of
delay was presumptively prejudicial, the reasons for the delay
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were acceptable and the prejudice caused the appellant was
minimal.
Mezo next argues that he was not tried within the
required time limit set by Article III, Sections One and Four,
of the IAD, codified in Kentucky Revised Statutes (KRS) 440.450
et. seq.
Section Four has no application herein, as it requires
the dismissal of an indictment with prejudice if a trial is not
had on the indictment prior to the return of the prisoner to the
original place of imprisonment, and those facts are not present
in the case sub judice.
Section One provides:
Whenever a person has entered upon a term of
imprisonment in a penal or correctional institution of
a party state, and whenever during the continuance of
the term of imprisonment there is pending in any other
party state any untried indictment, information or
complaint on the basis of which a detainer has been
lodged against the prisoner, he shall be brought to
trial within one hundred eighty (180) days after he
shall have caused to be delivered to the prosecuting
officer and the appropriate court of the prosecuting
officer's jurisdiction written notice of the place of
his imprisonment and his request for a final
disposition to be made of the indictment, information
or complaint: provided that for good cause shown in
open court, the prisoner or his counsel being present,
the court having jurisdiction of the matter may grant
any necessary or reasonable continuance. The request
of the prisoner shall be accompanied by a certificate
of the appropriate official having custody of the
prisoner, stating the term of commitment under which
the prisoner is being held, the time already served,
the time remaining to be served on the sentence, the
amount of good time earned, the time of parole
eligibility of the prisoner, and any decisions of the
state parole agency relating to the prisoner.
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The notice by the federal prison authorities to the Union County
sheriff was mailed December 30, 2003.
The record is silent as
to when the Union County Commonwealth’s Attorney actually
received the federal notice, but the record does contain a
document dated January 20, 2004, indicating the Commonwealth’s
acceptance of temporary custody of Mezo.
Insofar as the record
before us, the one-hundred eighty-day time limit, therefore,
commenced sometime between December 30, 2003, and January 20,
2004, as the time limit does not commence until the detainee's
request for final disposition of charges against him has
actually been delivered to the court and to the prosecuting
officer of the jurisdiction that lodged detainer against him.
Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed.2d 406
(1993); Wright v. Commonwealth, 953 S.W.2d 611 (Ky.App. 1997).
The plea on May 19, 2004, therefore, was well within the onehundred eighty-day time limit.
Mezo’s argument that his November 17, 2004, pro se
letter to the Union County Circuit Court Clerk, containing a
motion for appointment of counsel in order to preserve speedy
trial rights, triggered the running of the one-hundred eightyday time limit also fails because that motion, unlike the
December 30, 2003, notice, was insufficient as it was not
accompanied by a certificate from the appropriate official
having custody of the prisoner detailing specific information
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about the prison term in the sending jurisdiction.
Commonwealth, 828 S.W.2d 360 (Ky. 1992).
Ellis v.
Mezo’s trial was
originally set for May 24, 2004, and he entered his plea on May
19, 2004.
Either was well within the one-hundred eighty-day
time limit.
We conclude, therefore, that there was compliance
with the time limits of the IAD.
Mezo last asserts that the third-degree burglary
charges were fatally defective pursuant to Kentucky Rules of
Criminal Procedure (RCr) 6.10(2) for lack of specificity in
failing to state that he entered the businesses “with the intent
to commit a crime.”
While acknowledging that this issue is not
preserved for review on appeal, Mezo requests review under CR
61.02 or RCr 10.26 as a palpable error.
For an alleged defect in an indictment to be
considered on appeal, it must be preserved for review.
A defect
will be deemed waived unless raised by a timely objection.
Stark v. Commonwealth, 828 S.W.2d 603 (Ky. 1991), overruled on
other grounds, Thomas v. Commonwealth, 931 S.W.2d 446 (Ky.
1996); see also Johnson v. Commonwealth, 709 S.W.2d 838 (Ky.App.
1986), cert. denied, 479 U.S. 865, 107 S.Ct. 222, 93 L.Ed.2d 150
(1986).
Mezo’s failure to object renders his challenges to the
indictment unpreserved and reviewable only for palpable error
pursuant to RCr 10.26.
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A finding of palpable error is inappropriate absent
manifest injustice.
As required by Thomas, 931 S.W.2d at 449,
and Salinas v. Commonwealth, 84 S.W.3d 913, 916 (Ky. 2002), the
indictment informed Mezo of the charges against him.
It also
cited the relevant statutory provision, which set forth all of
the elements of the offense.
Additionally, Mezo makes no claim
that he would have prepared differently for trial had the
indictment included all elements of the charged offenses.
In
any event, to further dilute Mezo’s argument, it is not
necessary for a burglary indictment to contain the phrase “with
intent to commit a crime.”
Abney v. Commonwealth, 588 S.W.2d
714 (Ky.App. 1979); Godsey v. Commonwealth, 661 S.W.2d 2
(Ky.App. 1983).
For the foregoing reasons, the judgment of the Union
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa Bridges Clare
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Kentucky Attorney General
George G. Seelig
Assistant Attorney General
Frankfort, Kentucky
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