SHANNON GIBSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 8, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
SUPREME COURT GRANTED DISCRETIONARY REVIEW:
DECEMBER 12, 2007
(FILE NO. 2007-SC-0481-D)
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001147-MR
SHANNON GIBSON
v.
APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 03-CR-00119
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON AND VANMETER; JUDGES; PAISLEY,1 SENIOR JUDGE.
VANMETER, JUDGE: Shannon Gibson appeals from a Grayson Circuit Court order
dismissing an indictment against her without prejudice. The issue we must resolve is
Senior Judge Lewis G. Paisley, 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.
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whether the circuit court abused its discretion in refusing to issue the dismissal with
prejudice. Finding no error, we affirm.
In September 2003, Shannon Gibson and Travis Wilson were indicted by
the Grayson County Grand Jury for theft of services over $300. The basis of the charge
was an alleged diversion of electrical service by the use of a wire on an electrical meter to
obtain electricity without it being registered on the meter. The property serviced by the
meter was commercial lease space, and the electricity used by Gibson's and Wilson's
space was paid for by an adjacent business, Leitchfield Mobility. After a number of
continuances, the Commonwealth filed a motion to dismiss in January 2006,
approximately ten days before trial. The trial court granted the motion and entered an
order dismissing the indictment without prejudice.
Gibson then filed a motion to amend the order to provide that the dismissal
was with prejudice. The trial court denied the motion and Gibson appeals.
Gibson advances a number of reasons that her dismissal should be with
prejudice, primarily centered around the evidence she expected to introduce at trial to
both obtain a not guilty verdict, and “clear her name.”
While we have carefully considered the evidence presented, we disagree
with Gibson's analysis that the factors set forth under Sublett v. Hall, 589 S.W.2d 888
(Ky. 1979), apply herein to require a dismissal with prejudice. Gibson's citation to
Sublett is based on her argument that CR2 41.01(2) authorizes a trial court to impose
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Kentucky Rules of Civil Procedure.
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“such terms and conditions as [it] deems proper[ ]” on any dismissal not provided in CR
41.01(1). While we acknowledge the Kentucky Supreme Court cited CR 41.01 in
Commonwealth v. Berry, 184 S.W.3d 63, 65 (Ky. 2005), to support the proposition that
the dismissal of a criminal indictment before the swearing of a jury is without prejudice,
we do not believe that CR 41.01 is applicable to this criminal case. Specifically, RCr3
13.04 applies the Rules of Civil Procedure to criminal cases “to the extent not superseded
by or inconsistent with” the criminal rules. The criminal rules in fact contain a rule
which, like CR 41.01(1), expressly addresses “voluntary” dismissals by the “plaintiff” in
that under RCr 9.64, “[t]he attorney for the Commonwealth, with the permission of the
court, may dismiss the indictment . . . prior to the swearing of the jury[.]”
The other difficulty in applying the Sublett factors to this case is that
Sublett was a civil case. We have found, and Gibson has cited, no Kentucky case,
reported or unreported, which applies these factors to a criminal dismissal.
The issue in this case, as we view it, is whether a trial court has the
discretion to order, over the objection of the Commonwealth, that a dismissal of a
criminal indictment is with prejudice. Again, we have found, and the parties have cited,
no Kentucky case which directly addresses this issue. Further, even if we assume without
deciding that dismissal with prejudice is authorized, no Kentucky case has set forth any
parameters to be considered by the trial courts in making such determination.
In Hoskins v. Maricle, 150 S.W.3d 1 (Ky. 2004), the Kentucky Supreme
Court took pains to delineate the separation of powers between the respective branches of
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Kentucky Rules of Criminal Procedure.
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government with respect to criminal offenses, noting that “'Kentucky is a strict adherent
to the separation of powers doctrine.'” Id. at 11 (quoting Diemer v. Commonwealth, 786
S.W.2d 861, 864 (Ky. 1990)). Thus, the power to define crimes and assign their penalties
belongs to the legislative branch; the power to charge persons with crimes and to
prosecute those charges belongs to the executive branch; and the power to conduct
criminal trials, to adjudicate guilt, and to impose sentences within the penalty range
prescribed by the legislature belongs to the judicial branch of government. Id. at 11-12.
Because of the separation of powers, a trial court has limited power,
“usually related to a defendant's claim of a denial of the right to a speedy trial, . . . to
dismiss, amend, or file away before trial a prosecution based on a good indictment.” Id.
at 13. Thus, a trial court does not have authority to dismiss criminal charges prior to trial
without the Commonwealth's consent. Commonwealth v. Isham, 98 S.W.3d 59 (Ky.
