BILLY CARL UTLEY v. COMMONWEALTH OF KENTUCKY
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December 30, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001791-MR
BILLY CARL UTLEY
v.
APPELLANT
APPEAL FROM UNION CIRCUIT COURT
HONORABLE TOMMY W. CHANDLER, JUDGE
ACTION NO. 02-CR-00027
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART
AND REVERSING IN PART
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from a judgment pursuant to
a conditional guilty plea convicting appellant of five counts of
second-degree sodomy and five counts of second-degree rape.
Appellant’s sole argument on appeal is that all counts of the
indictment should have been dismissed because a detainer was
lodged against him and he was not tried within 180 days as
required by KRS 500.110.
We adjudge that the two counts of rape
upon which the detainer was based should have been dismissed
because he was not tried within the time limitation in KRS
500.110.
Accordingly, we reverse two of the second-degree rape
convictions.
As to the remainder of the convictions, we affirm.
In February of 2000, S.T., who was eleven years old at
the time, told her mother that she had been sexually abused by
her father, Billy Utley, since she was five or six years old.
At the time she told her mother of the abuse, Utley was serving
a prison sentence at the Western Kentucky Correctional Complex
(“WKCC”).
S.T.’s mother subsequently reported the allegations
to the police.
In August of 2000, Detective Babbs of the
Kentucky State Police received information from S.T.’s mother
that Utley was about to be released from prison.
Upon receiving
this information, Detective Babbs obtained an arrest warrant for
Utley on August 15, 2000, signed by a trial commissioner,
alleging two counts of rape in the first degree based on S.T.’s
allegations.
Two days later, Babbs obtained a second arrest
warrant against Utley alleging two counts of sodomy in the first
degree based on his molestation of S.T.
At this time, nothing
had been filed in the Union District Court Clerk’s office and no
indictment had been obtained against Utley regarding S.T.’s
allegations.
On August 16, 2000, Detective Babbs contacted WKCC.
According to Babbs, he explained that he had an arrest warrant
for Utley, but that Utley had not yet been arrested on the
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warrant.
He stated that he merely requested that he be notified
when Utley would be released so he could pick him up upon his
release.
According to officials at WKCC, Babbs was told that if
he wanted a detainer lodged against Utley, he would have to send
the facility a copy of the arrest warrant.
It is undisputed
that on August 16, 2000, Babbs faxed WKCC a copy of the arrest
warrant on the two counts of first-degree rape.
On August 18,
2000, a detainer was lodged against Utley based on that arrest
warrant.
On August 19, 2000, Ms. Ellen Cockerman, Records
Supervisor at WKCC, assembled a package of materials she was
required to give an inmate when a detainer had been lodged
against him.
The package of materials contained an
acknowledgment form signed by Utley, the arrest warrant, Utley’s
resident record card, a copy of the detainer, and a copy of the
letter the Records Department sent to Security at WKCC.
It is
undisputed that Utley received this package of materials on
August 19, 2000.
Detective Babbs testified that he intended to serve
the warrant on Utley when he was released from prison.
He
stated that he had no idea that WKCC would serve the warrant on
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Utley when he faxed it to the facility.1
Babbs further stated
that he had never had a prison facility serve a warrant for him.
After receiving notice that a detainer had been lodged
against him, Utley filed a request for a final disposition with
the Union County District Court,2 the County Attorney for Union
County, and the Union County District Judge.
The District Court
and the County Attorney received the request for final
disposition on August 25, 2000 and August 26, 2000,
respectively.
Utley thereafter filed a motion for speedy
disposition pursuant to KRS 500.110 on October 5, 2000, with the
Union District Court and the Union County Attorney.3
This motion
was returned to Utley with notation stating, “No number of
record in Union Circuit Court.”
On December 8, 2000, Utley
received a letter from the Union District Judge Rene Williams
acknowledging the receipt of various pleadings relating to the
arrest warrant filed as a detainer against Utley.
