PARKS (JOHNATHAN D.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 23, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000287-MR
JOHNATHAN D. PARKS
v.
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 07-CR-00086
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND TAYLOR, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: Johnathan D. Parks appeals from a judgment of the
Muhlenberg Circuit Court sentencing him to ten years’ imprisonment in
accordance with a conditional guilty plea to one count of manufacturing
methamphetamine. Parks contends that the trial court erred by failing to grant his
1
Senior Judge Michael L. Henry 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.
motion for a continuance and by denying his motion to suppress evidence seized in
a warrantless search. After our review, we find no reversible error and affirm.
FACTS AND PROCEDURAL HISTORY
The following facts were set forth in testimony given at a suppression
hearing. On the night of May 14, 2007, Curtis McGehee and Mike Chambers,
special deputies of the Muhlenberg County Sheriff’s Department, were assigned to
observe anhydrous ammonia tanks at Bickett Farms in Muhlenberg County. The
sheriff’s department had decided to watch the tanks from time to time due to past
thefts of anhydrous ammonia, which is used to make methamphetamine, from the
property.
At approximately 12:47 a.m., the officers left Bickett Farms and
traveled for about half of a mile on Kentucky Highway 175 when they observed a
truck stopped on a side road next to the highway. Two men were standing next to
the truck. The officers pulled over behind the truck to see if the individuals needed
help and to investigate because of the truck’s proximity to Bickett Farms at that
time of night. McGehee testified that people stealing anhydrous ammonia from
Bickett Farms had previously used that road as a place to park their vehicles and to
access the property on foot. While Chambers called in the truck’s license plate
number to dispatch, McGehee exited his vehicle and began speaking to the two
men standing next to the truck, one of whom was Parks.
The men told McGehee that their vehicle had broken down on their
way to see a girl in Livermore. McGehee noticed that the men were nervous and
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would not make eye contact with him. As McGehee approached the truck, he
shined his flashlight through the open passenger door and saw a hose with a
connector valve wrapped in black electrical tape attached to it on the floor of the
truck. McGehee testified that anhydrous ammonia thieves had left similar hoses at
Bickett Farms in the past and that he had also seen this type of hose at
methamphetamine cook sites.
When McGehee saw the hose, he asked the two men to step to the rear
of the truck. He shined his flashlight into the bed of the truck and saw a black air
tank with no hose attached to it. McGehee also noticed that the tank had a valve
that had turned a dark green color. McGehee noted that valves commonly turn
green or blue when a tank contains anhydrous ammonia and that many anhydrous
ammonia thieves painted such tanks black, brown, or camouflage in order to
conceal them from detection.
Parks and the other individual were subsequently detained, and
McGehee called more police officers to the scene. McGehee indicated that he
believed the men had committed a criminal offense at this point because they were
in possession of two items commonly used in the manufacturing of
methamphetamine. McGehee nevertheless asked Parks for consent to search the
truck, but Parks denied that it belonged to him. He later recanted and told
McGehee that the truck was his but that he had just gotten it back from the shop, so
some things in the truck might not belong to him.
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Approximately one hour later, Chief Special Deputy Shannon Albro
and Deputy Tommy Nantz arrived on the scene. McGehee testified that he heard
Parks give Albro consent to search his truck, and Nantz performed a warrantless
search. Nantz testified that he did not hear Parks give Albro permission to search
the truck but that Albro had told him that such permission had been given. Nantz
also indicated that Parks was under arrest at the time the search was performed.
The search ultimately produced thirty-eight pseudoephedrine pills, eight lithium
batteries, clear tubing, and a green hose that tested positive for anhydrous
ammonia.
On June 15, 2007, the Muhlenberg County grand jury charged Parks
in an indictment with manufacturing methamphetamine, second or subsequent
offense; possession of anhydrous ammonia in an unapproved container with intent
to manufacture methamphetamine, second or subsequent offense; possession of
marijuana, less than eight ounces; and being a second-degree persistent felony
offender. On June 25, 2007, Parks appeared in open court with counsel and
entered a plea of “not guilty” to all charges.
On December 14, 2007, Parks filed a motion to suppress any evidence
seized from his truck at the time of his arrest on the grounds that his detention and
the resulting warrantless search of the truck were illegal. Parks contended that he
did not give the police consent to search the vehicle and that the police had neither
probable cause nor reasonable suspicion of criminal activity that justified a search
and seizure. Following an evidentiary hearing, the trial court entered an order on
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December 18, 2007, denying the motion to suppress. The court explained its
decision as follows:
The Defendant primarily argues that this was a
warrantless search, and the police must have a
reasonable, articulable suspicion that a crime was being
committed before the police can detain the defendant
beyond the initial investigatory stop. Defendant further
argues that once the police determined that no traffic
violations were being committed, he should have been
free to leave. This Court must disagree with the
Defendant.
