BRANTLEY (LEROME) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 18, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000064-MR
LEROME BRANTLEY
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 05-CR-002740
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE.
MOORE, JUDGE: Lerome Brantley appeals the Jefferson Circuit Court’s order
finding that the continuance of his criminal case from March 1, 2006 through
August 15, 2006, was based upon good cause and was both necessary and
1
Senior Judge Sheila R. Isaac, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
reasonable. After a careful review of the record, we affirm because the circuit
court did not err in its findings and Brantley’s claims of speedy trial violations that
allegedly occurred on post-appeal remand were waived.
I. FACTUAL AND PROCEDURAL BACKGROUND
Brantley was a prisoner at the Fountain Correctional Facility in
Alabama when a blood sample was obtained from him pursuant to a search
warrant. See Brantley v. Commonwealth, No. 2006-CA-001356-MR, 2008 WL
109239, *1 (Ky. App. Jan. 11, 2008) (unpublished). In February 2005, that sample
was found to match DNA from a July 2000 reported rape and robbery in Jefferson
County, Kentucky. See id. Several months later, “the Jefferson County
Commonwealth’s Attorney filed a detainer with the Alabama Department of
Corrections. On June 15, 2005, Brantley made his request under the Interstate
Agreement on Detainers (IAD) for a final disposition of all outstanding charges.”
Id. Brantley was brought to Kentucky to face the charges. See id.
Brantley was indicted on September 14, 2005. The following day,
Brantley entered a plea of not guilty and the court told Brantley and his stand-in
counsel that the case was scheduled for trial on March 1, 2006. See id. At the
pretrial conference on November 8, 2005, Brantley’s attorney was present, and the
court asked Brantley’s counsel and the prosecutor “if the March 1, 2006, trial date
was still good for them, [and] both the prosecutor and defense counsel responded
that it was.” Id. at *2. At a December 2005 pretrial conference, defense counsel
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informed the court that Brantley, who had been brought to Kentucky under the
IAD, wanted to be tried within the 180-day IAD time limit. See id.
“On February 16, 2006, [defense counsel] filed a motion to dismiss
the indictment for failure to comply with the IAD.” Id. Several weeks later,
[t]he court denied the motion to dismiss and announced
that it would issue a written order with a new trial date.
Brantley’s counsel said she objected to a trial date
outside the 180 days. The record indicates, however, that
the court found that Brantley had waived the terms of the
IAD from September 15th to March 1st. Therefore, the
court asked what month would be good for the parties for
trial, and Brantley’s counsel again reiterated that she
wanted immediate trial. The prosecutor requested
August. In its order, the court reassigned the jury trial for
August 15, 2006, finding that the Commonwealth’s
motion for continuance “based upon its investigative
officer . . . being in training in Atlanta for a period of
three months, constituted a necessary or reasonable
continuance for good cause.”
Id.
On May 23, 2006, Brantley entered conditional guilty pleas to the
charges of first-degree rape and first-degree robbery in exchange for the
Commonwealth’s sentence recommendation of ten years for each offense to run
concurrently with each other and with the Alabama sentence. See id. The pleas
were conditioned on Brantley being able to appeal the IAD issue. Id. Brantley
was sentenced in accordance with the Commonwealth’s recommendation in the
plea agreement.
Brantley then appealed the IAD issue to this Court, and this Court
stated that his “sole argument [was] that the indictment should have been
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dismissed because he was not brought to trial within the 180-day period required
by Article III of the [IAD].” Id. at *3. This Court found that “Brantley waived his
rights under the IAD” between September 15, 2005 and March 1, 2006 “because
he was aware of the March 1, 2006, jury trial date when he was arraigned on
September 15, 2005, and no written motion to dismiss was filed for an additional
five months, until the time under the statute had passed.” Id. However, the Court
held that the trial court “erred in granting the continuance of the trial from March
to August 15, 2006,” and noted that “Brantley’s counsel asserted his right to [a]
speedy trial several times at both of the hearings in March.” Id. Therefore, this
Court held that “under the IAD, the trial court must find that the continuance
requested by the Commonwealth was based on good cause and was both necessary
and reasonable.” Id.
This Court also found that the trial court’s determination that there
was good cause for a continuance because the lead investigator was in training in
Atlanta for three months was incorrect because the record revealed that the
investigator would have returned from Atlanta in late March and would have been
available if the trial was scheduled for early April. See id. at *4. Thus, the Court
held that “although the trial court found good cause for the continuance, it failed to
find good cause as to the five and one-half month length of the continuance.” Id.
