JEFFREY HANKINS v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 4, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001863-MR
JEFFREY HANKINS
APPELLANT
APPEAL FROM TODD CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 01-CR-00072
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON, MINTON AND TACKETT, JUDGES.
JOHNSON, JUDGE:
Jeffrey Hankins has appealed from a final
judgment and sentence of the Todd Circuit Court entered on
August 29, 2002, which, following Hankins’s conditional pleas of
guilty to possession of marijuana under eight ounces,1 possession
of drug paraphernalia, second offense,2 operating a motor vehicle
1
Kentucky Revised Statutes (KRS) 218A.1422.
Class A misdemeanor.
2
Possession of marijuana is a
KRS 218A.500(2). Possession of drug paraphernalia is a Class A misdemeanor
for a first offense, and a Class D felony for second and subsequent offenses.
on a suspended license,3 and operating a motor vehicle without
insurance,4 sentenced Hankins to three years’ imprisonment in
accordance with the Commonwealth’s recommendations.
Having
concluded that Hankins was entitled to an evidentiary hearing on
his motion to suppress evidence and to have findings of fact and
conclusions of law entered into the record, we vacate and remand
for further proceedings.
In November 2001 Hankins was indicted by a Todd County
grand jury on one count of possession of marijuana under eight
ounces, one count of possession of drug paraphernalia, second
offense, one count of operating a motor vehicle on a suspended
license, one count of operating a motor vehicle without
insurance, one count of trafficking in a controlled substance in
the first degree, first offense,5 and as being a persistent
felony offender in the first degree (PFO I).6
In December 2001
Hankins entered pleas of not guilty to all of the charges in his
indictment.
On January 30, 2002, Hankins filed a motion to dismiss
all of the charges in his indictment, on grounds that the
alleged offenses did not take place in Kentucky, and that the
3
KRS 186.620(2).
4
KRS 304.39-080.
5
KRS 218A.1412. Trafficking in a controlled substance in the first degree is
a Class C felony for a first offense.
6
KRS 532.080(3).
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trial court therefore lacked jurisdiction.
The trial court
conducted an evidentiary hearing that same day, which revealed
the following facts.
On or around September 2, 2001, Officer John Hancock
of the Guthrie Police Department was performing routine patrol
duties when he noticed a vehicle leaving an anhydrous ammonia
storage lot.
Officer Hancock followed the vehicle as it crossed
the state line into South Guthrie, Tennessee.
Officer Hancock
observed a white male driving the vehicle and a black male in
the passenger seat.
Officer Hancock testified that although he
made no effort to pull the car over in Kentucky, he did form the
intent to stop the vehicle while he was following the car in
Kentucky.
After the vehicle turned into the driveway of an
abandoned house, Officer Hancock pulled in behind the car,
activated the lights on his police cruiser, and blocked the
vehicle’s means of egress.
Officer Hancock stated that after
blocking the vehicle in the driveway, the black male passenger
exited the vehicle and fled the scene.
Shortly thereafter,
police officers from Tennessee arrived on the scene and arrested
Hankins, who was the driver of the automobile.
A search of
Hankins’s person revealed a partially burned marijuana cigarette
and rolling papers.
A search of the area around where Hankins
was arrested revealed a baggie containing crack cocaine, which
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Hankins had apparently thrown onto the ground after exiting the
vehicle.
Following Officer Hancock’s testimony, the trial court
orally denied Hankins’s motion to dismiss.
The trial court
stated that it did not have the authority to dismiss the charges
against Hankins, and further stated that since Hankins was found
to be in possession of drugs in Tennessee, it allowed for an
inference that Hankins had also been in possession of drugs
while he was in Kentucky.
Finally, the trial court noted that
there may be issues with regard to the legality of the stop of
the vehicle in Tennessee.
On March 18, 2002, Hankins filed a motion to suppress
all of the evidence seized on the date of his arrest, and a
motion to sever the charge of possession of drug paraphernalia,
second offense.
In his motion to suppress, Hankins raised the
issue of the legality of his arrest.
On March 20, 2002, without
conducting an evidentiary hearing, the trial court denied both
motions, but did not enter findings of fact or conclusions of
law.
Following the denial of his motion to suppress
evidence and motion to sever, Hankins elected to accept the
Commonwealth’s plea offer and entered conditional pleas of
guilty to possession of marijuana under eight ounces, possession
of drug paraphernalia, second offense, operating a motor vehicle
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on a suspended license, and operating a motor vehicle without
insurance, while preserving his right to appeal the denial of
his motion to dismiss and motion to suppress evidence.
