MARK EDMOND BROWN v. COMMONWEALTH OF KENTUCKY
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December 30, 2004; 2:00 p.m.
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Commonwealth Of Kentucky
Court of Appeals
2003-CA-000948-MR
MARK EDMOND BROWN
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 01-CR-00556
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
COMBS, CHIEF JUDGE; MINTON, JUDGE; MILLER, SENIOR
MILLER, SENIOR JUDGE:
Mark Edmond Brown brings this appeal from
an April 2, 2003, final judgment and sentence of imprisonment of
the Fayette Circuit Court.
We affirm.
Appellant was indicted by the Fayette County Grand
Jury on the felony offense of failure to comply with sex
offender registration (Kentucky Revised Statutes (KRS) 17.510).
The indictment also charged him as a persistent felony offender
in the second degree (PFO II) (KRS 532.080).
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Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
After having pled guilty in 1998 to first-degree
sexual abuse of his pre-teen daughter (Fayette County Indictment
98-CR-1329), appellant allegedly failed to register a change of
address with his probation and parole officer.
The jury found
him guilty and recommended five-years’ imprisonment, enhanced to
ten years as a PFO II offender.
The circuit court sentenced
appellant in accordance with the jury’s recommendation to tenyears’ imprisonment to run consecutively with any other felony
sentence.
This appeal follows.
At the outset, the Commonwealth concedes that
appellant’s initial argument, that his failure to comply with
sex offender registration is a misdemeanor offense and not a
felony, has been rendered moot by the circuit court’s order
granting a Kentucky Rule of Civil Procedure (CR) 60.02 motion to
amend appellant’s conviction from a felony to a misdemeanor and
from five-years’ imprisonment (enhanced to ten years as a PFO
II) to twelve months in accordance with Peterson v. Shake, Ky.,
120 S.W.3d 707 (2003).2
Appellant next contends a violation of his right to a
speedy trial under Section Eleven of the Kentucky Constitution
2
Regarding the reference to the circuit court’s order in this appeal, this
Court entered an order March 26, 2004 which stated: “. . . appellant . . .
states that ‘Issue I’ in his brief was resolved in his favor in the
resolution of a Kentucky Rule of Civil Procedure (CR) 60.02 motion in the
Circuit Court. The Court notes that appellant’s brief was filed on February
3, 2004. Therefore, appellee is ORDERED to ADDRESS the mootness issue in its
brief.” Appellee conceded that the Supreme Court’s opinion and circuit
court’s action rendered the argument moot.
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and the Sixth Amendment to the United States Constitution.
Analysis begins with the four-factor test in Barker v. Wingo,
407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117
(1972) which involves an examination of: (1) the length of
delay, (2) the reason for the delay, (3) the defendant's
assertion of his right, and (4) the prejudice to the defendant
caused by the delay.
The factors are balanced and "[n]o single
one of these factors is determinative by itself."
Gabow v.
Commonwealth, Ky., 34 S.W.3d 63, 70 (2000).
An analysis of the last three Barker factors begins by
determining if the delay was presumptively prejudicial:
[L]ength of the delay is to some extent a
triggering mechanism. Until there is some
delay which is presumptively prejudicial,
there is no necessity for inquiry into the
other factors . . .
Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.
Determining whether a delay was presumptively prejudicial
requires examining two elements: the charges and the length of
the delay.
"The delay that can be tolerated for an ordinary
street crime is considerably less than for a serious, complex
conspiracy charge."
L.Ed.2d at 117.
Id. 407 U.S. at 531, 92 S.Ct. at 2192, 33
In this case, appellant was charged with
failure to comply with sex offender registration and PFO II.
consider these charges, although serious, to be non-complex.
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We
The second element, length of the delay, is the time
between the earlier of the arrest or the indictment and the time
the trial begins. Dillingham v. United States, 423 U.S. 64, 96
S.Ct. 303, 46 L.Ed.2d 205 (1975).
Appellant was arrested on
April 22, 2001, prior to his indictment.
March 4, 2003.
His trial began on
The delay, therefore, between arrest and trial
was approximately twenty-three months.
While courts differ in
the length of delay they require to find presumptive prejudice,
in Dunaway v. Commonwealth, Ky., 60 S.W.3d 563, 570 (2001), the
Kentucky Supreme Court found a thirteen and one-half month delay
presumptively prejudicial in a first degree robbery and PFO I
case.