2003). In this same vein, “it is not within the province of the trial judge to evaluate the
evidence in advance to determine whether a trial should be held. The time for such an
evaluation is upon motion for a directed verdict.” Commonwealth v. Hicks, 869 S.W.2d
35, 37 (Ky. 1994). Thus, for us to adopt Gibson's analysis and direct a trial court to
evaluate evidence in advance of trial would violate the separation of powers.
Finally, KRS 505.030 appears to curtail the court's ability to limit further
prosecutions for an indictment which was dismissed under RCr 9.64. This statute sets out
four circumstances which serve to bar a subsequent prosecution:
(1) The former prosecution resulted in:
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(a) An acquittal, or
(b) A conviction which has not subsequently
been set aside; or
(2) The former prosecution resulted in a determination
by the court that there was insufficient evidence to
warrant a conviction; or
(3) The former prosecution was terminated by a final
order or judgment, which has not subsequently been
set aside, and which required a determination inconsistent
with any fact or legal proposition necessary to a
conviction in the subsequent prosecution; or
(4) The former prosecution was improperly terminated after
the first witness was sworn but before findings were
rendered by a trier of fact. Termination under either of
the following circumstances is not improper.
(a) The defendant expressly consents to the termination
or by motion for mistrial or in some other manner
waives his right to object to the termination; or
(b) The trial court, in exercise of its discretion, finds
that the termination is manifestly necessary.
Only KRS 505.030(2) approaches the scenario implicitly urged by Gibson,
i.e., “a determination by the court that there was insufficient evidence to warrant a
conviction[.]” The commentary to KRS 505.030, however, makes clear that this
determination is made only when the trial court, “after hearing the evidence, [concludes]
that the defendant's conviction would have been unwarranted.” Such a situation would
occur in a criminal trial after the presentation of evidence with a motion for a directed
verdict. See Isham, 98 S.W.3d at 62.
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We are aware that in certain other jurisdictions, a trial court's dismissal of a
criminal case with prejudice has been upheld as incident to the court's inherent power to
“administer justice.” See, e.g., State v. Moriwake, 65 Haw. 47, 55-56, 647 P.2d 705, 71112 (1982); State v. Gonzales, 132 N.M. 420, 49 P.3d 681, (App. 2002); State v. Witt, 572
S.W.2d 913, 917 (Tenn. 1978); State v. Sauve, 164 Vt. 134, 140, 666 A.2d 1164, 1167
(1995); see generally, Annotation, Propriety of Court's Dismissing Indictment or
Prosecution Because of Failure of Jury to Agree after Successive Trials, 4 A.L.R.4th
1274 (1981). The common thread in most of those cases, however, has been a
consideration of whether further prosecution should be barred based on one or more
mistrials due to a deadlocked jury. We will leave for another day whether a Kentucky
trial court has such discretion since the facts under the present case involve dismissal
prior to trial.
We are not unsympathetic to Gibson's plight in regard to the fact that her
criminal record may not be expunged of the fact that she was charged with a felony that
was dismissed. See KRS 431.076. Her remedy in this regard, however, lies with the
legislature rather than with the courts.
The order of the Grayson Circuit Court is affirmed.
PAISLEY, SENIOR JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS WITH RESULT ONLY AND FILES
SEPARATE OPINION.
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THOMPSON, CONCURRING: I concur with this result, however, I
disagree with my esteemed colleagues as to the interpretation of the law. Further, I desire
to express my frustration with the current status of Kentucky law on this subject.
The majority opinion in this matter, I believe, proposes to establish a broad
principle that the trial court has no authority to dismiss with prejudice an indictment
absent a request from the Commonwealth. As recited in RCr 9.64, this is the general
rule. The courts, however, have recognized some limited power to dismiss by the
judiciary. The most prevalent wherein there has been a constitutional infringement upon
the rights of the defendant either to a speedy trial or other constitutional infringements.
U.S. v. Gillock, 771 F.Supp. 904, 908 (W.D. Tenn. 1991)
In Commonwealth v. Baker, 11 S.W.3d 585 (Ky. App. 2000), this court
held that the inherent power of the court included the supervisory power to dismiss an
indictment where there had been a flagrant abuse of the grand jury process that resulted
in both actual prejudice and deprived the grand jury of an autonomous and unbiased
judgment. Nevertheless, in Baker, the court held that dismissal under the facts was an
abuse of discretion since there was no indication that the evidence had been irrevocably
tainted.