The letter
confirmed that there was no active case pending against Utley in
the Union District Court because the arrest warrant had never
been officially served upon him.
Upon receiving a copy of the December 8 letter,
Cockerman wrote Judge Williams a letter on December 21, 2000,
reiterating that a detainer had been lodged against Utley based
1
A warrant, served or unserved, would amount to a detainer.
Once the warrant was served, a case file should have been opened by the
Union District/Circuit Clerk’s office.
3
Id.
2
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on an arrest warrant and that WKCC had given the Union District
Court notice of this fact by letter dated August 18, 2000.
On
January 4, 2001, Judge Williams responded to Cockerman that a
case had never been opened for the charges described in the
arrest warrant because there was no record of a return on the
alleged warrant.
Judge Williams advised that upon receipt of a
copy of the arrest warrant verifying service upon Utley, a case
would then be opened against Utley.
At some point, Utley contacted Lynn Aldridge, a
paralegal/investigator with the Department of Public Advocacy,
who wrote three letters on his behalf, dated April 23, 2001,
May 29, 2001, and July 11, 2001, to Brucie Moore, the Union
County Attorney.
Moore testified that she first received
something from the Department of Corrections regarding Utley’s
desire for a speedy trial in August of 2000.
When she received
notice of the potential case against Utley, she testified that
she called the Union District Court Clerk’s Office and was
informed that there was no pending case, file or charge against
Utley.
After determining that Detective Babbs was the
investigating officer in the matter, Moore contacted him.
Babbs
told Moore that he had not filed any warrants and was waiting
for Utley to be released from prison before he pursued the case.
According to Moore, Babbs stated that he did not seek a detainer
on Utley.
Based on this conversation, Moore agreed to sign a
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release of the detainer lodged against Utley.
Moore signed the release of detainer.
On July 17, 2001,
Moore testified that she
was unaware that Babbs had sent the arrest warrant to WKCC until
the preliminary hearing in this case in February 2002.
On August 18, 2000, the day the detainer was lodged
against Utley, Utley had a hearing before the Kentucky Parole
Board.
Because the detainer had been lodged against him, the
Parole Board gave Utley an eighteen-month deferment, and one of
the conditions for future consideration of parole was to have
the detainer removed.
Utley also testified that after the
detainer was lodged against him, he was moved from the minimum
security portion of WKCC to the medium security area.
On February 26, 2002, when Utley was released on
parole from WKCC, Detective Babbs served him with a warrant for
his arrest on the sodomy and rape charges.
Utley was thereafter
indicted by the Union County Grand Jury on March 5, 2002, on
five counts of first-degree rape and five counts of first-degree
sodomy based on the molestation of S.T. occurring on January 1,
1995, and December 31, 1999.
On April 16, 2002, Utley filed a
motion to dismiss the indictment for failure to timely prosecute
under KRS 500.110.
After an evidentiary hearing, the court
denied the motion.
On May 7, 2003, Utley entered a conditional plea of
guilty to five counts of second-degree rape and five counts of
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second-degree sodomy pursuant to a plea agreement with the
Commonwealth.
Utley was sentenced to eight years on each count
of rape and sodomy, to run concurrently for a total of eight
years’ imprisonment.
This appeal by Utley followed.
Utley’s sole argument on appeal is that all charges in
the indictment should have been dismissed because he was not
tried within the 180-day limitation period set out in KRS
500.110.
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.
It is the Commonwealth’s position that KRS 500.110
does not apply in this case because:
the arrest warrant faxed
to WKCC was not the functional equivalent of a detainer;
Detective Babbs did not intend for a detainer to be lodged
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against Utley; and the detainer was mistakenly lodged by WKCC.
In our view, it is immaterial whether Detective Babbs intended
for a detainer to be lodged when he faxed the warrant to WKCC.
There is no such “intent” requirement in KRS 500.110.
The
question is whether a detainer was lodged against Utley.
