RICHARD K. PURCELL v. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 27, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002118-MR
RICHARD K. PURCELL
APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 99-CR-00159
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Richard K. Purcell has appealed from a judgment
and sentence on a plea of guilty entered by the Marshall Circuit
Court on September 5, 2000.
In a conditional plea of guilty
pursuant to RCr1 8.09, Purcell pled guilty to one count of theft
by deception over $300.00,2 three counts of theft by deception
1
Kentucky Rules of Criminal Procedure.
2
Kentucky Revised Statutes (KRS) 514.040.
under $300.00,3 and one count of being a persistent felony
offender in the second degree (PFO II).4
Having concluded that
the trial court entered insufficient findings of fact in its
order denying Purcell’s motion to dismiss pursuant to KRS
500.110, we must vacate the judgment of conviction and sentence
and remand this matter for further proceedings.
On May 4, 1999, Purcell was served with a criminal
summons for three misdemeanor charges of theft by deception under
$300.00 and a warrant for his arrest for one felony charge of
theft by deception over $300.00.
At the time Purcell was served
with these documents, he was incarcerated in the Graves County
Jail on unrelated charges.
Purcell testified that on May 5,
1999, he delivered two stamped envelopes containing copies of a
motion pursuant to KRS 500.110 (wherein he sought final
disposition of his case within 180 days) to a Graves County
Deputy Jailer to be mailed to the Clerk of the Marshall District
Court and to the Marshall County Attorney.
However, the Marshall
Circuit Court Clerk and the Marshall County Attorney testified
that this motion was never received by their respective offices.
On November 8, 1999, after the 180-day period had elapsed,
Purcell mailed a pro se motion to dismiss his case for failure to
prosecute to the Marshall Circuit Court Clerk and the Marshall
County Attorney.
This motion was not filed of record until
3
Id.
4
KRS 532.080(2).
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November 15, 1999, the same date a Marshall County grand jury
returned an indictment against Purcell, charging him with three
counts of misdemeanor theft by deception, one count of felony
theft by deception and one count of being a persistent felony
offender in the first degree (PFO I).
Purcell was arraigned on
these charges on that same date - November 15, 1999.
On
January 4, 2000, Purcell filed, by and through counsel, another
motion to dismiss pursuant to KRS 500.110, and the trial court
held an evidentiary hearing on the motion on April 4, 2000.
At
the conclusion of the hearing, the trial court found that neither
the Marshall Circuit Court Clerk’s Office or the Marshall County
Attorney’s Office had received Purcell’s motion for a speedy
disposition, which he claimed to have tendered for mailing on May
5, 1999.
The trial court denied Purcell’s motion to dismiss his
case for failure to prosecute.
Purcell then entered into a plea agreement with the
Commonwealth.
In exchange for amending his PFO I charge to a PFO
II charge, and a recommended prison sentence of seven years,
Purcell agreed to plead guilty to one count of theft by deception
over $300.00, with a five-year prison sentence; three counts of
theft by deception under $300.00, with 12-month jail sentences on
each conviction; and to being a PFO II.
The three 12-month jail
sentences were to run concurrently with each other and
concurrently with the felony sentence.
The five-year felony
sentence was to be enhanced to seven years based on the PFO II
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conviction.5
Purcell reserved the right to appeal the issue of
whether he had been denied a speedy trial.
The trial court
accepted Purcell’s conditional plea on April 17, 2000, and he was
sentenced in accordance with the plea agreement on September 5,
2000.
This appeal followed.
Purcell claims that his right to a speedy trial under
the United States Constitution, the Kentucky Constitution, and
KRS 500.110 was violated because it took nearly one year for the
Commonwealth to bring him to trial even though he had filed a
motion demanding a trial within 180 days.
In response to both
the constitutional claims and the statutory claim, the
Commonwealth argues that Purcell’s right to a speedy trial did
not attach until his indictment was returned, and that Purcell
entered into a plea agreement soon after he was indicted.
Because the state and federal constitutional claims are distinct
from the statutory claim under KRS 500.110, we address each
separately.
The right to a speedy trial is guaranteed by the Sixth
Amendment to the United States Constitution, which states that
“[i]n all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial. . . .”6
5
Applying this right
The plea agreement provided that if restitution were made
by the time of sentencing that Purcell’s sentence would have been
for five years instead of seven years. Apparently, Purcell was
unable to pay this restitution which included bad checks for
$598.00, $231.20, $180.64, and $71.00.
6
U.S. Const. amend. VI.
