COMMONWEALTH OF KENTUCKY v. MARK VANCLEVE
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RENDERED:
JANUARY 5, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-000896-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE STEVEN R. JAEGER, JUDGE
ACTION NO. 04-CR-00074
MARK VANCLEVE
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** ** ** ** **
BEFORE: TAYLOR, JUDGE; ROSENBLUM,1 SENIOR JUDGE; MILLER,2 SPECIAL
JUDGE.
MILLER, SPECIAL JUDGE:
The Commonwealth of Kentucky appeals
from an order of the Kenton Circuit Court dismissing an
indictment for first-degree sexual abuse brought against
appellee Mark Vancleve on the basis that his right to a speedy
1
Senior Judge Paul W. Rosenblum, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
2
John D. Miller, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution.
trial had been violated.
Sixth Amendment of United States
Constitution; Section 11 of Kentucky Constitution.
We reverse.
According to the Uniform Citation issued in connection
with Vancleve’s arrest, the nine-year old alleged victim
reported to both of her parents that appellee had “touched her
private parts.”
The alleged victim is Vancleve’s niece.
The
citation also states that “[w]hile being interviewed after being
given a Miranda warning the defendant admitted to touching his
niece’s vagina, under her shorts, approx 2 weeks ago on one
occasion.
He also indicates he’s sorry.”
Vancleve was arrested on December 30, 2003.
arraigned in district court on December 31, 2003.
He was
On January 7,
2004, a preliminary hearing was held at which time probable
cause was established and the cause was waived to the grand
jury.
Vancleve was released upon a $2,500.00 cash bond.
On February 20, 2004, Vancleve was indicted for first-
degree sexual abuse.
Kentucky Revised Statutes (KRS) 510.110.
The indictment alleged that between February 1, 2003, and
December 29, 2003, Vancleve subjected another person to sexual
contact, who was incapable of consent because she was less than
12 years of age.
The appellant was arraigned on March 3, 2004,
at which time he pled not guilty.
Vancleve remained free on
bond.
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Reciprocal discovery was ordered and the case was set
for a status hearing on April 13, 2004.
On March 31, 2004, the
Commonwealth filed a Discovery Inventory and Acknowledgment.
On the same day, the Commonwealth also filed a Recommendation on
Plea of Guilty.
The recommendation offered Vancleve five years
incarceration probated for five years and, as a condition of
probation, six months to serve.
On April 13, 2004, a status hearing was held.
At the
hearing defense counsel noted that he had received discovery
(with the exception of the grand jury proceedings) and that it
was anticipated that pretrial motions would be forthcoming.
The
trial court entered an order reflecting the status hearing
events, noting that discovery was complete, and a pretrial
conference date was set for May 11, 2004.
On May 11, 2004, Vancleve’s retained counsel filed a
motion to withdraw from the case.
At the hearing on the motion
the trial court granted counsel’s request to withdraw, set a
status conference date for May 25, 2004, and told Vancleve to
have a new attorney retained at that time.
At the May 25
conference, Vancleve appeared without an attorney.
On May 26,
2004, the trial court appointed a public defender to represent
the appellant.
A status conference was held on June 8, 2004, at
which time new counsel indicated that he was still reviewing
discovery issues.
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A pretrial conference was held on June 29, 2004, at
which time Vancleve requested a trial date.
set for September 1, 2004.
A trial date was
On August 3, 2004, the Commonwealth
filed a motion to continue the trial because the lead detective
in the case was to be unavailable at that time due to mandatory
training.
A hearing on the motion was convened on August 17,
2004, but was passed until August 24, 2004, as it was
anticipated that Vancleve would plead guilty.
On August 24, 2004, the parties entered into a plea
agreement under which Vancleve would be sentenced to five years,
probated for five years upon the condition that he serve six
months.
The agreement also provided that no other charges were
to follow.
Vancleve entered a plea in court on August 24, 2004,
and sentencing was set for October 5, 2004.
At the October 5, 2004, sentencing hearing the trial
court asked the Commonwealth why it was recommending probation.
