ANTHONY WHEELER v. COMMONWEALTH OF KENTUCKY
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RENDERED: January 14, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-001504-MR
NO. 1998-CA-001833-MR
ANTHONY WHEELER
APPELLANT
APPEAL FROM BATH CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
INDICTMENT NO. 97-CR-00007
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART AND VACATING IN PART
** ** ** ** **
BEFORE:
DYCHE, GARDNER1 and HUDDLESTON, Judges.
HUDDLESTON, Judge:
Anthony Wheeler appeals his convictions on
various charges, including wanton endangerment in the first degree
(Kentucky Revised Statute (KRS) 508.060) and operating a motor
vehicle while his license was suspended (KRS 189A.090). The issues
we are called upon to decide are: (1) whether the trial court erred
in failing to grant a directed verdict on the charge of firstdegree wanton endangerment; (2) whether the trial court denied
Wheeler a speedy trial in violation of his Sixth Amendment right;
1
Judge Gardner concurred in this decision prior to leaving
the Court on January 2, 2000.
and (3) whether the trial court erred when it ruled that Wheeler
could be convicted of operating on a driver’s license suspended for
driving under the influence when the period of suspension had
expired at the time of the offense.
The essential facts are undisputed.
Kentucky State
Police Trooper Brian Evans was traveling westbound on State Highway
60 in Bath County when he noticed that a car had drifted across the
center line of the road.
Evans initiated a traffic stop, and the
car pulled into a driveway.
the vehicle sped off.
Before Evans could approach the car,
As the vehicle was leaving, the driver,
Anthony Wheeler, who is Evans’s second cousin, exclaimed “see you
later.”
Evans and Trooper Eric Stone pursued Wheeler’s vehicle,
which was also occupied by Wheeler’s brother, Eric.
Highway 60 is a winding, hilly, rural road.
limit on the road is fifty-five miles per hour.
The speed
The pursuit
continued for four to five miles, with the vehicles reaching speeds
of almost eighty-five miles per hour. The troopers ended the chase
by boxing in Wheeler’s car and forcing him off the road.
When the
troopers tried to arrest him, Wheeler attempted to flee, but was
apprehended. Evans administered a Breathalyzer test on Wheeler and
determined his blood-alcohol concentration to be .202, well in
excess of the legal limit.
On April 17, 1997, Wheeler was charged in an indictment
with three counts of first degree wanton endangerment, one count of
operating a motor vehicle while under the influence of alcohol
(third offense), one count of driving on a DUI-suspended license
(third offense), one count of carrying a concealed deadly weapon
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and one count of being a persistent felony offender (PFO) in the
second degree.
The case was set for trial September 17, 1997.
On April 29, the Commonwealth filed a written offer on a
plea of guilty on the charges of DUI and carrying a concealed
weapon.
On July 30, Wheeler’s attorney filed a motion to exclude
Wheeler’s
prior
charge
and
suspended license from 1994.
conviction
for
driving
on
a
DUI
The trial court denied the motion.
On October 2, the trial court held a hearing for Wheeler
to enter a plea of guilty.
However, Wheeler decided not to plead
guilty and proceeded to discharge his attorney.
After the trial
court allowed him to proceed pro se, Wheeler asked the court to
grant him a “fast and speedy trial.”
The trial was rescheduled for
October 27 and the court asked the public advocate to be available
to assist Wheeler if needed.
On October 28, at the request of the Commonwealth, the
trial
court
ordered
a
competency
evaluation
of
Wheeler
and
continued the trial. On November 20, the court continued the trial
until December 18.
until
January
On December 18, the court continued the trial
15,
1998,
because
the
Kentucky
Correctional
Psychiatric Center (KCPC) had not yet released him. On January 15,
1998, the court again continued the trial because KCPC had not
filed its psychiatric report.
The record is silent as to the
actual date the KCPC finally filed its report with the trial court.
On May 13, the court appointed new counsel for Wheeler
and
scheduled
a
status
conference
for
May
21,
and
conference, the court set the case for trial on June 8.
at
that
Wheeler’s
attorney requested and was granted additional time to prepare for
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trial.
The
court
noted
that
the
courthouse
was
undergoing
renovation, and informed the parties that it was possible the trial
would not be held in August, which could result in the trial being
delayed until October.
On June 3, Wheeler’s attorney moved to dismiss the
indictment based on an alleged violation of Wheeler’s right to a
speedy trial.
The trial court denied the motion on June 5.
Wheeler also filed a motion in limine to suppress reference to his
prior DUI convictions and the persistent felony offender count of
the indictment.
