MILLS (ROBERT ELLIS) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 6, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001930-MR
ROBERT ELLIS MILLS
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, SENIOR JUDGE
ACTION NO. 09-CR-001920
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART AND
REVERSING IN PART
** ** ** ** **
BEFORE: MOORE AND WINE, JUDGES, AND TAYLOR, CHIEF JUDGE.
MOORE, JUDGE: Robert Ellis Mills appeals the Jefferson Circuit Court’s
judgment convicting him of Theft of Identity. After a careful review of the record,
we reverse the Jefferson Circuit Court’s judgment in part to the extent that a fine
was imposed against Robert despite his indigency status, but we affirm the
remainder of the judgment because Robert’s claims lack merit or they were not
preserved for appellate review.
I. FACTUAL AND PROCEDURAL BACKGROUND
According to Robert’s arrest warrant, Louisville Metro Police
Department Officer Scott McConnell was called after Robert was detained by
Walmart loss prevention employees for stealing merchandise. Robert told Officer
McConnell that he did not have any identification. Officer McConnell warned
Robert “that giving false information was a crime.” Robert nevertheless proceeded
to give Officer McConnell personal information that belonged to the victim, who
was Robert’s brother, David Mills. This information included David’s name, date
of birth, and social security number. The arrest warrant states that this information
was given to the officer for the purpose of avoiding detection by police. Because
Robert gave the incorrect information to the officer, David was charged with theft
by unlawful taking under $300.00. After David learned of the charge, he contacted
the officer and informed him that this was not the first time Robert had used his
information.
Robert filed a waiver of rights stating he understood that by doing so,
he was waiving his right to a preliminary hearing to determine if there was
probable cause to believe he had committed a felony and that he was also waiving
the right to have his case presented to the grand jury so that “felony charges against
[him would be] prosecuted only by an indictment returned by the Grand Jury.”
The waiver further stated that Robert understood that after he signed the waiver,
the Commonwealth’s attorney would file an information against him charging him
with the offense of Theft of Identity.
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That same day, the Commonwealth executed an information charging
Robert with Theft of Identity, a Class D Felony, pursuant to KRS1 514.160. The
information provided that Robert had
committed the offense of Theft of Identity when he
knowingly possessed or used identifying information of
another person, such as name, social security number,
birth date, personal identification number or code, which
is kept in documents, photo or electrical copies, computer
storage, or any other form of document retrieval and
storage, and the theft was committed with the intent to
represent that he was the other persons [sic] for the
purpose of
a) Depriving the other person of property;
b) Obtaining benefits or property to which he or she
would otherwise not be entitled;
c) Making financial or credit transactions using the other
person’s identity;
d) Avoiding detection; or
e) Commercial or political benefit.
The Commonwealth propounded an offer on a plea of guilty, which
stated that the charge of Theft of Identity carried a possible penalty of one to five
years of imprisonment. It provided that the facts of the case were as follows: “On
5/10/09, [Robert] gave victim’s name and personal info[rmation] to avoid detection
by police after [Robert] took items from Walmart.” Additionally, the
Commonwealth’s offer stated that in exchange for Robert’s guilty plea to the Theft
of Identity charge, the Commonwealth would recommend a sentence of two years
of imprisonment, with probation in the court’s discretion. The Commonwealth’s
1
Kentucky Revised Statute(s)
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offer further noted that Robert’s guilty plea was conditional, pending the Kentucky
Supreme Court’s decision in Crouch v. Commonwealth, 323 S.W.3d 668 (Ky.
2010).
Robert moved to enter a guilty plea in accordance with the
Commonwealth’s offer on a plea of guilty. The circuit court accepted Robert’s
conditional guilty plea and subsequently sentenced him to two years of
imprisonment, but “rendition of [the] judgment [was] withheld and [Robert was]
placed on probation under the supervision of the Division of Probation and Parole
for a period of five years.” The court also ordered Robert to pay $250.00 of his
$1,000.00 felony fine, with the remaining $750.00 being probated.
Robert now appeals,2 contending that: (a) the Commonwealth was
required to prosecute him for the misdemeanor offense of Giving a Peace Officer a
False Name under KRS 523.110, rather than the felony offense of Theft of Identity
under KRS 514.160; (b) the arbitrary prosecution violated his due process and
equal protection rights; (c) the title of the Theft of Identity statute, the fact that
there was no pecuniary gain in this case, the rule of lenity, and the absurd or
unreasonable result that occurred from applying the felony statute are all
miscellaneous reasons for overturning his conviction; and (d) the trial court erred
in assessing a fine against him despite the fact he was indigent.
II. ANALYSIS
2
We note that when Robert filed his opening brief on appeal, Crouch had not yet been decided
by the Kentucky Supreme Court. The Commonwealth thereafter moved to hold the appeal in
abeyance pending a decision in Crouch, which this Court granted. Once Crouch was rendered
by the Supreme Court, the Commonwealth moved to return the case to the active docket. Robert
then filed a reply brief addressing Crouch.
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A. CLAIM THAT ROBERT SHOULD HAVE BEEN PROSECUTED
FOR A MISDEMEANOR INSTEAD OF A FELONY
Robert first alleges that the Commonwealth was required to prosecute
him for the misdemeanor offense of Giving a Peace Officer a False Name under
KRS 523.110, rather than the felony offense of Theft of Identity under KRS
514.160. Pursuant to KRS 523.110,
(1) A person is guilty of giving a peace officer a false
name or address when he gives a false name or address to
a peace officer who has asked for the same in the lawful
discharge of his official duties with the intent to mislead
the officer as to his identity. The provisions of this
section shall not apply unless the peace officer has first
warned the person whose identification he is seeking that
giving a false name or address is a criminal offense.