Therefore, the trial court’s decision was vacated and the case was remanded for
“the trial court to determine whether continuing the case for five and one-half
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months following Brantley’s assertion of his right under the IAD was for good
cause and was necessary or reasonable.” Id.
In January 2008, the Commonwealth filed a motion in the circuit court
titled “Commonwealth’s Motion for a Hearing as Required by the Kentucky Court
of Appeals.” (Capitalization changed). However, in the body of the motion, the
Commonwealth did not request a hearing, but merely requested the circuit court to
make the factual findings that this Court had required in its opinion. In his
response to the Commonwealth’s motion, Brantley advised the circuit court that
because the decision of this Court was not yet final until the time passed for filing
either a petition for rehearing or a motion for discretionary review, the circuit court
did not have jurisdiction to hold a hearing and enter a decision at that time.
Brantley then asked the circuit court to order the Commonwealth to make
arrangements for Brantley to be transported back to Kentucky from Alabama so
that an evidentiary hearing could be held to resolve the factual issues.
The record contains a letter from this Court dated February 29, 2008,
informing the circuit court that this Court’s decision had become final. In March
2008, defense counsel moved to dismiss the indictment or, in the alternative, to
order the Commonwealth to ensure Brantley was transported back to Kentucky so
that the circuit court could hold a hearing. The motion also stated that “[i]t
continues to be the defendant’s position that the time limitations imposed by the
[IAD] have expired and he does not waive any arguments or agree to any delay
with respect to those matters.” Approximately a year later, in March 2009, the
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Commonwealth responded to the motion to dismiss, noting that there was a new
prosecutor assigned to the case and that in February 2009, Brantley had filed
another motion to dismiss. The Commonwealth’s response stated it did “not
believe a hearing on the issue [was] necessary, as the [circuit court’s] written
orders and video record serve to document the reason for setting the August 2006
trial date.” Brantley replied, arguing that a hearing was necessary and that the
Commonwealth should arrange for Brantley to be transported to Kentucky for the
hearing. Brantley again reiterated his position that the “time limitations imposed
by the [IAD] have expired,” and the delays should be charged against the
Commonwealth.
In May 2009, defense counsel again filed a motion to dismiss the
indictment. This time, counsel argued that the indictment should be dismissed “for
violation of state and federal constitutional and statutory speedy trial rights.” The
motion asserted, in pertinent part, as follows:
While the time period for speedy trial purposes does not
include the amount of time between conviction and
reversal, the clock again begins to run upon reversal by
the appellate court. Dickerson v. Commonwealth, 278
S.W.3d 145, 150 (Ky. 2009). Thus the time period for
speedy trial purposes, according to Dickerson, supra,
began to run again on February 9, 2008, the date that the
opinion became final according to the Court of Appeals
record. 2 As of the filing of this motion, 437 days have
passed since then.
[ ] Even if Mr. Brantley had not requested final
disposition under the IAD, the 437-day delay in this case,
standing alone, is certainly presumptively prejudicial, as
2
The opinion actually became final on February 29, 2008, according to the record.
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delays of twenty-three months and less have been found
by the appellate court to be presumptively prejudicial for
constitutional speedy trial purposes. Dickerson, 278
S.W.3d at 150.
(Emphasis changed).
In early December 2009, approximately twenty-two months after this
Court’s decision became final, the circuit court entered its order on remand from
this Court. The circuit court made the following relevant findings of fact:
The trial court rescheduled the jury trial for August 15,
2006 after the Commonwealth indicated in open court
that August was the first available date the Assistant
Commonwealth’s Attorney could try the case because he
currently had several murder trials scheduled between
March 14, 2006 and August 2006.
[ ] Specifically, the Assistant Commonwealth’s Attorney
had one murder trial scheduled in March 2006, one in
April 2006, two in May 2006 and one in July 2006.
This Court concludes, having reviewed the record, that
the continuance from March 1 to August 15, 2006 was
based upon good cause and was both necessary and
reasonable.
We note that the circuit court made no mention in its order of Brantley’s motions
to dismiss that were filed following remand by this Court.
Brantley now appeals, contending that: (a) the circuit court should
have held a hearing before entering its findings of fact on remand; and (b) Brantley
was denied his right to a speedy disposition by the post-appeal delay.