On June 8, 1998, a jury found Wheeler guilty on all
counts and recommended that he serve his sentences consecutively.
On July 16, the court sentenced Wheeler to serve ten years as a PFO
in the second degree, with his sentences to be served concurrently.
On
appeal,
Wheeler
argues
that
he
was
improperly
convicted of wanton endangerment in the first degree when he should
have been convicted of the lesser charge of wanton endangerment in
the second degree.
defined
as
Wanton endangerment in the first degree is
“when,
under
circumstances
manifesting
extreme
indifference to the value of human life, [a person] wantonly
engages in conduct which creates a substantial danger of death or
serious physical injury to another person.”2
A person acts wantonly with respect to a result or to a
circumstance described by a statute defining an offense
when
he
is
aware
of
and
consciously
disregards
a
substantial and unjustifiable risk that the result will
2
Kentucky Revised Statute (KRS) 508.060.
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occur or that the circumstance exists.
of
such
nature
constitutes
a
and
gross
degree
that
deviation
The risk must be
disregard
from
the
thereof
standard
of
conduct that a reasonable person would observe in the
situation.
unaware
A person who creates such a risk but is
thereof
solely
by
reason
of
voluntary
intoxication also acts wantonly with respect thereto.3
Wanton endangerment in the second degree is defined as when a
person “wantonly engages in conduct which creates a substantial
danger of physical injury to another person.”4
In Commonwealth v. Benham,5 the Supreme Court restated
the standard for a directed verdict:
On motion for directed verdict, the trial court must
draw all fair and reasonable inferences from the evidence
in
favor
of
the
Commonwealth.
If
the
evidence
is
sufficient to induce a reasonable juror to believe beyond
a reasonable doubt that the defendant is guilty, a
directed verdict should not be given. For the purpose of
ruling on the motion, the trial court must assume that
the evidence for the Commonwealth is true, but reserving
to the jury questions as to the credibility and weight to
be given to such testimony.
3
KRS 501.020(3) (emphasis supplied).
4
KRS 508.070.
5
Ky., 816 S.W.2d 186, 187 (1991).
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With reference to our function as an appellate court, the Court
said that:
On appellate review, the test of a directed verdict
is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the
defendant
is
entitled
to
a
directed
verdict
of
acquittal.6
Wheeler was properly convicted under KRS 508.060 for
wanton endangerment in the first degree.
Wheeler fled state
troopers on a winding and hilly road, Highway 60, and reached
speeds of up to eighty-five miles per hour at night.
At the time
of the chase, Wheeler was intoxicated and had a passenger in his
car.
Wheeler needlessly put the lives of the state troopers, his
brother and himself in grave danger.
placed other motorists in danger.
In addition, he potentially
The trial court did not err in
denying Wheeler’s motion for a directed verdict.
Wheeler’s claim that the Commonwealth violated his Sixth
Amendment right to a speedy trial7 is without merit.
his argument, Wheeler relies on KRS 500.110.
is not applicable in this case.
In support of
However, KRS 580.110
KRS 500.110 only applies if a
defendant is being held in another jurisdiction and a detainer is
6
Id. (citing Commonwealth v. Sawhill, Ky., 660 S.W.2d 3, 5
(1983)).
7
The Sixth Amendment states, in pertinent part, that “[i]n
all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial . . . .”
-6-
issued with outstanding charges.8
Initially, Wheeler was held on
a
had
detainer
after
his
probation
been
conviction and he was returned to jail.
revoked
for
a
1994
Wheeler completed his
sentence on August 1, 1997, prior to making the oral motion for a
speedy trial.
Wheeler was not deprived of his right to a speedy trial.
The seminal case on determining what constitutes a speedy trial is
the United States Supreme Court case, Barker v. Wingo,9 where the
Court said that:
A balancing test necessarily compels courts to approach
speedy trial cases on an ad hoc basis.
We can do little
more than identify some of the factors which courts
should
assess
in
determining
whether
a
defendant has been deprived of his right.
identify four such factors:
8
particular
. . . [W]e
Length of delay, the reason
KRS 500.110 provides:
Whenever a person has entered upon a term of imprisonment
in a penal or correctional institution of this state, and
whenever during the continuance of the term of
imprisonment there is pending in any jurisdiction of this
state any untried indictment, information or complaint on
the basis of which a detainer has been lodged against the
prisoner, he shall be brought to trial within one hundred
and eighty (180) days after he shall have caused to be
delivered to the prosecuting officer and the appropriate
court of the prosecuting officer's jurisdiction written
notice of the place of his imprisonment and his request
for a final disposition to be made of the indictment,
information or complaint; provided that for good cause
shown in open court, the prisoner or his counsel being
present, the court having jurisdiction of the matter may
grant any necessary or reasonable continuance.
