RONALD LEAKE V. LISABETH HUGHES ABRAMSON, JUDGE, JEFFERSON CIRCUIT COURT AND COMMONWEALTH OF KENTUCKY
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IMPORTANT NOTICE
NOT TOBE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCEDURE PROMULGATED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY COURT OF THIS STATE.
RENDERED : SEPTEMBER 18, 2003
NOT TO BE PUBLISHED
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2003-SC-00247-MR
RONALD LEAKE
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
2003-CA-0399-OA
JEFFERSON CIRCUIT COURT NO. 2002-CR-0455
LISABETH HUGHES ABRAMSON,
JUDGE, JEFFERSON CIRCUIT COURT
APPELLEE
AND
COMMONWEALTH OF KENTUCKY
REAL PARTY IN INTEREST
MEMORANDUM OPINION OF THE COURT
AFFIRMING
I. INTRODUCTION
In an original action brought in the Court of Appeals, Appellant sought a writ that
would require the Appellee trial judge to dismiss a Jefferson Circuit Court Indictment,
which charges Appellant with Felony Receiving Stolen Property (as a First-Degree
Persistent Felony Offender (PFO)) and three (3) misdemeanor offenses . The Court of
Appeals denied Appellant's petition, and Appellant appeals to this Court as a matter-ofright . The crux of Appellant's argument is that the Jefferson County Grand Jury lacked
jurisdiction to return this indictment against him because "this same receipt of stolen
property charge" was previously amended to a misdemeanor offense by the Jefferson
District Court. We conclude that Appellant has an adequate remedy by appeal and that
extraordinary relief is thus inappropriate . We therefore affirm the decision of the Court
of Appeals .
I!. FACTUAL BACKGROUND
Appellant was arrested and charged with Felony Receiving Stolen Property and
the misdemeanor offenses of Carrying a Concealed Deadly Weapon, Terroristic
Threatening, and Harassment . On January 28, 2002, those charges came before the
Jefferson District Court for a preliminary hearing' to determine whether probable cause
existed to hold Appellant to answer in the Jefferson Circuit Court . After examining the
evidence introduced at the hearing, Judge Martin McDonald found no probable cause to
support the felony offense and then, on his own motion, amended it to the misdemeanor
offense of Unauthorized Use of an Automobile . Judge McDonald then set all four (4)
charges for trial in Jefferson District Court on February 27, 2002.
Two (2) days before the scheduled trial date, the Jefferson County Grand Jury
returned Jefferson Circuit Court Indictment No . 2002-CR-0455, which charged Appellant
with one (1) count each of Felony Receiving Stolen Property, Carrying a Concealed
' See KRS 24A .110(3) ("The District Court has, concurrent with Circuit Court,
jurisdiction to examine any charge of a public offense denominated as a felony or
capital offense or which may be punished by death or imprisonment in the penitentiary
and to commit the defendant to jail or hold him to bail or other form of pretrial release .") .
2 See RCr 3.14(1):
[I]f . . . from the evidence it appears to the judge that there is
probable cause to believe that an offense required to be
prosecuted by indictment pursuant to Section 12 of the
Kentucky Constitution has been committed and that the
defendant committed it, the judge shall hold the defendant to
answer in the circuit court and commit the defendant to jail,
release the defendant on personal recognizance or admit the
defendant to bail if the offense is bailable; otherwise the
defendant shall be discharged .
Deadly Weapon, Terroristic Threatening, and Harassment, and which charged
Appellant with being a First-Degree PFO. With the exception of the PFO charge, the
charges in the indictment are identical to the charges that were previously considered at
the preliminary hearing, and both sets of charges relate to the same alleged conduct.
Appellant unsuccessfully moved the trial court to dismiss the indictment on the
grounds that the Jefferson District Court's amendment of the felony offense precluded
the actions taken by the Jefferson County Grand Jury.
In short, Appellant's argument
is that: (1) KRS 24A.110(4), which provides that "[t]he District Court may, upon motion
and for good cause shown, reduce a charge of a felony to a misdemeanor in
accordance with the Rules of Criminal Procedure," 3 authorized the Jefferson District
Court to amend the Felony Receiving Stolen Property charge to Unauthorized Use of an
Automobile, a misdemeanor; and (2) once that amendment occurred, the Jefferson
District Court had exclusive jurisdiction over the charge pursuant to KRS 24A.110(2),
which provides that "[t]he District Court has exclusive jurisdiction to make a final
disposition of any charge or public offense denominated as a misdemeanor or violation,
except where the charge is joined with an indictment for a felony[.] "4 After reviewing the
3 KRS 24A.110(4) . See also RCr 9 .13:
If before or during the preliminary hearing of any person
arrested pursuant to a warrant, or appearing in response to a
summons or citation, it appears that the complaint does not
properly name or describe the defendant, or the offense with
which the defendant is charged, or that although not guilty of
the offense specified in the complaint, there is probable
cause to believe that the defendant is guilty of some other
offense, the judge shall not discharge or dismiss the
defendant but shall permit the attorney for the
Commonwealth to amend the complaint if substantial rights
of the defendant are not prejudiced . (Emphasis added) .
4 KRS 24A .110(2) .
relevant Kentucky caselaw, the trial court denied Appellant's motion to dismiss the
indictment. Appellant then filed an original action in the Court of Appeals in which he
sought extraordinary relief on the same grounds . The Court of Appeals denied
Appellant's petition, and Appellant has now appealed to this Court .
