CHRISTOPHER MATTHEW McFARLAND V. COMMONWEALTH OF KENTUCKY
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RENDERED: September 24, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000955-MR
CHRISTOPHER MATTHEW McFARLAND
V.
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN D. MINTON, JR., JUDGE
ACTION NOS. 97-CR-131 AND 97-CR-173
COMMONWEALTH OF KENTUCKY
AND
APPELLEE
NO. 1998-CA-001087-MR
CHRISTOPHER MATTHEW McFARLAND
V.
APPELLANT
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN D. MINTON, JR., JUDGE
ACTION NOS. 97-CR-131 AND 97-CR-173
COMMONWEALTH OF KENTUCKY
APPELLANT
OPINION AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; KNOX and McANULTY, Judges.
GUDGEL, CHIEF JUDGE:
These appeals stem from a judgment entered
by the Warren Circuit Court.
Appellant entered a conditional
plea of guilty to four counts of burglary in the third degree,
one count of theft by unlawful taking over $300, two counts of
theft by unlawful taking under $300, three counts of unlawful
transaction with a minor in the second degree and three counts of
criminal mischief in the third degree.
years’ imprisonment.
He was sentenced to three
On appeal, appellant contends that the
court erred by denying his motion to dismiss the foregoing
indictments on the ground that his right to a speedy trial was
violated.
We disagree.
Hence, we affirm.
Appellant was convicted of four felony offenses in
August 1995 and sentenced to ten years’ imprisonment.
1996 he was granted parole as to those felonies.
In July
While on
parole, appellant committed the additional felony offenses
providing the basis for the offenses charged in the two
indictments which are the subject of this appeal.
In the first indictment appellant was charged with
burglary in the third degree, theft by unlawful taking, and three
counts of unlawful transaction with a minor.
Appellant was
arraigned on these charges on September 8, 1997, and an attorney
was appointed to represent him.
October 2, 1997.
A trial was scheduled for
At this time, the court acknowledged that
appellant had filed a motion for a speedy trial.
Thereafter, on
September 26, the court granted a motion filed by appellant’s
attorney to reschedule the trial to November 17, 1997.
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Another indictment was issued charging appellant with
three counts of burglary in the third degree, two counts of theft
by unlawful taking under $300, and three counts of criminal
mischief in the third degree.
Appellant did not file a motion
for a speedy trial regarding these latter charges.
On November
10, 1997, appellant was arraigned on the new indictment, and the
court appointed the same attorney to represent him.
His attorney
requested that the court schedule separate trials as to the
charges in each indictment on the same date in January 1998.
On January 8, 1998, appellant appeared in court and he
and his counsel agreed to a March 2, 1998, trial date.
During
the hearing the court inquired as to whether both parties agreed
that the proposed March trial date was consistent with
appellant’s earlier motion for a speedy trial and offered to
schedule the trial at an earlier date.
Eventually, all the
charges were scheduled for trial on February 24, 1998.
On February 24, however, appellant requested a
postponement of his trial after first indicating he would plead
guilty.
Since the jury had been discharged, the cases were
continued to March 9.
On that date, appellant’s attorney was
allowed to withdraw as his counsel and another attorney was
appointed to represent him.
A trial was rescheduled for April 1,
1998.
On March 20, appellant filed a pro se motion seeking an
order dismissing the indictments on the ground of “prejudicial
preaccusation delay by the Commonwealth.”
Appellant urged that
the indictments should be dismissed because his speedy trial
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guarantee had been violated.
The court denied the motion and
appellant subsequently entered a conditional guilty plea to all
pending charges, reserving a right to appeal on the ground that
he was denied a speedy trial.
These appeals followed.
First, appellant contends that the court erred by
failing to find that KRS 500.110 was applicable herein.
We
disagree.
In Huddleston v. Jennings, Ky. App., 723 S.W.2d 381,
383 (1986), this court stated that the purpose of KRS 500.110 “is
not to ensure the speedy disposition of every charge, or even of
those charges which potentially could form the basis for a
detainer being lodged.
Its purpose is to provide for the speedy
disposition only of such charges as have actually resulted in a
detainer being lodged.”
Thus, a criminal defendant clearly has
no right to proceed under KRS 500.110 until a detainer is in fact
lodged against him.
Id.; Rushin v. Commonwealth, Ky. App., 931
S.W.2d 456 (1996).
Here, because no detainer was lodged against him,
appellant had no right to demand a speedy disposition of the
charges against him pursuant to KRS 500.110.
Moreover, we
perceive no merit in appellant’s contentions that his motion for
a speedy trial amounted to a detainer or that the court’s order
for his appearance amounted to a detainer.
Next, appellant contends that the court erred by
finding that he and his attorney acquiesced in a delay of his
trial thereby tacitacitly withdrawing his motion for a speedy
trial.
We disagree.
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The record clearly shows that appellant was present in
open court on several occasions and voiced no objection when his
attorney requested continuances.
Obviously, therefore, appellant
cannot now complain that the continuances granted at his request
deprived him of his right to a speedy trial.
See Wells v.
Commonwealth, Ky., 892 S.W.2d 299 (1995).
Finally, appellant contends that he was denied his
constitutional right to a speedy trial.
Again, we disagree.
A criminal defendant raising an issue as to the lack of
a speedy trial must first establish that the delay between the
accusation and trial was “presumptively prejudicial.”
Preston v.
Commonwealth, Ky. App., 898 S.W.2d 504, 506 (1995), citing
Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120
L.Ed.2d 520 (1992).
Thereupon a speedy trial claim must be
analyzed consistent with the four factors set forth in Barker v.
Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
McDonald v. Commonwealth, Ky., 569 S.W.2d 134 (1978), cert.
denied, 439 U.S. 1119, 99 S.Ct. 1028, 59 L.Ed.2d 79 (1979).
These four factors include the length of the delay, the reasons
for the delay, the defendant’s assertion of his speedy trial
right and whether the defendant was prejudiced.
Id.
Here, appellant complains that there was a two hundred
day delay between his arraignment and the last scheduled trial
date.
As discussed earlier, however, appellant either requested
or acquiesced in all of this delay.
Moreover, appellant fails to
demonstrate how he was prejudiced by the delay.
Certainly, the
general claim of anxiety made by appellant is insufficient to
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support his contention.
See Preston, supra.
Because a mere
possibility of prejudice is insufficient to support a speedy
trial claim, Brown v. Commonwealth, Ky., 934 S.W.2d 242 (1996),
and appellant has failed to show that the length of time between
his indictments and the disposition of the pending charges was
presumptively prejudicial, we hold that the court did not err by
denying appellant’s motion to dismiss the indictments on the
ground that his right to a speedy trial was violated.
The court’s judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul J. Neel, Jr.
Louisville, KY
A.B. Chandler III
Attorney General
Dana M. Todd
Assistant Attorney General
Frankfort, KY
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