At the time Officer McGehee observed the hose in
the passenger side of the truck and the tank in the bed of
the truck, Officer McGehee had a reasonable, articulable
suspicion that a crime was being committed, being either
the theft of anhydrous ammonia or the possession of the
equipment used in the manufacturing of
methamphetamine. In fact, Officer McGehee had
probable cause to believe that evidence of a crime was in
the vehicle.
The Defendant gave verbal consent to Deputy
Albro to search the vehicle. One of the exceptions to the
prohibition against warrantless searches is the consent to
search. In addition, and in absence of any consent, the
officers had probable cause to arrest the Defendant, and
therefore, the search incident to arrest exception would
also apply.
On January 7, 2008 – two days prior to his scheduled trial date –
Parks filed a motion for a continuance so that his attorney could review his medical
records in order to determine if there was a need for a competency hearing. Parks
had apparently been involved in an automobile accident in March 2007 that
resulted in brain trauma and left him in a coma for a few weeks. From speaking
with Parks’ family, defense counsel believed that Parks’ injuries could have an
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effect on his competency to stand trial and wanted to explore that possibility
further. However, when defense counsel was asked by the trial judge if he had had
any difficulty meeting with Parks, getting factual information from him, or
preparing for trial, he could not point to any particular instances in which such
problems had occurred. Defense counsel also noted that he was aware of Parks’
medical history when he was first assigned the case in November 2007 but that he
only realized its possible significance when he talked to Parks’ family. The trial
judge noted in response that a claim had not been made that Parks had suffered any
memory loss as a result of the accident and that Parks’ previous attorney (who had
withdrawn from representation because of a conflict of interest) had never
expressed any concern that Parks’ competency was in issue. Therefore, Parks’
motion for a continuance was denied.
Subsequently, on January 9, 2008, Parks filed a motion to enter an
Alford2 guilty plea to the charge of manufacturing methamphetamine after reaching
a plea agreement with the Commonwealth. The guilty plea was conditional, as the
agreement expressly indicated that Parks had reserved the right to suppress the trial
court’s suppression ruling. However, the agreement contained no language
concerning the court’s denial of Parks’ motion for a continuance. Moreover,
during the ensuing plea colloquy, the trial judge acknowledged that Parks had
reserved the right to appeal the suppression decision but said nothing about
whether the continuance issue was subject to review on appeal. Parks’ counsel
2
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
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was similarly silent on this issue and raised no objections or corrections to the trial
judge’s statements in this regard. The trial court subsequently entered an order
accepting Parks’ guilty plea.
On January 24, 2008, the trial court entered a judgment finding Parks
guilty of manufacturing methamphetamine and sentencing him to ten years’
imprisonment. The judgment contained no language as to the issues preserved for
appeal as part of Parks’ conditional plea. This appeal followed.
ISSUES
Parks raises two grounds for relief on appeal. He first contends that
the trial court erred when it denied defense counsel’s motion for a continuance so
that Parks’ medical records could be obtained and reviewed to determine whether a
competency hearing was necessary. Parks also argues that the trial court erred
when it denied his motion to suppress evidence seized in the warrantless search.
He specifically maintains that the officers did not obtain valid consent to search his
truck and that they lacked probable cause to arrest him, resulting in an invalid
search incident to arrest. We will address the continuance and suppression issues
in turn.
1. Motion for a Continuance
Parks first contends that the trial court erred in denying his motion for
a continuance so that his attorney could review his medical records. The
Commonwealth argues in response that Parks has failed to properly preserve this
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issue for appellate review because he did not reserve the issue in writing when he
entered his conditional guilty plea. The Commonwealth relies upon Kentucky
Rules of Criminal Procedure (RCr) 8.09, which provides:
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. A
defendant shall be allowed to withdraw such plea upon
prevailing on appeal. (Emphasis added).
The Commonwealth notes that Parks failed to specify the continuance issue in
writing as part of his plea and, therefore, the issue should be deemed waived.
However, in the Supreme Court of Kentucky’s recent opinion in
Dickerson v. Commonwealth, 278 S.W.3d 145 (Ky. 2009), the Court afforded
some leniency to defendants when it comes to determining whether an issue raised
on appeal from a conditional guilty plea is properly preserved for review. The
Court held that it would consider such issues on appeal only if they:
(1) involve a claim that the indictment did not charge an
offense or the sentence imposed by the trial court was
manifestly infirm, or (2) the issues upon which appellate
review are sought were expressly set forth in the
conditional plea documents or in a colloquy with the trial
court, or (3) if the issues upon which appellate review is
sought were brought to the trial court’s attention before
the entry of the conditional guilty plea even if the issues
are not specifically reiterated in the guilty plea
documents or plea colloquy.