9
407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
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for the delay, the defendant’s assertion of his right,
and prejudice to the defendant.10
There exists no definitive formula which can be used to determine
when someone has been denied the right to a speedy trial.
The
court must consider the circumstances as to why there was a delay
in the trial and what harm the defendant may have suffered.
To establish whether Wheeler’s right to a speedy trial
was violated, it is necessary to consider the totality of the
circumstances.
The grand jury indicted Wheeler on April 17, 1997.
Wheeler’s attorney proceeded to negotiate a plea bargain. However,
Wheeler decided not to plead guilty and accept the plea bargain.
He then discharged his attorney and proceeded pro se.
Both
Wheeler’s change of heart on the plea bargain and his decision to
fire his attorney resulted in a delay of the trial.
The trial court and the prosecutor also had concerns
about the competency of Wheeler and whether he could stand trial.
As a result, the trial court ordered a psychiatric evaluation. The
court did not receive the evaluation until sometime after January
15, 1998, and before May 1998.
It is not clear from the record why the trial court did
not hold any hearings on this case from January 15 to May 21.
However, it is important to note that in Bath County the circuit
court is not in continuous session.
The same trial court judge
serves a total of four counties in his judicial circuit.
10
Id. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 116. See
also McDonald v. Commonwealth, Ky., 569 S.W.2d 134 (1978) (applying
Barker v. Wingo).
-8-
In Wells v. Commonwealth,11 the Supreme Court held that
a defendant who requested a continuance cannot then claim that the
continuance violated his right to a speedy trial. Wheeler’s second
attorney requested additional time to prepare for trial.
As in
Wells, because his own attorney requested a continuance, Wheeler
cannot complain that the continuances granted at his attorney’s
request deprived him of his right to a speedy trial.12
We are not convinced that Wheeler suffered prejudice as
a result of the delay.
He speculates that witnesses’ memories may
have faded and that other witnesses who could have been discovered
earlier may have been lost. This argument is unpersuasive in light
of the size of Bath County and the fact that the delay was for
approximately fourteen months.
v.
Commonwealth,13
“Kentucky
As the Supreme Court said in Brown
case
law
indicates
that
‘[t]he
possibility of prejudice alone is not sufficient to support the
position that speedy trial rights have been violated.’”14
We hold
that the trial court did not violate Wheeler’s right to a speedy
trial.
Relying on Dixon v. Commonwealth,15 Wheeler’s final claim
is that we should vacate his conviction for operating a motor
11
Ky., 892 S.W.2d 299 (1995).
12
Id. at 303. See also McDonald, 569 S.W.2d at 137 (noting
that the defendant did not object to any of the continuances
granted by the trial court).
13
Ky., 934 S.W.2d 242 (1996).
14
Id. at 249 (quoting Preston v. Commonwealth, Ky. App., 898
S.W.2d 504, 507 (1995)).
15
Ky. App., 982 S.W.2d 222 (1998).
-9-
vehicle while his license was suspended pursuant to KRS 189A.090.16
In Dixon, this Court ruled that a person cannot be convicted under
KRS 189A.090 for operating with a suspended license when the
suspension period has expired. In light of this decision, we agree
that his conviction on that charge should be vacated.
Accordingly, we affirm Wheeler’s conviction for wanton
endangerment.
We vacate Wheeler’s conviction on the charge of
operating a motor vehicle while a license is revoked or suspended
for driving under the influence.17
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Suzanne A. Hopf
DEPARTMENT OF PUBLIC ADVOCACY
Frankfort, Kentucky
Albert B. Chandler III
Attorney General
Dana M. Todd
Assistant Attorney General
Frankfort, Kentucky
16
KRS 189A.090 provides, in part:
No person shall operate a motor vehicle while his license
is revoked or suspended for violation of KRS 189A.010,
nor shall any person who has no motor vehicle or
motorcycle operator's license operate a motor vehicle
while his privilege to operate a motor vehicle has been
revoked or suspended for a violation of KRS 189A.010.
17
Our decision to vacate Wheeler’s conviction on the charge
of driving while his license was suspended will have no effect on
the length of his sentence. The jury found that he was a PFO in
the second degree based on his conviction of wanton endangerment.
The trial court sentenced Wheeler to serve a sentence of ten years
based on his PFO status and ordered all of his sentences to be
served concurrently.
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