COMMONWEALTH OF KENTUCKY v. DANIEL GROVES
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RENDERED:
NOVEMBER 22, 2006; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002573-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 05-CR-00218
v.
DANIEL GROVES
AND
APPELLEE
NO. 2005-CA-002608-MR
DANIEL GROVES
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 05-CR-00218
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
1
GUIDUGLI AND HENRY, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
Senior Judge David C. Buckingham, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
GUIDUGLI, JUDGE:
These cases arise from the Franklin Circuit
Court’s sua sponte dismissal of a two-count misdemeanor
indictment against Daniel Groves on the basis of the pardon
issued by Governor Fletcher in Executive Order 2005-924, as well
as the circuit court’s denial of Groves’ motion to quash the
indictment.
The Franklin County Special Grand Jury, summoned by
the Attorney General to investigate criminal violations of
Kentucky’s merit system hiring scheme, returned the indictment
against Groves.
The Commonwealth raises three issues in its
appeal, contesting the validity of Governor Fletcher’s pardon,
asserting that Groves did not accept the pardon and accordingly
could not benefit from it, and arguing that the circuit court
did not have jurisdiction over the misdemeanor indictment.
In
his separate appeal, Groves asserts that the circuit court
should have quashed the indictment.
While we disagree with two
of the Commonwealth’s arguments in light of the Supreme Court of
Kentucky’s recent decision of Fletcher v. Graham,2 we agree that
the circuit court did not have jurisdiction to dismiss the
indictment.
Accordingly, we vacate the circuit court’s order
and remand.
2
192 S.W.3d 350 (Ky. 2006).
-2-
By way of background, we shall rely upon the Supreme
Court’s brief description of the investigation in Fletcher v.
Graham:3
The investigation began in May 2005,
when an employee of the Kentucky
Transportation Cabinet contacted the
Attorney General and presented evidence of
alleged criminal violations of the state
merit employee hiring system.[] On May 25,
2005, upon motion of the Attorney General,
the Franklin Circuit Court summoned a
special grand jury. For several months, the
grand jury proceeded to investigate the
matter and eventually issued several
indictments against executive branch
employees alleging both misdemeanor
violations of the merit system laws and
felony violations concerning evidence and
witness tampering. Some three months into
the investigation, on August 29, 2005,
Governor Fletcher issued Executive Order
2005-924, whereby he sought to pardon nine
individuals indicted by the grand jury[4] as
well as “any and all persons who have
committed, or may be accused of committing,
any offense up to and including the date
hereof, relating in any way to the current
merit system investigation.”[]
The grand jury continued its investigation after the pardon had
been entered and issued more indictments for pardoned offenses.
One such person indicted was Daniel Groves.
3
Id. at 355.
4
The nine individuals listed by name in the pardon are James L. Adams,
Darrell D. Brock, Jr., Danny G. Druen, Tim Hazlette, Charles W. Nighbert,
Cory W. Meadows, Richard L. Murgatroyd, Basil W. Turbyfill, and Robert W.
Wilson, Jr.
-3-
Groves was indicted by the special grand jury on
September 30, 2005, on three misdemeanor counts of criminal
conspiracy to violate the prohibition against political
discrimination.5
In particular, Count 1 charged:
On or between August 2004 through
October 1, 2004, in Franklin County,
Kentucky, the above-named defendant, Daniel
Groves, having the intention of promoting or
facilitating the commission of a violation
of KRS 18A.140(1), agreed with Richard
Murgatroyd, Vincent Fields, Sam Beverage,
and other unknown and unindicted person(s),
that at least one (1) of them would engage
in conduct constituting a violation of KRS
18A.140(1) by appointing Billy Montgomery to
the position of Highway District
Administrative Manager for the Kentucky
Department of Transportation, District 10,
based on his political affiliation or
opinion.
