GREGORY D . SPEARS, JR . V. COMMONWEALTH OF KENTUCKY
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IMPOR1"ANTNOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITYIN ANY OTHER
CASE IN ANY COURT OF THIS STATE.
AS MODIFIED : JANUARY 22, 2003
RENDERED : OCTOBER 23, 2003
NOT TO BE PUBLISHED
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2002-SC-0544-MR
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GREGORY D . SPEARS, JR .
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APPELLANT
APPEAL FROM FULTON CIRCUIT COURT
HONORABLE WILLIAM LEWIS SHADOAN, JUDGE
2001-CR-0100
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Gregory D . Spears, was indicted on two counts of first-degree
robbery, one count of first-degree rape, and one count of first-degree burglary . He
subsequently pled guilty to the charges and was sentenced to a total of sixty (60) years'
imprisonment . He appeals to this Court as a matter of right. For the reasons set forth
below, we affirm the judgment of the Fulton Circuit Court .
1.
Continuance
Spears argues that the trial court abused its discretion in denying his motion for a
continuance to allow for the preparation and submission of an alternative sentencing
plan . While generally a "plea of guilty made knowingly and voluntarily, waives all
defenses to the original charges other than the defense that the indictment fails to
charge an offense," Corbett v. Commonwealth , Ky., 717 S .W .2d 831, 832 (1986), we
addressed a very similar issue in connection with an alternative sentencing plan in
tom.
Hughes v. Commonwealth , Ky., 875 S .W.2d 99 (1994). Thus, we can reach the merits
of Spears' argument .
Spears argues that, under KRS 533 .010, the trial court was required to consider
probation with an alternative sentencing plan before imposing sentence upon him . But,
because Spears's conviction for first-degree rape made him a violent offender under
KRS 439 .3401, the trial court was precluded from considering this sentencing option by
KRS 439 .3401(3), which states in pertinent part: "[a] violent offender who has been
convicted of a . . . Class B felony . . . shall not be released on probation or parole until
he has served at least eighty-five percent (85%) of the sentence imposed ." (Emphasis
added) . See also KRS 533.010(2) .
Thus, granting Spears' motion for a continuance would have been an act of
futility . There was no error.
II.
Double Jeopardy
Next, Spears argues that his conviction on the first count of first-degree robbery
must be dismissed because the conviction violated constitutional double jeopardy
principles. We are not able to reach the merits of this issue because the alleged error
has been waived .
"[T]he rights contained in the Double Jeopardy Clause are personal and can be
waived by a defendant." United States v. Leyland, 277 F.3d 628, 631-32 (2nd Cir.
2002) (internal quotation marks omitted) . The voluntary entry of a guilty plea is one way
in which these rights can be waived, because "[b]y entering a plea of guilty, the accused
is not simply stating that he did the discrete acts described in the indictment; he is
admitting guilt of a substantive crime ." United States v. Broce, 488 U .S . 563, 570, 109
S . Ct . 757, 762, 102 L . Ed . 2d 927, 936 (1989) . That is, "[j]ust as a defendant who
-2-
pleads guilty to a single count admits guilt to the specified offense, so too does a
defendant who pleads guilty to two counts with facial allegations of distinct offenses
concede that he has committed two separate crimes ." Id ., 109 S. Ct. a t 763, 102 L. Ed.
2d at 936. "Therefore, a defendant who signs a plea agreement before raising his
double jeopardy claims waives the right to press those claims ." Leyland , 277 F.3d at
632 .
The two exceptions to the waiver rule provide that a defendant has standing to
challenge (1) whether the plea was entered knowingly and voluntarily and (2) the right
of the government to bring the charges at all . United States v. Brown , 155 F.3d 431,
434 (4th Cir. 1998) . Additionally, the defendant retains the right to challenge whether
the indictment on its face describes two or more distinct crimes. Leyland , 277 F .3d at
632. Spears makes no claim that either exception applies, but, he does appear to
make a facial double jeopardy challenge against the indictment.
The Double Jeopardy Clause operates to bar subsequent prosecution for an
offense, once the defendant has been acquitted or convicted, and to prohibit multiple
punishments for the same offense . North Carolina v. Pearce, 395 U .S . 711, 717, 89 S .
Ct . 2072, 2076, 23 L . Ed . 2d 656, 664-65 (1969). Obviously, this case does not
concern a subsequent prosecution . Thus, we turn to the question of whether, in
pleading guilty to the charges in the indictment, Spears was subjected to multiple
punishments for the same offense .