In response, the Commonwealth responded that probation was being
recommended because the alleged victim was in counseling; the
alleged victim’s father did not want to pursue the matter or see
Vancleve in prison; the father did not want to subject his child
to a trial; and that the allegation was “just a touching.”
The
trial court thereupon rejected the plea agreement upon the basis
of the probation recommendation and the period of incarceration.
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On October 26, 2004, a status hearing was held.
At
that time the trial court rejected the request of the parties to
reconsider and accept the plea agreement.
Vancleve then
withdrew his guilty plea and requested a trial date.
A new
trial date was set for February 9, 2005.
On February 9, 2005, the case was called for trial.
At that time the Commonwealth moved the court “to withdraw this
matter with leave to refile.”
The basis for the motion was that
the victim in the case – a nine-year old girl – was unavailable
due to “illness and inability to testify.”
The Commonwealth
noted that “she was able to testify at one time, but she has
decompensated and that is why the Commonwealth has moved to
withdraw without prejudice.”
with leave to refile.
Vancleve objected to withdrawal
Defense counsel stated that this case
“has gone on long enough . . . as I remember, what has been said
in this case is that they don’t have any indication that the
child witness will ever be able to testify in this matter, so I
would ask for it to be either dismissed with prejudice or
withdrawn without leave to refile.”
The trial court then asked
the Commonwealth to restate its motion; which the Commonwealth
indicated was a motion to withdraw the case with leave to
refile.
The trial court then announced that the case was
“withdrawn.”
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On March 28, 2005, the trial court entered an order
captioned “Order of Dismissal.”
The order purported to
“sustain” the Commonwealth’s motion to dismiss, and dismissed
the indictment against Vancleve with prejudice.
The
Commonwealth filed a “Motion to Reconsider,” which was denied.
This appeal followed.
We first address the procedural posture of the case
based upon the trial court’s somewhat ambiguous order dismissing
the indictment.
The order states “that the motion of the
Commonwealth to dismiss the Indictment is SUSTAINED.”
However,
the Commonwealth’s motion was to dismiss the case without
prejudice and with leave to refile, whereas the trial court’s
order dismissed the case with prejudice.
Hence, the order did
not grant, nor sustain, the Commonwealth’s motion.
Further, the
trial court is not unilaterally permitted to dismiss an
indictment under Kentucky Rules of Criminal Procedure (RCr)
9.64.3
The order also states that “the Defendant is entitled
to a speedy and public trial.
After being under the cloud of an
3
RCr 9.64 provides as follows: “The attorney for the Commonwealth, with the
permission of the court, may dismiss the indictment, information, complaint
or uniform citation prior to the swearing of the jury or, in a non-jury case,
prior to the swearing of the first witness.” Hence, under RCr 9.64 the trial
court’s authority is limited to granting its permission to dismiss upon the
terms proposed by the Commonwealth. We do not construe the rule as
permitting the trial court to dismiss an indictment with prejudice upon the
Commonwealth’s motion to dismiss without prejudice.
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Indictment for almost twelve months, a party who announces ready
for trial is entitled to go forward.”
Based upon this statement
in the order, and because Vancleve had not moved to dismiss upon
speedy trial grounds, we construe the order as dismissing, sua
sponte, the indictment for violation of Vancleve’s right to a
speedy trial under the Sixth Amendment of the United States
Constitution and Section 11 of the Kentucky Constitution.
We
review this appeal under that premise.
Claims of speedy trial right violations are evaluated
under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d
101 (1972).
“A defendant's constitutional right to a speedy
trial cannot be established by any inflexible rule but can be
determined only on an ad hoc balancing basis, in which the
conduct of the prosecution and that of the defendant are
weighed.”
Id. at 514, 92 S.Ct at 2184.
Barker requires that a
reviewing court consider four factors to determine whether a
defendant had been denied his right to a speedy trial: (1) the
length of the delay; (2) the reason for the delay; (3) whether
the defendant asserted his right to a speedy trial; and (4) the
prejudice to the defendant.