Count 2 charged:
On or between August 2004 through
October 1, 2004, in Franklin County,
Kentucky, the above-named defendant, Daniel
Groves, having the intention of promoting or
facilitating the commission of a violation
of KRS 18A.140(1), agreed with Richard
Murgatroyd, Vincent Fields, Sam Beverage,
and other unknown and unindicted person(s),
that at least one (1) of them would engage
in conduct constituting a violation of KRS
18A.140(1) by appointing James Maggard to
the position of Administrative Section
Supervisor for the Kentucky Department of
Transportation, District 10, based on his
political affiliation or opinion.
And Court 3 charged:
5
KRS 506.040, KRS 18A.140(1), and KRS 18A.990.
-4-
Beginning on or about November 2004, in
Franklin County, Kentucky, the above-named
defendant, Daniel Groves, having the
intention of promoting or facilitating the
commission of a violation of KRS 18A.140(1),
agreed with Bob Wilson and other unknown and
unindicted person(s) that at least one (1)
of them would engage in conduct constituting
a violation of KRS 18A.140(1) by developing
the Governor’s Personnel Initiative which
was designed, among other things, [to]
appoint, promote, demote, transfer and
dismiss state merit employees, based upon
their political affiliation.
Less than one week after the indictment was returned,
Groves moved the circuit court to quash the indictment and
strike it from the record, arguing that Executive Order 2005-924
not only pardoned those who were indicted, but provided a
blanket amnesty.
However, the circuit court entered a sua
sponte order dismissing the indictment against Groves on
November 16, 2005, on the basis of the pardon, which included
“any and all persons who . . . may be accused of committing, any
offense up to and including the date hereof, relating in any way
to the current merit system investigation[,] . . . including
. . . any violation of KRS Chapter 18A[.]”6
In the same order,
the Commonwealth denied Groves’ motion to quash, reasoning that
the grand jury is empowered to return indictments.
Separate
appeals by the Commonwealth and Groves followed.
6
The pardon specifically listed a violation KRS 18A.140 as an offense
included within its reach.
-5-
The Commonwealth raises three issues in its appeal
from the dismissal of the indictment, contesting the validity of
the pardon, Groves’ acceptance of the pardon, and the subjectmatter jurisdiction of the circuit court to dismiss the
misdemeanor indictments.
In his separate appeal from the
portion of the order denying his motion to quash, Groves
continues to assert that the indictment should have been quashed
based upon the pardon, because the special grand jury had no
authority to return an indictment against him.
Because the
issues raised in both appeals relate solely to questions of law,
we shall review the circuit court’s ruling de novo.
1.
VALIDITY OF THE PARDON
The bulk of the Commonwealth’s brief addresses the
applicability of Executive Order 2005-924 to future indictments
of individuals not named in the pardon.
However, the
Commonwealth conceded in its reply brief that the Supreme Court
decided this issue in Fletcher v. Graham.7
The Supreme Court
held that Section 77 permits the issuance of blanket pardons, as
“[n]othing in the language of Section 77 infers that general
pardons are prohibited, nor is there any indication that a
governor may not pardon a class of persons.”8
7
Likewise, the
Fletcher v. Graham was rendered after the Commonwealth filed its initial
brief in the present appeal.
8
Id. at 358.
-6-
Supreme Court held that the governor could issue pardons prior
to formal indictments for the pardoned offenses:
“[T]here is no
language whatsoever in Section 77 identifying a particular stage
in the criminal proceedings after which a pardon is
permissible.”9
2.
ACCEPTANCE OF PARDON
Next, the Commonwealth argues that the dismissal order
is invalid because Groves never formally accepted the pardon
granted by the Executive Order, while Groves asserts that the
only requirement is that the defendant must bring the existence
of the pardon to the attention of the trial court to obtain its
benefit and that there is no indication that any person within
its reach has rejected it.
As with the first issue, the Supreme
Court addressed this argument in Fletcher v. Graham.
The Supreme Court, in addressing the acceptance
requirement, held that a formal acceptance is not required:
Upon thorough review of these [foreign]
cases, we agree that acceptance of a pardon
need not be formal, but may be inferred by
the circumstances. This position embodies
the notion that a pardon may be rejected,
but also the common-sense assumption that
such rejection will be the rare exception.