III. ANALYSIS
In order to obtain extraordinary relief, the petitioner must meet certain procedural
prerequisites, i.e . , "a showing that: 1) the lower court is proceeding or is about to
proceed outside its jurisdiction and there is no adequate remedy by appeal, or 2) the
lower court is about to act incorrectly, although within its jurisdiction, and there exists no
adequate remedy by appeal or otherwise and great injustice and irreparable injury
would result." 5 Although it is black-letter law that "whether to grant or deny a petition for
a writ is within the appellate court's discretion, ,6 unless the petition alleges a double
jeopardy bar,' a court may grant extraordinary relief only when the party seeking the
writ has first satisfied the threshold requirements for such relief.$ And thus "[d]iscretion
5 See Southeastern United Medigroup v. Hughes, Ky., 952 S .W .2d 195, 199
(1997) (emphasis added) (quoting Tipton v. Commonwealth , Ky.App ., 770 S .W.2d 239
(1989)) .
6 Commonwealth v . Deloney , Ky., 20 S .W.3d 471, 473 (2000). Cf. St. Clair v.
Roark, Ky., 10 S .W.3d 482, 485 (2000) (referencing "the oft-repeated maxim that
although a writ of prohibition will issue only in exceptional circumstances, whether to do
so lies within the sound discretion of the court in which the writ is sought."); Haight v.
Williams , Ky., 833 S .W.2d 821, 823 (1992) ("Issuance of, or refusal to issue a writ of
prohibition is in the sound discretion of the trial court."); Rowley v. Lampe, Ky., 331
S .W .2d 887 (1960) ("The granting of prohibition may not be demanded as a matter of
right, but the granting or refusal thereof lies within the sound discretion of this Court .").
See Commonwealth v. Stephenson, Ky., 82 S .W.3d 876, 880 (2002); St. Clair
v. Roark, supra note 6 at 485 (authorizing the issuance of writs in double jeopardy
cases notwithstanding the availability of an adequate remedy by appeal) .
8 Graham v. Mills , Ky., 694 S.W.2d 698, 700 (1985) ("[Writs] may be used by a
court in a discretionary manner and only when the situation is so exceptional that there
-4-
is not properly exercised when the appropriate remedy is to appeal."9 "The requirement
of showing that there is no adequate remedy by appeal emphasizes that a writ is an
extraordinary remedy used 'to shield a [party] from injustice, against which there [is] no
.]""'
other adequate remedy[
Appellant asserts that he has no adequate remedy by appeal in this case
because, unless a writ is granted, he will be forced to face trial under an indictment that
he alleges is invalid . We have found similar allegations insufficient to demonstrate the
inadequacy of appellate review." Accordingly, we find that Appellant is unable to make
the required threshold showing for the relief he requests . If Appellant is convicted of the
felony offense charged in the indictment, traditional appellate procedures will permit
Appellant an adequate forum in which to assert his claim . Accordingly, we hold that the
Court of Appeals correctly denied Appellant's petition for a writ of prohibition .
is no adequate remedy at law to prevent a miscarriage ofjustice." (emphasis added)) ;
Southeastern United Medigroup v . Hughes , supra note 5 at 199 ("Where a petition for
one of the extraordinary writs alleges that a lower adjudicatory body within its
jurisdiction has acted incorrectly, and the threshold factors of inadequate remedy and
irreparable injury are satisfied, the writ should be issued only upon a showing that the
challenged action reflects an abuse of discretion." (emphasis added)) . See also 52 AM .
JUR . 2D Mandamus § 26 (2000) ("The issuing court's decision will not be disturbed on
appeal unless there was an abuse of discretion . This means sound juridical
discretion . . . in accordance with the principles governing the granting of extraordinary
remedies." (footnotes omitted)).
9 52 Ann . JUR . 2D Mandamus § 28 (2000).
10 Kentucky Labor Cabinet v. Graham , Ky., 43 S .W .3d 247, 251 (2001) (quoting
Ohio River Contract Co . v. Gordon , 170 Ky. 412, 186 S .W . 178, 181 (1916), aff'd 244
U .S . 68, 37 S.Ct. 599, 61 L.Ed . 997 (1917)) .
See Flynt v. Commonwealth , Ky., 105 S .W.3d 415, 422-3 (2003) ("[W]e have
consistently found that traditional appellate review of allegations of error in felony cases
constitute[s] an adequate remedy."). See id . n .19 (collecting cases).
11
Iv. CONCLUSION
For the above reasons, we affirm the Court of Appeals's denial of Appellant's
petition for extraordinary relief.
Lambert, C .J .; Graves, Johnstone, Keller, Stumbo and Wintersheimer, concur.
Cooper, J., concurs in result only.
COUNSEL FOR APPELLANT :
J . David Niehaus
Office of the Public Defender for
Jefferson District Public Defender
200 Civic Plaza
719 West Jefferson Street
Louisville, Kentucky 40202
APPELLEE :
Lisabeth Hughes Abramson, Judge,
Jefferson Circuit Court
Jefferson County Judicial Center
700 West Jefferson Street
Louisville, Kentucky 40202
COUNSEL FOR COMMONWEALTH OF KENTUCKY, REAL PARTY IN INTEREST :
A . B . Chandler, III
Attorney General
Jeanne Deborah Anderson
514 West Liberty Street
Louisville, Kentucky 40202
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