MARK ALLEN KREMER V. COMMONWEALTH OF KENTUCKY
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2005-SC-0520-MR and 2005-SC-0585-MR
MARK ALLEN KREMER
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
NO. 03-CR-00253
V
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
Affirming
Appellant entered conditional pleas of guilty to four (4) counts of robbery in the
second degree, two (2) counts of robbery in the first degree, and being a first-degree
persistent felony offender . For these crimes, Appellant was sentenced to a total of
thirty-five (35) years imprisonment . Pursuant to his conditional pleas, Appellant
appealed to this Court on the issues preserved within his pleas. RCr 8 .09; Ky. Const. §
110(2)(b) .
For the reasons set forth herein, we affirm Appellant's convictions .
The facts, as they pertain to this appeal, are as follows : a warrant for Appellant's
arrest for the above crimes was issued on January 7, 2003, and Appellant was arrested
the next day. At the time of his arrest, Appellant was on parole . Sometime between
January 8, 2003, and March 24, 2003, Appellant's parole was revoked and Appellant
was incarcerated pursuant to the terms of a previous, unrelated judgment . On March
24, 2003, Appellant filed a pro se motion from prison which stated, among other things,
the following:
7. The defendant gives notice at this time to the court, and the
[C]ommonwealth's attorney, that he is invoking his [sic] all of the rights
pursuant to Kentucky Revised Statute five-hundred one-ten [500 .110], as
well as any other Kentucky Statutes that may apply to him in order to
guarantee him and insure him unhindered justice in this case .
On April 4, 2003, Appellant appeared before the trial court with an attorney . His
attorney noted that Appellant had filed a pro se motion. The trial court informed
Appellant that since he was currently being represented by counsel, he needed to file all
pleadings and motions through his attorney.
On April 25, 2003, Appellant appeared before the trial court again and informed
the trial court, via counsel, that he had decided against proceeding pro se and wished to
retain his appointed counsel . At this point, Appellant engaged his appointed counsel in
discussion regarding the pro se motion filed by Appellant on March 24, 2003.
Appellant's attorney told Appellant that it would be best for the two of them to discuss
the pro se motion later and that if Appellant still wished to proceed with that motion,
counsel would file it on his behalf . Appellant, through his attorney, then requested that
a trial date be set. The trial court asked the parties whether September 23-24, 2003,
would suffice. Appellant's counsel responded that those dates were acceptable .
On September 22, 2003, Appellant delivered to the trial court and counsel a pro
se motion to dismiss,' citing KRS § 500.110 as grounds for the dismissal . In certain
cases, KRS § 500.110 mandates that incarcerated persons must be tried within 180
days of noticing their incarceration to the appropriate authorities. In this case, Appellant
' The motion was filed two days later on September 24, 2003 .
2
.
claimed that the 180 days expired on September 20, 2003, 2 and that since he was not
tried by this date, the charges against him must be dismissed . A hearing was held that
same day addressing the pro se motion. Both the trial court and the prosecutor
questioned whether a detainer had ever been filed in the case. Upon agreement by the
parties, the trial court continued the trial (which was scheduled to start the next day) so
that both sides could adequately address the arguments in Appellant's pro se motion to
dismiss .
After considering briefs and arguments from both parties, the trial court denied
Appellant's pro se motion to dismiss on November 7, 2003, determining that Appellant
failed to meet the statutory requirements entitling him to relief pursuant to KRS §
500 .110. The trial court also determined that even if Appellant had satisfied the
statutory requirements of KRS § 500 .110, he waived any right to claim the benefit of
that statute since he accepted, without objection, the trial court's offer to begin trial on
September 23, 2003 .
On December 12, 2003, Appellant filed an original action for Writ of Prohibition in
the Kentucky Court of Appeals . Appellant's writ was denied by a vote of two to one (21). 3 Mark Allen Kremer v. Thomas L. Clark, Judge , No . 2003-CA-2708-OA (entered
April 1, 2004). The Court of Appeals did not reach the merits of the writ, determining
that an adequate remedy by appeal was available to Appellant . See St. Luke Hospitals,
Inc . v. Kopowski , 160 S .W .3d 771, 774 (Ky. 2005) (merits of a writ need not be
addressed where adequate remedy by appeal is available to petitioning party).
Thereafter, Appellant entered conditional guilty pleas to the charges set forth above .