Id. at 149. Here, Parks makes no claim that the indictment failed to charge an
offense or that the sentence imposed against him was somehow infirm. It is also
apparent that the continuance issue was not expressly set forth as a ground for
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review in the conditional plea documents or in Parks’ plea colloquy with the trial
court. Therefore, if this issue is to be considered preserved for our consideration,
we must determine if it was sufficiently brought to the trial court’s attention as an
issue upon which appellate review was sought before Parks’ guilty plea was
entered.
As indicated above, Parks’ counsel argued two days before entry of
Parks’ conditional guilty plea that a continuance was necessary in order for him to
review Parks’ medical records. Subsequent to the trial court’s denial of this
motion, Parks entered his plea. Thus, it could perhaps be argued that the trial court
was aware of the issue. However, there is nothing in the record that could leave
one to reasonably believe that Parks expressed a wish to pursue the issue on
appeal. The plea documents made specific reference only to the suppression issue
in terms of what was being preserved for review, yet Parks’ counsel made no
efforts to “correct” this detail. Moreover, the trial judge explicitly told Parks
during the plea colloquy that the suppression issue could be raised on appeal but
made no reference whatsoever to the continuance issue. Nonetheless, Parks’
counsel made no efforts to argue that he also wished to pursue the latter as an
avenue for relief. While Dickerson certainly affords a defendant leeway in terms
of preserving an issue for appeal as part of a conditional guilty plea, we do not
believe that a sufficient showing has been made here that Parks wished to reserve
the continuance issue as part of his plea agreement. Therefore, we agree with the
Commonwealth that the issue is not properly before us on appeal.
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Even assuming, however, that the issue was preserved for our review,
no error can be found here. “The granting of a continuance is in the sound
discretion of a trial judge, and unless from a review of the whole record it appears
that the trial judge has abused that discretion, this court will not disturb the
findings of the court.” Williams v. Commonwealth, 644 S.W.2d 335, 336-37 (Ky.
1982). Therefore, “a conviction will not be reversed for failure to grant a
continuance unless that discretion has been plainly abused and manifest injustice
has resulted” Taylor v. Commonwealth, 545 S.W.2d 76, 77 (Ky. 1976).
The standard used by trial courts for deciding whether to grant a
continuance is set forth in RCr 9.04, which provides in relevant part that “[t]he
court, upon motion and sufficient cause shown by either party, may grant a
postponement of the hearing or trial.” In this case, defense counsel offered no
evidence that he was having a hard time communicating with his client or that his
client did not understand the legal proceedings or the charges against him. Instead,
he merely stated that Parks had been in a car accident in 2007, in which he suffered
a number of serious injuries, and that his family had noticed a change in his
personality since that time. Defense counsel could not point to any instances in
which he had had difficulty communicating with Parks or any other facts that
would bring Parks’ competency into issue. Instead, he indicated that he just
wanted to look into Parks’ medical records regarding the accident to see if
anything therein might merit a competency hearing. He further informed the court
that he did not know how long this investigation would take. We believe that
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based on the record and defense counsel’s arguments, Parks failed to show
sufficient cause to support the granting of a continuance. Therefore, we cannot say
that the trial court abused its discretion in denying his motion for such, and this
claim of error must consequently be rejected. Parks’ alternative claim that this
case should be remanded for a competency hearing is similarly unavailing.
2. Motion to Suppress
Parks next argues that the trial court erred when it denied his motion
to suppress evidence seized by police in the warrantless search of his vehicle. He
contends that the search was warrantless on two grounds. First, the police did not
obtain valid consent to search. Second, the police lacked probable cause to arrest
him and, as a result, could not conduct a valid search incident to arrest.
The standard of review for the denial of a motion to suppress is set
forth in Commonwealth v. Neal, 84 S.W.3d 920 (Ky. App. 2002). It “requires that
we first determine whether the trial court’s findings of fact are supported by
substantial evidence. If they are, then they are conclusive.” Id. at 923; see also
RCr 9.78. “Based on those findings of fact, we must then conduct a de novo
review of the trial court’s application of the law to those facts to determine whether
its decision is correct as a matter of law.” Neal, 84 S.W.3d at 923.
In this case, the police did not obtain a search warrant before they
searched Parks’ truck. Therefore, the Commonwealth has the burden of showing
that the search fits within an exception to the warrant requirement in order to be
allowed to use the seized evidence at trial. Gallman v. Commonwealth, 578
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S.W.2d 47, 48 (Ky. 1979). There are two exceptions to the warrant requirement
pertinent to this case: consent to search and search conducted incident to a valid
arrest.