II. ANALYSIS
A. CLAIM REGARDING FAILURE TO HOLD A HEARING
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Brantley first alleges that the circuit court should have held a hearing
on remand. Specifically, Brantley argues that the circuit court could not, without a
hearing, make the findings of fact necessary to support its conclusion that the
continuance from March 1, 2006, to August 15, 2006, was for good cause, and was
necessary and reasonable.
We first note that this Court’s prior opinion vacating and remanding
the case to the circuit court for a determination of whether the continuation was for
good cause, and was necessary and reasonable, did not direct the circuit court to
hold a hearing on remand. Additionally, we are unaware of any law that requires a
hearing to make that determination, and Brantley has not cited any such law on
appeal. Therefore, if there was proper factual evidence in the record to support the
circuit court’s findings on remand that the continuation was for good cause, and
was necessary and reasonable, then there was no need for a hearing to gather
further evidence.
On remand, the circuit court found that the continuance from March 1,
2006 to August 15, 2006, was based upon good cause, and was necessary, and
reasonable because in a prior hearing, the Commonwealth requested an August
2006 trial date on the basis that “the Assistant Commonwealth’s Attorney had one
murder trial scheduled in March 2006, one in April 2006, two in May 2006 and
one in July 2006.” The court noted that “the Commonwealth indicated in open
court that August was the first available date the Assistant Commonwealth’s
Attorney could try the case” due to the aforementioned schedule.
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Upon review of the video recorded proceedings in which the
Commonwealth made these assertions, we find that the circuit court did not err in
these factual findings and that the court also did not err in determining that the
Assistant Commonwealth’s Attorney’s trial schedule constituted good cause and
was necessary and reasonable to justify the continuance. Therefore, the circuit
court did not need to conduct another hearing following remand to determine
whether there was good cause for the continuance that was necessary and
reasonable. Consequently, Brantley’s claim lacks merit.
Moreover, upon further consideration, we find that when Brantley
entered his guilty pleas on May 23, 2006, the running of the speedy trial clock for
the alleged IAD violation effectively stopped, as it is nonsensical for a defendant to
claim that his rights were violated when a court failed to bring him to trial on
charges for which he has entered valid guilty pleas. Brantley does not contend that
his guilty pleas were invalid. Therefore, it is a moot point whether Brantley’s
speedy trial rights under the IAD were violated from the date he pleaded guilty on
May 23, 2006, through the date trial had been scheduled to occur, i.e., August 15,
2006. As for the question of whether his speedy trial rights under the IAD were
violated from March 1, 2006, to the date of his guilty pleas, May 23, 2006, we
determined, supra, that there was good cause for the continuance of the trial during
that time that was also necessary and reasonable due to the Assistant
Commonwealth’s Attorney’s trial schedule. Thus, Brantley’s claim lacks merit.
B. CLAIM REGARDING POST-APPEAL DELAY
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Brantley next contends that he was denied his right to a speedy
disposition under both the IAD and the Due Process Clause when the circuit court
took approximately twenty-two months to enter its factual findings after the case
was remanded from this Court in February 2008. Brantley argues that the “postappeal delay . . . was just shy of two years, well beyond the 180-day limit set out in
KRS3 440.450 [i.e., Kentucky’s statute pertaining to the IAD].”
We first note that, as we mentioned, supra, the circuit court did not
enter a ruling on Brantley’s post-appeal motions to dismiss, in which he argued
that the post-appeal delay violated the IAD and the Due Process Clause. “It is the
duty of one who moves the trial court for relief to insist upon a ruling, and a failure
to do so is regarded as a waiver.” Dillard v. Commonwealth, 995 S.W.2d 366, 371
(Ky. 1999). Therefore, because Brantley did not insist upon a ruling on his
motions to dismiss concerning post-appeal delay after the circuit court failed to
rule upon them, he has waived these issues.
Regardless, however, even if Brantley had not waived these issues,
they lack merit. Brantley first contends that the post-appeal delay resulted in a
denial of his speedy trial right under the IAD. Brantley does not cite any cases to
this Court that suggest post-appeal delay results in a violation of the IAD.
Kentucky Revised Statute 440.450, Article III, Section (1), which is the portion of
the IAD that Brantley has brought his claims under, concerns when a prisoner
against whom a detainer has been lodged must be brought to trial. The statute
3
Kentucky Revised Statute.