We conclude that a twenty-three month delay given the
non-complex nature and facts of this case is presumptively
prejudicial.
Our conclusion that appellant’s twenty-three month
delay was presumptively prejudicial leads to an examination of
the remaining three Barker factors, beginning with the reason
for delay. The Court enumerated three categories of reasons for
delay: (1) a "deliberate attempt to delay the trial in order to
hamper the defense"; (2) a "more neutral reason such as
negligence or overcrowded courts"; and (3) "a valid reason, such
Barker, 407 U.S. at 531, 92 S.Ct. at
as a missing witness."
2192, 33 L.Ed.2d at 117.
The Court explained that different
reasons should be allocated different weights, even reasons
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within the same category.
Id.
For example, delay due to
negligence, which is a neutral reason, would weigh more heavily
in favor of a speedy trial violation than court overcrowding,
which is also classified as a neutral reason.
See Zurla v.
State, 789 P.2d 588, 592 (N.M.1990) ("bureaucratic indifference
should weigh more heavily against the state than simply case
overload").
Further, the Court was clear that even a neutral
reason weighs against the state because "the primary burden [is]
on the courts and the prosecutors to assure that cases are
brought to trial."
Barker, 407 U.S. at 529, 92 S.Ct. at 2191,
33 L.Ed.2d at 115.
Appellant was arrested on April 22, 2001.
He does not
argue that the delay between and arrest and the original trial
date of August 21, 2002, constitutes a speedy trial violation as
the delay was attributable in part to all parties’ waiting for
the Kentucky Supreme Court to rule on the status of the sexual
offender registration statute.
He instead asserts a speedy
trial violation due to the seven-month delay between August 21,
2002, and March 4, 2003.
Instead of going to trial on August
21, 2002, he entered a conditional guilty plea to both charges
pursuant to North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct.
160, 167, 27 L.Ed.2d 162, 171 (1970).
Appellant later moved to
withdraw the plea, and on September 26, 2002 the circuit court
granted appellant’s motion, allowed counsel to withdraw due to a
5
conflict, directed that new counsel be appointed, and set a
status hearing for October 18, 2002.
Thus, the initial two-
month delay is attributable to appellant.
At the status
hearing, on agreement of the parties, a February trial date was
agreed upon.
In Dunaway, supra, our Supreme Court held this
type of delay “neutral.”
The record is silent as to the reason
for the further one-month delay.
On the morning of trial,
appellant’s counsel indicated to the circuit court that
appellant wanted to have counsel removed due to a conflict and
alternated between wanting the trial continued and going to
trial.
Regardless, the trial continued.
To summarize, deducting the two-month delay caused by
appellant’s guilty plea and withdrawal of that period leaves
five months.
Of that time, four-months’ delay was due to
conflicts with the parties’ and circuit court's schedule; the
record is silent as to the need for the final delay of one
month.
There is no evidence these delays were either
intentional or avoidable.
None of the delays was due to a
"deliberate attempt to delay the trial in order to hamper the
defense."
Barker, 407 U.S. at 529, 92 S.Ct. at 2191, 33 L.Ed.2d
at 115.
It is important to note that the delays herein, from
the initial lengthy delay waiting for the Supreme Court decision
on the status of the sexual offender registration statute to the
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delay caused by appellant’s guilty plea and withdrawal, were in
some manner attributable to appellant.
Trial postponement by
the defendant "tolls the running of the constitutional speedy
trial clock."
DeLoach v. State, 722 So.2d 512, 517 (Miss.1998).
The Barker Court also indicated that a defendant's own actions
might thwart his speedy trial claim: "We hardly need add that if
delay is attributable to the defendant, then his waiver may be
given effect under standard waiver doctrine ..."
Barker, 407
U.S. at 529, 92 S.Ct. at 2191, 33 L.Ed.2d at 115.
The third Barker factor is defendant's demand for a
speedy trial.
While the defendant has a right to a speedy trial
regardless of whether he makes a demand, assertion of the right
is a factor to consider.
33 L.Ed.2d at 117.
Id. 407 U.S at 531, 92 S.Ct. at 2192,
The record before us contains numerous pro
se motions, several of which asserted appellant’s right to
speedy trial.
Such assertions are "entitled to strong
evidentiary weight" in deciding whether the defendant's rights
were violated.
defendant.