Count I of the indictment states in pertinent part that Spears
knowingly and unlawfully committed the offense of Robbery in the First
Degree when in the course of committing theft, he threatened the
immediate use of a deadly weapon, namely a gun, upon [the victim], with
the intent to accomplish a theft of funds from the Kentucky Farm Bureau
in the front office of the Kentucky Farm Bureau Agency in Hickman,
Kentucky.
Count II of the indictment states in pertinent that Spears
knowingly and unlawfully committed the offense of Robbery in the First
Degree when in the course of committing theft, he threatened the
immediate use of a deadly weapon, namely a gun, upon [the victim], with
the intent to accomplish a theft of personal funds from [the victim] in the
back office of the Kentucky Farm Bureau Agency in Hickman, Kentucky.
Relying on Stark v. Commonwealth , Ky., 828 S .W .2d 603 (1991), overruled in
part, Thomas v. Commonwealth , Ky., 931 S.W.2d 446 (1996), Spears argues that the
two above counts represent a single indictable offense . Id . at 607. In Stark , the
defendant was indicted for many counts of robbery . The robbery charges outlined in
Stark, important to the case at bar, concern the counts for first-degree robbery of one
Mr. Muth individually and "in his counterpart status as Sav-a-Step Food Mart ." Id .
Based on the conclusion that these two indictments were part of "a continuing course of
conduct and a single criminal impulse," Stark held that only a single indictment was
proper. Id. Stark relied on Ingram v. Commonwealth , Ky., 801 S .W .2d 321 (1990),
which holds that Section 13 of the Kentucky Constitution prohibits the Commonwealth
from charging multiple offenses based on a single criminal act and impulse . Id . But we
abandoned In ram's single-impulse test in Commonwealth v. Burqe, Ky., 947 S .W.2d
805 (1997). While this might appear to deplete Stark of precedential value here, that is
not the case .
Instead of overruling Stark's holding that the two first-degree robbery convictions
for the nearly simultaneous robbery of a clerk and the store was an unconstitutional
imposition of multiple punishments for the same offense, we stated in Burge that "[t]he
same result could have been reached simply by noting that since robbery is a crime
against the person, there was only one victim, thus only one crime ." Burqe , 947
S .W.2d at 810 . Thus, under both Stark and Burge , the robbery of a store clerk and the
store constitutes a single offense . But in Stark, the robbery of Mr. Muth, the clerk, and
the robbery of the Sav-a-Step store apparently occurred almost simultaneously. The
indictments at issue here describe a different scenario .
Count I alleges that the robbery of the Farm Bureau took place in the front office
and Count II alleges that the robbery of the victim's personal funds occurred in the back
office . Thus, the two robberies were separated by time and distance and, therefore, the
two charges describe two distinct criminal acts. See, etc .., Johnson v. State , 774 N .E.
1012, 1015 (Ind . Ct. App . 2002) (two convictions for resisting law enforcement held not
to violate double jeopardy principles where the first incident of resistance occurred in
one county and the second incident in another) ; State v. Cooper, 949 P .2d 660,
671 (N.M . 1997) (describing indicia of distinctness in offenses that include separation
between the illegal acts in time and distance, the nature of the acts, the objectives and
results of the acts, intervening events, and the behavior of the defendant between acts) .
Thus, our review of the indictment reveals that Spears was charged with two distinct
counts of first-degree robbery. By all accounts, his plea was knowingly and voluntarily
entered . And nothing in the record indicates that the Commonwealth lacked the right to
charge Spears with both counts of first-degree robbery . Therefore, we hold that Spears
waived his right to challenge his two convictions for first-degree robbery on double
jeopardy grounds when he pled guilty to both counts.
For the reasons set forth above, the judgment of the Fulton Circuit Court is
affirmed .
All concur.
COUNSEL FOR APPELLANT :
Gail Robinson
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A. B . Chandler, III
Attorney General of Kentucky
Tami Allen Stetler
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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C~aixzf of ~rufurhV
2002-SC-0544-MR
GREGORY D . SPEARS, JR.
APPELLANT
APPEAL FROM FULTON CIRCUIT COURT
HONORABLE WILLIAM LEWIS SHADOAN, JUDGE
2001-CR-0100
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER
The petition for rehearing and/or modification of opinion filed by appellant is
hereby denied.
On the Court's own motion, the original opinion rendered herein on October 23,
2003 is hereby modified by changes to pages 1, 2, 3 and 6 of that opinion . Due to
pagination, the attached unpublished opinion substitutes in full for the previously
rendered published opinion. Said modification does not affect the holding .
All concur.
Entered : January 22, 2004 .
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