In
Donahoo v. Dortch, Ky., 128 S.W.3d 491, 493 (2004), our Supreme
Court adopted the Kentucky Department of Corrections definition
of “detainer”:
‘Detainer’ means a written notification
filed by a criminal justice or law
enforcement agency with the institution
where an inmate is serving a sentence,
advising that the inmate is wanted in
connection with a criminal offense, and
requesting the institution to hold the
inmate or to notify the agency when the
inmate is about to be released. The
detainer may have documents attached in
support, such as indictment or other
charging instruments, a court bench warrant,
a parole violation warrant, or an escape
warrant.
Id. (emphasis added) (quoting Kentucky Corrections, Policies and
Procedures, Policy Number 18.17 (eff. February 17, 1995)).
In the present case, there is no question that a
detainer was lodged against Utley as a result of the arrest
warrant procured by Detective Babbs.
The record before us
contains a form entitled “Acknowledgement/Release” executed by
WKCC for the Union District Court which states, “We are lodging
your Arrest Warrant detainer/hold against the above captioned.”
The form lists the case number as 16-00-278 (the same case
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number listed on the arrest warrant) and states that the charges
are “Rape I-2 cts.”
Detective Babbs admitted that he contacted
WKCC about Utley and faxed the facility the arrest warrant so
that he could be notified when he was to be released.
“[T]he General Assembly enacted KRS 500.110 for the
ameliorative purpose of lessening the detrimental effect that
detainers have on the prison population by requiring a court,
upon request by a prisoner, to resolve untried indictments
within 180 days so that the detainer may be lifted if the
prisoner is found innocent of the charges.”
Ky., 103 S.W.3d 25, 29 (2003).
Rosen v. Watson,
In Dunaway v. Commonwealth, Ky.,
60 S.W.3d 563, 567 (2001), the Court recognized the specific
problems an inmate can face as a result of a detainer being
filed:
(1) deprived of an opportunity to obtain a
sentence to run concurrently with the
sentence being served at the time the
detainer is filed; (2) classified as a
maximum or close custody risk; (3)
ineligible for initial assignments to less
than maximum security prisons (i.e., honor
farms or forestry camp work); (4) ineligible
for trustee [sic] status; (5) not allowed to
live in preferred living quarters such as
dormitories; (6) ineligible for studyrelease programs or work-release programs;
(7) ineligible to be transferred to
preferred medium or minimum custody
institutions within the correctional system,
which includes the removal of any
possibility of transfer to an institution
more appropriate for youthful offenders; (8)
not entitled to preferred prison jobs which
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carry higher wages and entitle [him] to
additional good time credits against [his]
sentence; (9) inhibited by the denial of
possibility of parole or any commutation of
his sentence; (10) caused anxiety and thus
hindered in the overall rehabilitation
process since he cannot take maximum
advantage of his institutional
opportunities.
Id. (quoting Carchman v. Nash, 473 U.S. 716, 730, 105 S. Ct.
3401, 3409, 87 L. Ed. 2d 516, 527 (1985)).
In fact, Utley
testified to the consequences he suffered as a result of the
detainer being lodged against him in this case – being moved
from minimum to medium security at WKCC and his parole being
deferred.
Hence, as a detainee, Utley encountered some of the
very problems that KRS 500.110 was promulgated to protect
against.
Utley next argues that the requirement of an “untried
indictment, information or complaint” in KRS 500.110 was
satisfied in this case.