Id. at 530, 92 S.Ct. at 2192.
single one of these factors is determinative by itself.”
“No
Gabow
v. Commonwealth, 34 S.W.3d 63, 70 (Ky. 2000), overruled in part
on other grounds by Crawford v. Washington, 541 U.S. 36, 60-61,
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124 S.Ct. 1354, 1369-70, 158 L.Ed.2d 177 (2004), as recognized
in Jackson v. Commonwealth, 187 S.W.3d 300, 304 (Ky. 2006).
The first Barker factor is the initial hurdle for an
appellant claiming a violation of this speedy trial right.
The
length of the delay must be “presumptively prejudicial” in order
to reach consideration of the remaining factors: “The inquiry
must first be triggered by a presumptively prejudicial delay.
There is no bright line rule for determining what length of
delay suffices to trigger the inquiry, but actual prejudice need
not be proven to establish a presumptively prejudicial delay.”
Id.
The length of the delay in this case was over thirteen
months between the time of Vancleve’s arrest and the scheduled
commencement of trial.
While the complexity of the case has
some effect on whether a given delay is presumptively
prejudicial, the United States Supreme Court has noted that
“lower courts have generally found post accusation delay
‘presumptively prejudicial’ at least as it approaches one year.”
Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct.
2686, 2691, 120 L.Ed.2d 520 (1992).
As such, we conclude that
the thirteen month delay here is presumptively prejudicial.
However, “‘presumptive prejudice’ does not necessarily indicate
a statistical probability of prejudice; it simply marks the
point at which courts deem the delay unreasonable enough to
trigger the Barker inquiry.”
Id.
Thus, we must still consider
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the remaining factors in the Barker balancing test to determine
whether Vancleve’s rights were violated.
The second factor, the reason for the delay, is a
crucial area of concern under Barker, because it amounts to a
determination of who is to blame for the delay. With regard to
this factor, the Barker Court noted:
[D]ifferent weights should be assigned to
different reasons. A deliberate attempt to
delay the trial in order to hamper the
defense should be weighted heavily against
the government. A more neutral reason such
as negligence or overcrowded courts should
be weighted less heavily but nevertheless
should be considered since the ultimate
responsibility for such circumstances must
rest with the government rather than with
the defendant. Finally, a valid reason, such
as a missing witness, should serve to
justify appropriate delay.
Barker, 407 U.S. at 531, 92 S.Ct. at 2192.
Delay in this matter was initially caused by the
withdrawal of Vancleve’s retained counsel and the substitution
in lieu thereof by appointed counsel.
Following the appointment
of a public defender, additional delay was caused by new
counsel’s efforts to review discovery and become acquainted with
the case.
The Commonwealth was not at fault for this phase of
the delay, and if fault was to be assigned, the fault was the
appellant’s.
After the appointment of new counsel, the matter was
then, it originally appeared, expeditiously resolved by a plea
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agreement entered into by the parties on August 24, 2004.4
The
plea agreement, we note, was for the maximum sentence
permissible for a Class D felony, five years.
However, because
under the plea agreement Vancleve would only have to serve sixmonths as a condition of probation (leaving four and one-half
years of shelf-time), the trial court rejected the agreement.
The trial court’s rejection of the plea agreement was the fault
of neither the appellant nor the Commonwealth.
At the time of the trial court’s rejection of the
agreement and Vancleve’s withdrawal of his guilty plea, it was
October 26, 2004.
At this point, none of the fault for the
delay could be attributable to the Commonwealth.
A trial date
was timely set for February 9, 2005, and there is no evidence
that the Commonwealth could have done anything to have had the
trial set at an earlier time.
On February 9, 2005, when the case was called for
trial, the first delay that could be attributed to the
prosecution-side of the case occurred.
At that time the
Commonwealth indicated that it could not proceed to trial
because the alleged victim in the case was unavailable due to
“illness and inability to testify.”