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does not mention post-appeal delay. Once Brantley entered his guilty pleas on
May 23, 2006, i.e., before his initial appeal, the running of the speedy trial clock
effectively stopped. Therefore, he has no basis under the IAD for challenging how
long it took the circuit court to enter its findings on remand from this Court.
Second, Brantley alleges that his speedy trial rights under the Due
Process Clauses of the federal and state constitutions were violated by the postappeal delay. In support of this claim, Brantley cites Dickerson, 278 S.W.3d at
150. However, Dickerson is distinguishable from the present case. In Dickerson,
the Kentucky Supreme Court noted that it had reversed Dickerson’s initial
convictions in October 2005, and that the speedy trial clock began to run on that
date. But, the clock effectively stopped ticking when Dickerson subsequently
pleaded guilty in September 2007. Dickerson again appealed, claiming that his
speedy trial rights had been violated by the twenty-three month delay between the
date the Supreme Court reversed his initial convictions and the time he entered his
subsequent guilty plea. The Court found that although the length of time was
presumptively prejudicial, there was no actual prejudice shown. Therefore,
Dickerson’s constitutional speedy trial rights had not been violated. See
Dickerson, 278 S.W.3d at 150-152.
In the present case, Brantley cites Dickerson for the proposition that
post-appeal delay may result in a violation of a defendant’s constitutional speedy
trial rights. However, Dickerson is distinguishable because in Dickerson, the
defendant did not plead guilty until approximately two years after the case was
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remanded to the trial court following the initial appeal. In the present case,
Brantley pleaded guilty before his initial appeal to this Court. Therefore, pursuant
to the Supreme Court’s holding in Dickerson, once Brantley pleaded guilty, the
constitutional speedy trial clock stopped ticking. Thus, Brantley’s allegation that
his constitutional speedy trial rights were violated during the post-appeal delay in
this case, which occurred after he had pleaded guilty, lacks merit.
Furthermore, even if the post-appeal delay in this case could constitute a
speedy trial violation under the federal and state constitutions, Brantley’s
allegation nevertheless fails. “In evaluating a claim of a speedy trial violation, we
consider four factors: (1) the length of the delay, (2) the reasons for the delay, (3)
the defendant’s assertion of his right to a speedy trial, and (4) prejudice to the
defendant.” Bratcher v. Commonwealth, 151 S.W.3d 332, 344 (Ky. 2004).
Because twenty-two months passed from the time this Court’s initial
decision on appeal became final to the time the circuit court entered its decision on
remand, the delay is presumptively prejudicial. See Bratcher, 151 S.W.3d at 344
(holding that an eighteen month delay between indictment and trial was
presumptively prejudicial). “That prejudice, however, is not alone dispositive and
must be balanced against the other factors.” Miller v. Commonwealth, 283 S.W.3d
690, 700 (Ky. 2009) (internal quotation marks omitted). “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
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Barker [v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)] enquiry.”
Bratcher, 151 S.W.3d at 344 (internal quotation marks omitted).
In his motions to dismiss the indictment based on alleged violations of his
constitutional right to a speedy trial, Brantley never alleged that he was actually
prejudiced from the post-appeal delay. As the Supreme Court noted in Dickerson,
even if a delay is presumptively prejudicial, “speculative and generic claims are
insufficient to support a claim of prejudice,” and “[i]t is the burden of the
defendant to establish actual prejudice.” Dickerson, 278 S.W.3d at 152 & n.19
(internal quotation marks omitted). In Dickerson, the Court noted that
“[n]oticeably lacking from Dickerson’s brief [was] any concrete allegation of
prejudice.” Id. at 151-52. The Court then held that although the delay in
Dickerson’s case was presumptively prejudicial, Dickerson had “failed to show the
delay caused actual prejudice.” Id. at 152. Therefore, the Supreme Court held that
“even though at least some of the delay [was] attributable to the Commonwealth’s
failure fully and timely to comply with its discovery obligations,” Dickerson was
“not entitled to have the charges against him dismissed.” Id. at 152.
In the present case, because Brantley never alleged in the circuit court any
actual prejudice resulting from the post-appeal delay, and he cannot “feed one can
of worms to the trial judge and another to the appellate court,” see Kennedy v.
Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), his claim that his federal and
state constitutional rights to a speedy trial were violated by the post-appeal delay
lacks merit.
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Accordingly, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bruce P. Hackett
Chief Appellate Defender
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky
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