The arrest warrant in this case, which
was sworn to by Detective Babbs and signed by Trial Commissioner
Simpson, stated that Utley was being charged with two counts of
first-degree rape (KRS 510.040) and contained a “Criminal
Complaint” section which provided the following detailed
information about the offenses:
The affiant, DET. BRIAN BABBS says that on
or about June 28, 1999, in Union County,
Kentucky, the above-named defendant
unlawfully ENGAGED IN SEXUAL INTERCOURSE
WITH ANOTHER PERSON WHO WAS INCAPABLE OF
CONSENT BECAUSE SHE WAS LESS THAN TWELVE
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YEARS OLD. THE VICTIM STATED TO AFFIANT
THAT DEFENDANT HAD BEEN HAVING SEXUAL
INTERCOURSE (DESCRIBED BY HER AS HIM PUTTING
HIS PRIVATE PART INTO HER PRIVATE PART) FOR
THE LAST FIVE OR SIX YEARS. SHE DESCRIBED
HIM DOING THIS AND THEN STOPPING AND PEEING
INTO A CUP OR ON AN ARTICLE OF CLOTHING. HE
THEN PLACED THE CLOTHING INTO THE BOTTOM OF
THE CLOTHES BASKET OR HE THEN WASHED OUT THE
CUP. THE VICTIM SAID THE DEFENDANT WOULD BE
BREATHING HEAVY AND SWEATING DURING THE
INCIDENTS. AN EXAMINATION OF THE VICTIM BY
MISSY OWENS, AN OB/GYN NURSE PRACTITIONER,
REVEALED THAT THE VICTIMS HYMEN WAS NOT
INTACT.
Although at the time the detainer was lodged, there
had not yet been charges filed in the Union District Court nor
an indictment obtained against Utley relative to S.T.’s
allegations, we adjudge that a criminal complaint was contained
within the August 2000 arrest warrant on the two counts of
first-degree rape.
Since this was the complaint on which the detainer was
based, we agree with Utley that KRS 500.110 was applicable in
this case, and the 180-day limitation period began to run at the
time he filed his motion for final disposition of the case with
the Union County District Court and the Union County Attorney on
August 26, 2000.
Utley was indicted by the Union County Grand Jury on
March 5, 2002, on five counts of first-degree rape and five
counts of first-degree sodomy based on the allegations of S.T.
Utley next argues that because he was not tried on those charges
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within the 180-day limitation period in KRS 500.110, all of the
charges in that indictment should have been dismissed.
The
Commonwealth counters that even if KRS 500.110 did apply in this
case, only those charges that were the basis of the detainer
should have been dismissed.
In Huddleston v. Jennings, Ky. App., 723 S.W.2d 381,
383 (1986), this Court stated:
The “triggering mechanism” which brings . .
. [KRS 500.110] into play is the lodging of
a detainer against a prisoner. The purpose
of the statute 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 speedy disposition
only of such charges as have actually
resulted in a detainer being lodged.
Only two of the first-degree rape charges served as
the basis for the detainer in this case.
As is apparent from
the fact that a no true bill was not returned by the grand jury
on any of the charges, two of the second-degree rape charges to
which Utley ultimately pled guilty had to be the basis of the
August 15, 2000, arrest warrant and detainer in this case.
Accordingly, the convictions on these two charges of rape are
hereby reversed because Utley was not tried on those two charges
within the time limitation in KRS 500.110.
We reject the Commonwealth’s argument that the
protections provided by KRS 500.110 no longer applied to Utley
once the detainer was released by Moore on July 17, 2001.
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See
Dunaway v. Commonwealth, 60 S.W.3d at 567-68.
In the present
case, Utley did not serve out his prison term on the prior
sentence until well after the expiration of the 180-day period,
and the detainer was not released until after the expiration of
the 180-day limitation period which, as noted earlier, began
running on August 26, 2000.
We also reject the Commonwealth’s argument that the
trial court had the discretion to grant any reasonable or
necessary continuances under KRS 500.110.
From our review of
the record, we do not see that the Commonwealth ever sought such
a continuance of the time limitation in KRS 500.110.
For the reasons stated above, that portion of the
Union County judgment convicting appellant of two counts of
second-degree rape is reversed and the matter remanded for any
further necessary proceedings.
The remainder of the judgment is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Hoffman
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Janine Coy Bowden
Assistant Attorney General
Frankfort, Kentucky
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