(2) Giving a peace officer a false name or address is a
Class B misdemeanor.
However, KRS 514.160, under which Robert was convicted, provides as follows:
(1) A person is guilty of the theft of the identity of
another when he or she knowingly possesses or uses any
current or former identifying information of the other
person or family member or ancestor of the other person,
such as that person’s or family member’s or ancestor’s
name, address, telephone number, electronic mail
address, Social Security number, driver’s license number,
birth date, personal identification number or code, and
any other information which could be used to identify the
person, including unique biometric data, with the intent
to represent that he or she is the other person for the
purpose of:
****
(d) Avoiding detection . . . .
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Robert’s statutory construction argument is not preserved. Robert
signed a waiver of his rights that specified he waived his right to have the felony
charge against him prosecuted only by grand jury indictment. Additionally, the
waiver of his rights stated that Robert understood that by signing the waiver, “the
Commonwealth’s Attorney will file an information in the Jefferson Circuit Court
charging me with the following offense[]: Theft of Identity.” Accordingly, an
information was filed charging him with the offense of Theft of Identity, rather
than charging him with the misdemeanor of Giving a Peace Officer a False Name.
Thus, Robert waived any right to challenge the prosecutor’s decision to charge him
with the felony, as opposed to the misdemeanor, by acquiescing in writing to being
charged with the felony. Consequently, this claim is not preserved for appellate
review.
B. CLAIM THAT PROSECUTOR ACTED ARBITRARILY
Next, Robert argues that the prosecutor’s act of choosing to prosecute
him for Theft of Identity rather than Giving a Peace Officer a False Name was
arbitrary and resulted in a violation of Robert’s due process and equal protection
rights. His argument is founded on the Crouch case recently rendered by the
Supreme Court. See Crouch, 323 S.W.3d 668.
The appellant in Crouch, like Robert, argued that “he should have
been prosecuted for the misdemeanor offense of giving a false name to a police
officer instead of the felony offense of theft of identity.” Id. at 671. However, in
his reply brief, Robert concedes that Crouch is distinguishable from his case. It is
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distinguishable because: (1) Crouch was indicted by a grand jury on the felony
charge, while Robert was charged by an information filed by the prosecutor; and
(2) Crouch was not warned by the officer that giving false identification to an
officer was a crime, but Robert was given this warning.
In Crouch, the Kentucky Supreme Court held that, contrary to
Crouch’s argument
that it is a personal choice on the part of the officer or the
Commonwealth’s Attorney to make the decision under
which statute to charge a person[, . . .] the choice of
which–if any–offenses for which an indictment should be
returned is a matter within the province of the grand jury.
So, contrary to Crouch’s argument, a prosecutor does not
have unfettered discretion to charge a defendant on a
whim. The prosecution’s decision to seek identity theft
charges against Crouch was not arbitrary or otherwise
improper because the lack of a warning by the arresting
officer meant that Crouch could not properly have been
charged with giving a false name to a peace officer.
Id. at 672-73 (internal quotation marks and footnotes omitted). The Court in
Crouch then rejected the argument “that prosecutorial vindictiveness or,
alternatively, sheer randomness was the reason he was charged with the felony
theft of identity offense instead of the misdemeanor offense of giving a false name
to a peace officer.” Id. at 673. Thus, according to Crouch, when a defendant is
charged by indictment, it is the grand jury’s decision which crimes to charge him
with, not the prosecutor’s.
However, as previously noted, Robert’s case is different from
Crouch’s because Robert acquiesced in his waiver of rights to the prosecutor
charging him by information with the felony of Theft of Identity, rather than by
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indictment. Additionally, Robert’s conduct met the elements of the crime of Theft
of Identity. Therefore, he cannot now claim error when the prosecutor charged
him with a felony when Robert essentially agreed to the charge when he
voluntarily waived his right to be prosecuted by a grand jury indictment.
Consequently, this claim lacks merit.
In any case, because Robert waived his right to indictment by grand
jury, he granted the prosecutor discretion to decide whether to charge him with the
felony or the misdemeanor. Thus, there is no error.
C. MISCELLANEOUS CLAIMS FOR OVERTURNING CONVICTION
Robert also argues in his appellate brief that the title of the Theft of
Identity statute, the fact that there was no pecuniary gain in this case, the rule of
lenity, and the absurd or unreasonable result that occurred from applying the felony
statute are all miscellaneous reasons for overturning his conviction. However,
Robert did not raise these claims in the circuit court. Thus, we will not consider
them for the first time on appeal. See Kennedy v. Commonwealth, 544 S.W.2d
219, 222 (Ky. 1976) (“The appellants will not be permitted to feed one can of
worms to the trial judge and another to the appellate court.”).
D. CLAIM REGARDING FINE
Finally, Robert contends that the trial court erred in assessing a fine
against him despite the fact he was indigent. The Commonwealth acknowledges
that the fine should not have been imposed because the record reveals that Robert
was represented by the public defender’s office.
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Because Robert had counsel appointed for him in the trial court, as is
evidenced by the fact that he was represented by the public defender’s office, he
was necessarily indigent. See Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky.
2010) (citing Simpson v. Commonwealth, 889 S.W.2d 781, 784 (Ky. 1994)).
Therefore, pursuant to KRS 534.030(4) and KRS 31.110(1)(b), he should not have
been fined by the trial court.
Accordingly, the judgment of the Jefferson Circuit Court is reversed
in part, concerning the imposition of the fine. The remainder of the Jefferson
Circuit Court’s judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth B. McMahon
Assistant Public Defender
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky
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