“Consent to search is an exception to the warrant requirement.”
Farmer v. Commonwealth, 169 S.W.3d 50, 52 (Ky. App. 2005). Parks argues that
he did not consent to the search of his truck and that the Commonwealth did not
meet its burden of showing by a preponderance of the evidence, through clear and
positive testimony, that valid consent to search had been obtained. The trial court
concluded that consent had been given; therefore, we must determine if this
conclusion was supported by substantial evidence. Neal, 84 S.W.3d at 923. At the
suppression hearing, Deputy McGehee testified that he personally heard Parks give
Deputy Albro consent to search the vehicle. While it obviously would have been
preferable for Detective Albro to give testimony on this issue, Parks presented no
evidence to refute McGehee’s statement. Therefore, the facts provided at the
suppression hearing support the trial court’s conclusion that Parks gave consent to
search in this case.
Parks attempts to salvage his position by contending that he was
coerced into consenting to a search of his truck because he was detained for an
hour before he was asked for consent, because he was handcuffed when asked to
give consent, and because several police officers were present when he was asked
to give consent. Because of these facts, Parks argues that this show of authority
coerced him to give consent to search against his will. Parks notes that consent to
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search must be “voluntarily given, and not the result of duress or coercion, express
or implied.” Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 2059,
36 L.Ed.2d 854 (1973). While Parks presents an interesting argument, the
Commonwealth correctly observes that he failed to raise this issue before the trial
court. Therefore, it is unpreserved for our review. Skaggs v. Assad, By and
Through Assad, 712 S.W.2d 947, 950 (Ky. 1986) (“It goes without saying that
errors to be considered for appellate review must be precisely preserved and
identified in the lower court.”); Kennedy v. Commonwealth, 544 S.W.2d 219, 222
(Ky. 1976) (“[A]ppellants will not be permitted to feed one can of worms to the
trial judge and another to the appellate court.”).
Even assuming that valid consent to search was not given in this case,
however, we believe that the trial court did not err in finding that the police had
probable cause to arrest Parks; therefore, the search-incident-to-arrest exception to
the warrant requirement applied. “Our Supreme Court has recognized that a
warrantless search preceding or following an arrest does not violate the
constitution so long as probable cause existed to make the arrest prior to the
search.” Lynn v. Commonwealth, 257 S.W.3d 596, 598 (Ky. App. 2008). Deputy
Nantz testified that Parks was under arrest when the other police officers arrived to
conduct their search. Therefore, the question is whether probable cause existed to
support his arrest based on the facts as they stood at the time of the officers’
arrival.
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Initially, the police approached Parks and his companion because their
truck had stalled and to investigate why they were so close to Bickett Farms in the
middle of the night. Deputy McGehee testified that the side road on which the
men were found had been commonly used by individuals as an entry into the
Bickett property for the theft of anhydrous ammonia. During this encounter,
McGehee observed, in plain view, two items that he recognized as being
commonly used in the manufacturing of methamphetamine: a hose with a
connector valve wrapped in black electrical tape attached to it along with a black
air tank with a valve that had turned a dark green color. McGehee noted that
valves commonly turn green or blue when a tank contains anhydrous ammonia and
that many anhydrous ammonia thieves painted such tanks black, brown, or
camouflage to conceal them from detection. McGehee testified that he believed
the men had committed a criminal offense at this point because they were in
possession of two items commonly used in the manufacturing of
methamphetamine; therefore, probable cause existed for an arrest. See KRS
218A.1432(1)(b) (“A person is guilty of manufacturing methamphetamine when he
knowingly and unlawfully . . . [w]ith intent to manufacture methamphetamine
possesses two (2) or more chemicals or two (2) or more items of equipment for the
manufacture of methamphetamine.”). Parks argues that based on these facts there
was insufficient probable cause to support an arrest. We disagree.
McGehee articulated in his testimony that the side roads near Bickett
Farms were often used for accessing that property and stealing anhydrous
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ammonia. Further, he testified that the aforementioned equipment found in plain
view in Parks’ truck is typically used in the manufacturing of methamphetamine.
Based on these facts, McGehee had an objective basis to believe that Parks was
engaged in criminal activity and, thus, probable cause to arrest him and to search
the vehicle. Accordingly, the search-incident-to-lawful-arrest exception to the
search warrant requirement was applicable here, and the trial court did not abuse
its discretion by denying Parks’ motion to suppress evidence.
The judgment of the Muhlenberg Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Steven J. Buck
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
David B. Abner
Assistant Attorney General
Frankfort, Kentucky
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