I believe there is an inherent power of the courts to efficiently and
effectively administer justice, and that whether a case is dismissed with or without
prejudice, would come within the purview of that power.
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In many other states, dismissals with prejudice have been granted by courts
and have been upheld on appeal. See e.g., State v. Jones, 601 A.2d 502 (Vt. 1991). State
v. Marquess, 168 Ariz. 123, 811 P.2d 375 (Ariz. App. 1991). State v. Sadler, 920 So.2d
647 (Fla. App. 5 Dist. 2005). People v. Dowell, 199 Mich. App. 554, 502 N.W.2d
757(Mich. App. 1993). State v. Hart, 723 N.W.2d 254 (Minn. 2006). State ex rel.
Torres v. Montana Eighth Judicial Dist. Court, Cascade County, 877 P.2d 1008 (Mont.
1994). State v. Simmons, 752 A.2d 724 (N.J. Super.App. 2000).
In addition, many other state cases reveal the authority to dismiss, however,
in those cases the court stated that the facts do not justify dismissal with prejudice. See
e.g., State v. Naple, 143 P.3d 358 (Wyo. 2006). State v. Tweeten, 679 N.W.2d 287 (N.D.
2004). State v. Davis, 248 Wis.2d 986, 637 N.W.2d 62 (Wis. 2001). Commonwealth v.
Corbett, 533 N.E.2d 207 (Mass. App. Ct. 1989). State v. Bolen, 13 P.3d 1270 (Kan.
2000).
The constitutions of many of these other states are substantially similar to
our constitution. Therefore, it is my belief, that the judiciary does have the power to
dismiss with prejudice. However, our judiciary has not addressed this problem.
It has been stated that “a grand jury can indict a ham sandwich”, and this is
true. Many times in the grand jury process the defendant is unaware that he is the subject
of a pending indictment. He can present no defense. On many occasions in the grand
jury process, the evidence produced is embellished or perjured by a witness with an
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agenda against the defendant. On many occasions, the person is indicted based upon
inaccurate and untruthful hearsay testimony.
Then, after being unjustly indicted, when the defendant is ready to have his
day in court, the overworked Commonwealth Attorney discovers that the charges cannot
be sustained before a jury. The Commonwealth Attorney then moves the court for a
dismissal without prejudice, and that motion is granted. The defendant wrongfully
indicted, forever, must carry the burden of a felony indictment charge. This criminal
record, even though dismissed, causes damage in employment opportunities, credit
opportunities, and other damages to this wrongfully indicted person.
I believe that our judiciary should propose a criminal rule allowing
dismissal of an indictment with prejudice at the discretion of the trial court after an
evidentiary hearing based upon the evidence presented by the Commonwealth.
We must remember that felonies have no statute of limitations. We must
remember that newly discovered evidence, on some occasions, can cause a reindictment.
Although we must be careful not to infringe upon the right of the prosecution to bring
the guilty to justice, we must balance that need with the injustice which has occurred to
the wrongfully charged.
I would encourage prosecutors to utilize ultimate good faith, and to move
the court for dismissal with prejudice if the Commonwealth Attorney believes he will
never reindict the defendant. I encourage the trial court and defense counsel to attempt to
secure agreed orders with time limits which would allow for conversion to a dismissal
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with prejudice if no reindictment has occurred within a reasonable amount of time after
the dismissal without prejudice.
It is my opinion that a criminal rule proposed by our judiciary could be
rejected by the legislature when presented to the appropriate committees within the
Senate and the House. Therefore, there would be no infringement upon the legislative
branch by utilization of an appropriate criminal rule. A possible criminal rule to begin to
address this injustice would be a rule which would cause all Class D felonies which were
dismissed without prejudice to be converted to a dismissal with prejudice if no
reindictment within two years.
I concur with the conclusion of my esteemed colleagues when they state
that no Kentucky case has set forth any parameters to be considered by the trial court
when making such a determination. I further concur with the result, and I agree with the
statement that we are not unsympathetic to Gibson's plight in regard to the fact that a
criminal record may not be expunged of the fact that she was charged with a felony that
was dismissed. I disagree wherein my colleagues believe that the remedy in this regard,
however, lies with the legislature rather than with the courts.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James F. Dinwiddie
Leitchfield, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
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