Id.
This factor weighs in favor of the
As the Sixth Circuit has noted, however, a
defendant's assertions "must be viewed in light of [defendant's]
other conduct."
United States v. O'Dell, 247 F.3d 655, 671 (6th
Cir.2001), quoting United States v. Loud Hawk, 474 U.S. 302,
314, 106 S.Ct. 648, 656, 88 L.Ed.2d 640, 654 (1986).
In that
case, the court found that six months of frivolous petitions by
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the defendant detracted from the sincerity of the defendant's
assertion of his right.
In the present case, appellant
similarly filed numerous pro se motions.
He also referred to
delays in the circuit court but never voiced a single objection.
As stated in Gabow at 70, "(i)f a defendant acquiesces in a
delay, he cannot be heard to complain about the delay."
Appellant’s acquiescence to the trial date and vacillation on
the morning of trial as to whether to go to trial or get a
continuance mitigate his speedy trial claim.
For these reasons,
we conclude that appellant’s assertion of his right weighs in
his favor, but not as heavily as it might.
The Barker Court identified three interests bearing on
the final factor, prejudice to the defendant caused by the
delay: "(1) to prevent oppressive pretrial incarceration; (2) to
minimize anxiety and concern of the accused; and (3) to limit
the possibility that the defense will be impaired."
U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.
three, the last is the most serious.
Id.
Barker, 407
Of these
Appellant claims that
all three prejudicial interests exist in his case. Although
conceding that most of the almost two-year delay was
attributable to him, he points to his nearly two years of
incarceration awaiting trial.
Appellant also points to his
anxiety and concern as demonstrated by his repeated pro se
motion practice and demands for a speedy trial.
8
While delay can
cause anxiety and incarceration can prejudice the defense, in
Barker the Court found only minimal prejudice due to a ten-month
pretrial incarceration and nearly four years of anxiety
producing, post-indictment proceedings.
Barker, 407 U.S. at
534, 92 S.Ct. at 2194, 33 L.Ed.2d at 119.
And as LaFave points
out, "absent some unusual showing [, anxiety and concern] is not
likely to be determinative in defendant's favor."
LaFave et
al., Criminal Procedure, § 18.2(e) at 684.
Appellant has made
no showing of unusual anxiety in his case.
As for the last and
most important factor, appellant asserts that he suffered
impairment because if he had been tried earlier he could have
found the transient witnesses he needed to establish his
homelessness defense for failing to register.
Appellant’s
assertion is merely speculative as he does not indicate if any
attempt was ever made to locate any specific witnesses for the
several times the case was set for trial before entry of the
guilty plea or if he was unable to locate these witnesses
because of the delay.
Also, as indicated below, there is no
“homeless” exception to the registration requirement.
We conclude, after balancing the Barker factors, that
appellant’s constitutional right to a speedy trial was not
violated.
Though appellant asserted his right and the length of
delay was presumptively prejudicial, the reasons for the delay
9
were acceptable and the prejudice caused the appellant was
minimal.
Next, appellant asserts insufficient evidence to
support his conviction of failure to register as a sex offender.
While admitting that this issue is not preserved for appeal as
no renewal of his directed verdict motion was made at the
conclusion of the evidence, appellant asks this Court to review
this issue under Kentucky Rule of Criminal Procedure (RCr) 10.26
as a palpable error.
In Schoenbachler v. Commonwealth, Ky., 95
S.W.3d 830, 836-837 (2003) the Kentucky Supreme Court addressed
palpable error upon a similar failure to renew a directed
verdict motion for insufficient evidence:
A palpable error is one of that "affects the
substantial rights of a party" and will
result in "manifest injustice" if not
considered by the court, and "[w]hat it
really boils down to is that if upon a
consideration of the whole case this court
does not believe there is a substantial
possibility that the result would have been
any different, the irregularity will be held
nonprejudicial." We recognize not only that
"the burden is on the government in a
criminal case to prove every element of the
charged offense beyond a reasonable doubt
and that the failure to do so is an error of
Constitutional magnitude,” but also that the
nature of the error alleged here is such
that, if the trial court did, in fact, err
by failing to direct a verdict of acquittal,
that failure would undoubtably have affected
Appellant's substantial rights. And, we
likewise observe that the trial result
necessarily would have been different if the
trial court had directed a verdict in
10
Appellant's favor. Accordingly, we examine
the merits of Appellant’s allegation.