4
As such, this anticipated
While the Commonwealth had filed a motion to continue the September 1, 2004,
trial date because the lead detective was scheduled to be unavailable, that
factor was superseded by the plea agreement and is irrelevant to our review.
The motion for a continuance caused no delay.
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delay – the delay at issue before us – was attributable to a
missing witness.
A valid reason, such as missing witness, should serve
to justify appropriate delay in bringing a defendant to trial.
Barker v. Wingo, 92 S.Ct. 2182, 407 U.S. 514, 33 L.Ed.2d 101
(1972).
See also U.S. v. Howard, 218 F.3d 556 (6th Cir. 2000)
(Defendant's Sixth Amendment right to speedy trial was not
violated by three-month continuance before his first trial and
five-month continuance before his second trial; although
defendant repeatedly asserted his speedy trial rights,
government's delays were not motivated by bad faith or attempt
to obtain tactical advantage, but were caused in part by
unavailability of witness, and defendant failed to identify how
his defense was prejudiced by delays).
In summary, the absence of a witness is a justifiable
reason to delay a trial.
Particularly as here, when no fault at
all is attributable to the Commonwealth, and the delay is
attributable to medical reasons associated with the alleged
sexual abuse of a nine-year old child, the matter was not ripe
for dismissal upon speedy trial grounds.
Relevant as well is
that barely three months prior the trial court had rejected a
plea agreement obtained by the Commonwealth which would have
imposed upon Vancleve the maximum sentence available for the
crime charged.
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As such, upon application of this prong of the Barker
test (and, as discussed below, the prejudice prong of the test),
we believe that the trial court erred in dismissing the
indictment with prejudice.
The next factor in the Barker inquiry centers upon
whether or not the defendant actually asserted his right to a
speedy trial.
While the Barker Court noted that assertion of
the right is not an absolute prerequisite, “[t]his does not mean
. . . that the defendant has no responsibility to assert his
right.”
Barker, 407 U.S. at 528, 92 S.Ct. at 2191.
The
Commonwealth claims that Appellant never asserted his right
because he never explicitly did so, or, if he did do so, it was
not until the day of the trial.
However, while Vancleve may not
have formally invoked his right, he did make efforts to set a
trial date and objected to the Commonwealth's efforts to dismiss
without prejudice.
We conclude that this was sufficient to
constitute an assertion of the right, thus allowing the third
factor of the inquiry to weigh in Vancleve’s favor. Cf. Cain v.
Smith, 686 F.2d 374, 384 (6th Cir. 1982) (holding that “a demand
for a reasonable bail is the functional equivalent of a demand
for a speedy trial”).
Prejudice to the defendant is the most compelling of
the factors in the Barker balancing test.
As noted above, the
determination that the length of delay was presumptively
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prejudicial does not decide this factor.
Instead, we must
engage in a substantive analysis of whether Appellant was
actually prejudiced by the fourteen month delay.
Prejudice should be assessed in the light of the
interests of defendants which the speedy trial right was
designed to protect.
The Supreme Court has identified three
such interests: (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.
Vancleve posted bail and did not have to endure
pretrial incarceration.
Nor would he be subject to
incarceration upon dismissal of the indictment with leave to
refile.
Moreover, the Commonwealth’s proposal – dismissal with
leave to refile – should serve to minimize the anxiety and
concern of the accused in that the cloud of indictment would be
removed from appellant.
Finally, there is no evidence that
Vancleve’s defense would be impaired by a reasonable delay in
the proceedings pending recovery by the alleged victim.
As
such, we are persuaded that the prejudice prong of the Barker
analysis weighs against dismissal with prejudice.
In summary, because the Commonwealth was not at fault
at all for the delay, because the delay was not to gain a
tactical advantage, and because prejudice to Vancleve will be
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minimal upon dismissal with leave to refile, we are persuaded
that the trial court erred in dismissing the matter with
prejudice.
We accordingly reverse the dismissal.
For the foregoing reasons the judgment of the Kenton
Circuit Court is reversed, and the cause is remanded for
additional proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Donald H. Morehead
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
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