In
exchange for Hankins’s conditional guilty pleas, the
Commonwealth agreed to recommend that Hankins be sentenced to 12
months in jail for his conviction for possession of marijuana,
that he be sentenced to three years’ imprisonment for his
conviction for possession of drug paraphernalia, second offense,
that he be sentenced to 90 days in jail for his conviction for
operating on a suspended license, and that he be fined $500.00
for his conviction for operating a motor vehicle without
insurance.
The Commonwealth also recommended that all of
Hankins’s sentences be served concurrently for a total sentence
of three years’ imprisonment.
In addition, the Commonwealth
agreed to recommend that prosecution of the charge for
trafficking in a controlled substance be diverted and that the
PFO I charge be dismissed.
On August 29, 2002, the trial court
entered a final judgment and sentence against Hankins and
sentenced him to three years’ imprisonment.7
This appeal
followed.8
7
It is unclear from the record whether the charge for trafficking in a
controlled substance in the first degree was dismissed by the trial court or
whether prosecution of the charge was diverted. In addition, $400.00 of
Hankins’s $500.00 fine was ordered probated upon sufficient proof of
insurance.
8
On November 4, 2002, Hankins filed a motion to suspend further execution of
his sentence pursuant to KRS 439.265. On November 12, 2002, the trial court
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Hankins’s sole claim on appeal is that he is entitled
to a limited remand in order for the trial court (1) to conduct
an evidentiary hearing regarding the issues raised in his motion
to suppress evidence; and (2) to enter findings of fact and
conclusions of law into the record following such a hearing.
In its brief to this Court, the Commonwealth agrees
that a remand is appropriate, but argues that it should be left
to the discretion of the trial court as to whether an
evidentiary hearing is necessary, i.e., the Commonwealth argues
that if the trial court determines that the factual record from
the evidentiary hearing on Hankins’s motion to dismiss is
sufficient to address the issues raised in Hankins’s motion to
suppress evidence, the trial court should not be required to
conduct an additional evidentiary hearing, but instead it should
only enter findings of fact and conclusions of law.
Hankins
argues that an additional evidentiary hearing is necessary and
we agree.
Pursuant to RCr9 9.78, if a defendant properly presents
a motion to suppress evidence, “the trial court shall conduct an
evidentiary hearing outside the presence of the jury and at the
conclusion thereof shall enter into the record findings
granted Hankins’s motion, conditioning Hankins’s probation on his completion
of a drug treatment program.
9
Kentucky Rules of Criminal Procedure.
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resolving the essential issues of fact raised by the motion or
objection and necessary to support the ruling [emphases added].”
The “shall” language of this provision reflects the mandatory
nature of the rule.10
Furthermore, an evidentiary hearing is
required even where the defendant has not specifically asked for
a hearing on his motion to suppress evidence.11
In addition, as Hankins has noted in his brief, during
the evidentiary hearing conducted pursuant to his motion to
dismiss, the parties were not necessarily focused on the factual
and legal issues that might be relevant to a motion to suppress
evidence.
Therefore, we hold that on remand, the trial court
must conduct an evidentiary hearing to address the issues raised
in Hankins’s motion to suppress evidence.
If, after the
evidentiary hearing, the trial court grants Hankins’s motion to
suppress evidence, Hankins shall be allowed to withdraw his
conditional guilty plea and plead anew.
Accordingly, we vacate
the trial court’s denial of Hankins’s motion to suppress
evidence, and remand this matter with directions to conduct an
evidentiary hearing and to enter the appropriate findings of
fact and conclusions of law into the record.
10
See Moore v. Commonwealth, Ky., 634 S.W.2d 426, 433 (1982)(holding that
“[t]he provisions of RCr 9.78 are mandatory”).
11
See Mills v. Commonwealth, Ky., 996 S.W.2d 473, 481 (1999)(noting that “RCr
9.78 places affirmative duties upon the trial court. The rule does not
require that the defendant move for an evidentiary hearing. Instead, the
rule mandates that a trial court shall hold an evidentiary hearing outside of
the presence of the jury whenever a defendant moves to suppress a confession
or other incriminating statements made to the police”).
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Based on the foregoing, the trial court’s denial of
Hankins’s motion to suppress evidence is vacated, and this
matter is remanded for further proceedings consistent with this
Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Christopher F. Polk
Louisville, Kentucky
Albert B. Chandler III
Attorney General
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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