Where the circumstances of the case evidence
the clear intent of the governor to issue
the pardon, and there is no evidence or
circumstances from which to infer that it
was rejected, acceptance must be assumed.10
9
10
Id. at 359.
Id. at 362.
-7-
In deciding that acceptance of the pardon was assumed, the
Supreme Court held that “there is no indication that any person
within its ambit has rejected the pardon.”11
In the present case, the Commonwealth argues that
under the Fletcher v. Graham analysis, this matter must be
remanded to allow it an opportunity to demonstrate, and the
lower court to determine, if there is any evidence to infer that
Groves rejected the pardon.
We disagree that such fact-finding
is necessary in the instant case, as there are no circumstances
or evidence showing that there is any question that Groves
accepted the pardon.
Indeed, had Groves evidenced any intention
to reject the protection offered by the pardon, he would have
contested the circuit court’s dismissal and he certainly would
not have filed a brief in this appeal opposing the
Commonwealth’s arguments for reversal.
Furthermore, he would
not have moved the circuit court to quash the indictment on the
basis of that pardon or prosecuted an appeal from the denial of
his motion.
3.
JURISDICTION
For its last argument, the Commonwealth raises the
issue of subject-matter jurisdiction.
It asserts that the
circuit court lacked jurisdiction to dispose of the misdemeanor
11
Id.
-8-
charges filed against Groves, as the district court (not the
circuit court) has exclusive jurisdiction over such charges
pursuant to KRS 24A.110.
The Commonwealth relies upon the
Supreme Court’s opinion in Commonwealth v. Adkins12 to support
this proposition:
“KRS 24A.110(2) provides that the district
court has exclusive jurisdiction over final disposition of
misdemeanors, except when the charge is joined with an
indictment for a felony.”
In this case, the grand jury did not
charge Groves with having committed any felony offenses.
In response, Groves argues that the special grand jury
was under the supervision of the circuit court and would
therefore maintain jurisdiction over the charges presented to
it, and that it was in the discretion of the circuit court to
either retain jurisdiction or remand the matter to the district
court.
Groves also points out that the Commonwealth is barred
from raising this issue on appeal, as it was not previously
raised before the lower court and is therefore unpreserved.
Initially, we note that Groves’ preservation argument
is not well-taken, as the issue before the Court on this issue
relates to subject-matter jurisdiction.
“Defects in subject-
matter jurisdiction may be raised by the parties or the court at
any time and cannot be waived. . . .
12
29 S.W.3d 793, 794 (Ky. 2000).
-9-
Specifically, subject-
matter jurisdiction may be raised for the first time on
appeal.”13
We agree with the Commonwealth that the circuit court
did not have jurisdiction over this case.
As the indictment
contained only misdemeanor charges, the district court’s
jurisdiction would necessarily be exclusive.14
While a remand to
the district court will needlessly prolong this case, we must
vacate the circuit court’s order as it was without jurisdiction
to act.
4.
MOTION TO QUASH
Finally, we shall only briefly address Groves’ appeal
from the denial of his motion to quash and strike the indictment
from the record.
We note that in its supplemental brief, the
Commonwealth asserts that such a filing is not permissible under
RCr 8.12, as that rule prohibits such a pleading from being
filed in a criminal action.
However, in light of our vacating
the circuit court’s order, we leave this issue to be decided by
the district court upon remand.
For the foregoing reasons, the order of the Franklin
Circuit Court is vacated, and this matter is remanded to the
Franklin District Court for further proceedings.
13
Privett v. Clendenin, 52 S.W.3d 530, 532 (Ky. 2001).
14
KRS 24A.110.
-10-
ALL CONCUR.
BRIEFS FOR APPELLANT/APPELLEE,
COMMONWEALTH OF KENTUCKY:
BRIEFS FOR APPELLEE/APPELLANT,
DANIEL GROVES:
Gregory D. Stumbo
Attorney General of Kentucky
Paul Harnice
Frankfort, Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
-11-
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