Citations omitted.
Since a conviction based on insufficient
evidence would undoubtedly deprive a criminal defendant of
substantial due process rights, we will review appellant’s
insufficiency of the evidence argument under the standard
articulated in Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187
(1991):
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. 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 is the
defendant entitled to a directed verdict of
acquittal.
The portion of the registration statute applicable to
appellant provides:
If the residence address of any registrant
changes, but the registrant remains in the
same county, the person shall register, on
or before the date of the change of address,
with the appropriate local probation and
parole office in the county in which he or
she resides.
11
KRS 17.510(10)(a).
Appellant does not disagree that he was
required to register, pursuant to KRS 17.500(4), as a person
over age eighteen who had committed a sex crime.
He concedes
that the Commonwealth proved that he had vacated his registered
address.
He asserts, however, that the Commonwealth failed to
prove that he had found a new home elsewhere and that “(p)ersons
who become homeless, and therefore do not “change” their
“residence address,” are not required to register under the
plain language of 17.510.”
There is nothing, however, in the
plain language of the statute that requires the Commonwealth to
prove that the registrant has a new address.
The only evidence
of address that the Commonwealth is required to prove is that
the residence address changed.
proven.
Appellant concedes that this was
Pursuant to Benham, under the evidence as a whole, it
is not clearly unreasonable for a jury to find guilt.
Appellant’s insufficiency argument thus fails.
Last, pursuant to KRS 17.510, appellant was required
to register as a sex offender due to a guilty plea to firstdegree sexual abuse (Fayette Circuit Court Indictment 98-CR1329).
He now asserts that the guilty plea did not meet
constitutional muster under Boykin v. Alabama, 395 U.S. 238, 89
S.Ct. 1709, 23 L.Ed.2d 274 (1969) because he was never informed
at sentencing of the requirement that he register as a sexual
offender.
“(F)ailure to give such advice about future
12
consequences fails to qualify as a constitutional defect.”
McGuire v. Commonwealth, Ky., 885 S.W.2d 931, 936 (1994)
(emphasis in original) (future consequence at issue was that
appellant could be subject to an enhanced sentence based on his
status as a persistent felony offender).
Boykin requires a
knowing, voluntary and intelligent waiver of all important
constitutional rights.
Boykin, 395 U.S. at 243, 89 S.Ct. at
1712, 23 L.Ed.2d at 79; Turner v. Commonwealth, Ky.App., 647
S.W.2d 500, 500-501 (1982):
However, a knowing, voluntary and
intelligent waiver does not necessarily
include a requirement that the defendant be
informed of every possible consequence and
aspect of the guilty plea. A guilty plea
that is brought about by a person’s own free
will is not less valid because he did not
know all possible consequences of the plea
and all possible alternative courses of
action. To require such would lead to the
absurd result that a person pleading guilty
would need a course in criminal law and
penology.
As such, appellant’s Boykin argument fails.
Despite the fact that the failure of the sentencing
court to give appellant notice to register is not fatal to a
voluntary guilty plea, appellant last argues that the circuit
court was obligated by the filing of his pro se RCr 11.42 motion
asserting involuntariness of the prior plea either to assume
jurisdiction over the prior case and resolve the matter or to
remand it to the original division for resolution.
13
This
argument is answered by an order from the circuit court in the
record denying his pro se RCr 11.42 motion.
Despite this order, the circuit court was not
obligated to rule on appellant’s pro se motions.
Appellant was
represented by counsel in this case and in the prior case
involving the guilty plea.
Due to the voluminous amount of pro
se pleadings from appellant the circuit court advised him that
the court would only entertain pleadings from appellant’s
counsel.
Appellant has a right to represent himself without
counsel or have counsel appointed to represent him on a
specified limited basis.
696 (1974).
Wake v. Barker, Ky., 514 S.W.2d 692,
If appellant had wanted to proceed pro se or to
limit the role of counsel, he needed to make an unequivocal
request to do so.
Faretta v. California, 422 U.S. 806, 835, 95
S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581 (1975); Moore v.
Commonwealth, Ky., 634 S.W.2d 426, 430 (1982).
For the foregoing reasons, the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Timothy G. Arnold
Assistant Public Advocate
Frankfort, KY 40601
Gregory D. Stumbo
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, KY 40601
14
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