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to an individual defendant’s case requires an ad hoc balancing
test approach, which consists of four main factors: length of
delay, the reason for the delay, the defendant’s assertion of the
right, and prejudice to the defendant.7
The first factor, length
of delay, requires a determination that is necessarily dependant
upon the peculiar circumstances of each case.8
Longer delays
will be tolerated in serious and complex cases, but not in trials
of less complicated cases.9
As to the factor concerning
prejudice to the defendant, courts should consider the interests
of defendants which the speedy trial right was designed to
protect: to prevent oppressive pretrial incarceration, to
minimize the anxiety and concern of the accused, and to limit the
possibility that the defense will be impaired.10
The right to a
speedy trial guaranteed by the Kentucky Constitution, Section 11,
has been interpreted by applying the above-enumerated, four-part
Barker test.11
Applying these various factors to the case sub judice,
we conclude that Purcell’s constitutional right to a speedy trial
was not violated.
First, the length of the delay was not
7
Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d
101, 116-17 (1972).
8
Id. 33 L.Ed.2d at 117.
9
Id.
10
Id. 33 L.Ed.2d at 118.
11
Dunaway v. Commonwealth, Ky., 60 S.W.3d 563, 569 (2001).
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oppressive.12
Purcell was arrested on May 4, 1999, and his trial
was scheduled for April 5, 2000, less than one year after the
arrest.
Second, and most importantly, we fail to see how the
delay substantially prejudiced Purcell.
At the time of his
arrest, Purcell was already incarcerated in the Graves County
Jail on an unrelated charge.
This fact greatly diminishes the
risk of Purcell being subjected to oppressive pretrial
incarceration and undue anxiety and concern.
We further conclude
that Purcell was not substantially prejudiced by having to
prepare his defense from his jail cell.
Purcell did not even
attempt to contradict the Commonwealth’s factual claims, having
pleaded guilty shortly after his motion to dismiss was denied.
Therefore, we hold that Purcell’s constitutional right to a
speedy trial was not violated.
While Purcell’s constitutional right to a speedy trial
was not violated, he also has a statutory right to a trial within
180 days, under KRS 500.110, provided certain prerequisites have
been satisfied.
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
12
United States Supreme Court opinions addressing delay in
cases where the accused is involved in criminal processes of
another jurisdiction have involved delays of six and seven years
between indictment and trial. While there is no magical
numerical threshold for a violation, the 11-month delay involved
in this case is noticeably shorter than the delay in other cases
on point. See Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21
L.Ed.2d 607 (1969); and Dickey v. Florida, 398 U.S. 30, 90 S.Ct.
1564, 26 L.Ed.2d 26 (1970).
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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.
The failure of a trial court, absent good cause shown, to bring
an incarcerated defendant to trial within the 180-time period
requires that the indictment be dismissed.13
Unfortunately, the record does not contain the
necessary findings of fact to allow us to make a determination
regarding the trial court’s denial of Purcell’s KRS 500.110
claim.
The trial court made only one factual finding before
denying Purcell’s motion to dismiss the indictment: that the
Marshall Circuit Court Clerk and the Marshall County Attorney did
not receive Purcell’s motion for a speedy trial.
The trial court
“assumed” that Purcell mailed the motion, but when pressed for a
specific factual finding, the trial court failed to make a
finding of fact on this critical issue.
Furthermore, while the
Commonwealth has not raised the issue, from the record on appeal
it is not clear to this Court whether a detainer had been lodged
13
Spivey v. Jackson, Ky., 602 S.W.2d 158, 159 (1980).
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against Purcell at the time he allegedly mailed his motion for a
speedy trial.14
The lodging of a detainer is the “‘triggering
mechanism’ which brings this statute into play[.]”15
In other
words, if Purcell had mailed his motion prior to a detainer being
lodged against him, the right to a final disposition with 180
days would not apply.
Given this, two findings of fact are
critical to the disposition of Purcell’s appeal.
First, the
trial court must make a specific finding of fact regarding
whether a detainer had been lodged against Purcell prior to his
tendering of the two stamped envelopes to the Graves County Jail
officials for mailing to the Marshall County officials.
If a
detainer had not been lodged, then Purcell was not entitled to
relief under KRS 500.110.
Second, the trial court must make a
specific finding of fact regarding whether Purcell tendered the
two stamped envelopes to the Graves County Jail officials for
mailing to the Marshall County officials.
Without this finding,
it is impossible to properly analyze the meaning of “caused to be
delivered” as contained in the statute.
If the detainer had been
lodged and if the motion had been tendered for delivery, then the
14
A detainer is “‘a request filed by a criminal justice
agency with the institution in which a prisoner is incarcerated,
asking the institution to either hold the prisoner for the agency
or to notify the agency when release of the prisoner is
imminent.’” Dunaway, supra at 566 (quoting Carchman v. Nash, 473
U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985)).
15
Huddleston v. Jennings, Ky.App., 723 S.W.2d 381, 383
(1986).
-8-
trial court must make the ultimate determination of whether
Purcell is entitled to relief pursuant to KRS 500.110.
Accordingly, the judgment and sentence of the Marshall
Circuit Court is vacated and this matter is remanded for further
proceedings consistent with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, Kentucky
Albert B. Chandler III
Attorney General
Vicki L. Wise
Assistant Attorney General
Frankfort, Kentucky
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