COMMONWEALTH OF KENTUCKY v. DAVID HILL
Annotate this Case
Download PDF
RENDERED: JUNE 8, 2007; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000708-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE STEVEN R. JAEGER, JUDGE
ACTION NO. 05-CR-00739
v.
DAVID HILL
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: DIXON, MOORE, AND TAYLOR, JUDGES.
DIXON, JUDGE: The Commonwealth of Kentucky appeals an order of Kenton Circuit
Court dismissing one count of a four count indictment against David Hill. We vacate and
remand.
Hill and a co-defendant were indicted by a Kenton Circuit Court Grand Jury
on December 16, 2005. Hill was charged in Count I with second offense trafficking in
marijuana less than eight ounces and in Count II with possession of a handgun by a
convicted felon. Hill's co-defendant was charged in Count III with possession of a
controlled substance. The case was set for trial on March 15, 2006. However, on March
9, the Commonwealth moved for a continuance because the investigating police officer
could not attend trial. On March 10, before the court ruled on the motion to continue, the
Grand Jury handed down an additional charge against Hill in Count IV with being a
second degree persistent felony offender (PFO).
On March 15, the court granted the Commonwealth's requested continuance
and scheduled a status conference for March 21. At the status conference, the court
addressed the new PFO charge:
Defense:
I guess we are looking for a formal trial date.
Court:
We'll waive formal arraignment on Count IV,
the second degree persistent felony offender.
We'll allow reservations for other motions that
might otherwise be made. We'll order
reciprocal discovery as it relates to this. Is
that the reason for the continuance?
Prosecutor: No, your honor, the . . .
Court:
[Interrupting] The original trial date predated
this, which I think is grossly unfair.
Prosecutor: Yes, sir. The original trial date . . . originally,
we requested the continuance because the
officer was unavailable - he was out of town.
And the office chose to bring a PFO indictment.
Court:
I'll entertain any motions the Commonwealth or
defense wish to make on that.
Defense:
Judge, I would move to dismiss this PFO
indictment.
-2-
Court:
Motion sustained. Do you want me to set a trial
date?
Prosecutor: Your honor, we would object to . . .
Court:
[Interrupting] It's too late. It's grossly unfair.
It's a gross misuse. The case was set for trial.
There was no indication of PFO indictment.
You moved to continue, then you indict him for
PFO.
***
Court:
For purposes of the record, the motion to
dismiss is not in the nature of a summary
judgment or any other type of action. It is for
the misuse of process, for purposes of the
record.
An order was entered March 22 dismissing Count IV of the indictment and
scheduling the remaining charges for trial on May 25, 2006. The Commonwealth filed a
timely notice of appeal from the court's order of dismissal. The Commonwealth also
sought, and was denied, emergency relief from this Court to prevent Hill's trial from
taking place on May 25.1
On appeal, the Commonwealth contends the trial court erroneously
dismissed the PFO charge. In contrast, Hill argues the Commonwealth's claim of error is
unpreserved and alternatively argues the claim is moot and a violation of due process.2
The Commonwealth correctly asserts that Kentucky Rules of Criminal
Procedure (RCr) 9.64 vests only the prosecution with the authority to dismiss an
1
Commonwealth v. Jaeger, 2006-CA-001056-OA (May 24, 2006).
2
We will not further address Hill's opposing arguments, as they are unpersuasive and without merit.
-3-
indictment. However, in Commonwealth v. Baker, 11 S.W.3d 585 (Ky.App. 2000), a
panel of this Court recognized the inherent authority of a trial court to dismiss an
indictment when prosecutorial misconduct taints grand jury proceedings. Id. at 589. The
Baker Court summarized the proof required to dismiss an indictment: “Generally, a
defendant must demonstrate a flagrant abuse of the grand jury process that resulted in
both actual prejudice and deprived the grand jury of autonomous and unbiased
judgment.” Id. at 588, citing Bank of Nova Scotia v. United States, 487 U.S. 250, 257-60,
108 S.Ct. 2369, 2374-76, 101 L. Ed. 2d 228 (1988). While there are no allegations of
grand jury impropriety in the case sub judice, we find the reasoning of Baker instructive.
After reviewing the hearing in this case, it appears the court implicitly
found Hill would be prejudiced if required to proceed with the PFO charge and
essentially invited Hill to request a dismissal.
However, other than the trial judge's assertions of “gross misuse,” the
record offers no evidence that the prosecutor asked for a continuance in bad faith or
otherwise engaged in misconduct. Furthermore, we quote Price v. Commonwealth, 666
S.W.2d 749, 750 (Ky. 1984), regarding a defendant's notice of an additional PFO
indictment:
We interpret the PFO statute as requiring that if the
Commonwealth seeks enhancement by proof of PFO status,
the defendant is entitled to notice of this before the trial of the
underlying substantive offense. A separate indictment meets
this requirement just as does a separate count in the
indictment charging the substantive offense to which it refers.
-4-
The real issue in this case is whether Price was
substantially prejudiced by the Commonwealth's procedure of
separately indicting him for first-degree robbery and as a
first-degree PFO. Given the fact that Price was arraigned on
the PFO charge nearly one full month before he proceeded to
trial, we do not conclude that he was in any way deprived of
notice of or an opportunity to defend against the charge. As
stated in Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L. Ed.
2d 446 (1962):
(D)ue process does not require advance notice
that the trial on the substantive offense will be
followed by an habitual criminal proceeding.
(Citation omitted).
Nevertheless, a defendant must receive
reasonable notice and an opportunity to be
heard relative to the recidivist charge even if
due process does not require that notice be
given prior to the trial on the substantive
offense. 368 U.S. at 452, 82 S.Ct. at 503.
If Price did need more time to adequately prepare his
defense to the PFO charge in this case, he could have
requested a continuance for this purpose. The record reflects
that Price did not challenge the Commonwealth's evidence on
the PFO charge.
In this case, we recognize the trial court's displeasure with the prosecutor
for postponing trial and then bringing an additional charge against Hill. However, the
very nature of a PFO charge “involve[s] the status of the offender and the length of the
punishment, not a separate or independent criminal offense.” White v. Commonwealth,
770 S.W.2d 222, 224 (Ky. 1989). Likewise, because a PFO charge is a status offense, a
defendant can be subject to retrial without violating the constitutional provisions against
double jeopardy. Id. Consequently, we must reverse the order of Kenton Circuit Court
dismissing the PFO charge against Hill. We do not find any evidence of prosecutorial
-5-
misconduct in the record before us, and we will not otherwise speculate as to the rationale
of the trial court. Furthermore, we find the delay in bringing the PFO charge did not
actually prejudice Hill's defense. When the court arraigned Hill on the PFO charge, there
was no trial date set for any of the charges. Hill would have had the opportunity to ask
for a trial date which allowed adequate time to prepare a defense to the PFO charge. See
Price, supra, at 750.
For the reasons stated herein, the order of Kenton Circuit Court is vacated
and remanded for further proceedings consistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General
Justin D. Durstock
Covington, Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.