Appellant now appeals to this Court (1) the trial court's order denying his motion to
2 September 20, 2003, was a Saturday.
3 Judge Taylor dissented from this order.
3
dismiss pursuant to KRS § 500.110 and (2) the Court of Appeal's order denying his
petition for Writ of Prohibition . We address Appellant's appeals in turn :
1. Trial Court's order denying Appellant's Motion to Dismiss
Appellant argues that the trial court erred when it denied his pro se motion to
dismiss. Primarily, he contends that he did meet the statutory requirements entitling
him to relief pursuant to KRS § 500.110 . Further, he claims that at no time did he waive
his right to be tried within the statutory time limit . We disagree, and because we find
that Appellant did knowingly and voluntarily waive any perceived right to be tried by
September 20, 2003, we need not address the issue of whether Appellant met the
statutory requirements entitling him to relief pursuant to KRS § 500 .110.
In order to qualify for relief pursuant to KRS § 500.110, certain statutory
requirements must be satisfied . See KRS § 500 .110 ; Rushin v . Commonwealth , 931
S.W .2d 456, 459-60 (Ky. App. 1996) (must present evidence that a detainer has been
lodged against the prisoner in order to acquire rights pursuant to KRS § 500 .110).
Once those statutory requirements are met, KRS § 500.110 directs that an indictment
against an incarcerated person shall be tried within 180 days unless good cause can be
shown as to why a reasonable delay in the action was necessary. Spivey v. Jackson ,
602 S .W.2d 158,159 (Ky. 1980) .
It is well-established that most statutory and constitutional rights are not absolute,
and thus, they are subject to waiver by criminal defendants . See New York v. Hill , 528
U .S . 110, 114, 120 S .Ct. 659, 145 L.Ed .2d 560 (2000) ("the most basic rights of a
criminal defendant are subject to waiver") (citations and quotations omitted) ;
Commonwealth v. Townsend , 87 S.W.3d 12,15 (Ky. 2002) ; Johnson v. Commonwealth ,
90 S .W .3d 39, 44-45 (Ky. 2002); Humphrey v. Commonwealth , 153 S.W.3d 854, 857
(Ky. App. 2004) . In this instance, the ruling in New York v. Hill , supra, is directly on
point and particularly persuasive . Interpreting a nearly identical provision of the
Interstate Agreement on Detainers (IAD), the United States Supreme Court permitted
criminal defendants or their attorneys to waive the right to be tried within the statutory
time periods contained therein . Id . at 114-115, 120 S .Ct. at 664-65. The waiver in that
case was deemed sufficient where the attorney agreed (without the presence of the
defendant) to accept a trial date beyond the 180 day period specified in the IAD . Id . at
113, 120 S .Ct. at 663.
The reasoning in New York v. Hill , supra , is also applicable in this case . First, we
find nothing in KRS § 500.110 which is inconsistent with recognizing the general rule
that criminal defendants may knowingly and voluntarily waive statutory rights. Id. at
116, 120 S .Ct. at 664-65 (noting that "waiver is not appropriate when it is inconsistent
with the provision creating the right sought to be secured") ; Cf. Wells v. Commonwealth ,
892 S.W .2d 299, 303 (Ky. 1995) (no violation of right to speedy trial pursuant to KRS §
500 .110 where defendant asked for and received a continuance beyond the 1- 80 day
time limitation). Thus, we hold that a valid waiver by a criminal defendant is sufficient to
constitute good cause under KRS § 500.110 for extending the period of time in which an
incarcerated person shall be tried . See Spivey, supra, at 159 . Second, the
circumstances indicating a knowing and voluntarily waiver of the right to be tried within
the statutory time period in this case are even more compelling than they were in New
York v. Hill , supra .
If we accept Appellant's argument that his March 24, 2003, pro se motion was
competent to affirmatively invoke his right to be tried within 180 days pursuant to KRS §
500.110, then we must also assume that Appellant was aware that the time period
under this statute lapsed on September 20, 2003 . However, despite this knowledge,
Appellant nonetheless stood next to his attorney in open court on April 23, 2003, (one
month later) and requested a trial date . When the trial court offered to start trial on
September 23, 2003, Appellant said nothing . He also said nothing when his attorney
accepted, on his behalf, the trial court's offer to begin trial on that day. Moreover,
Appellant thought not to say anything for five additional months, until the time had
conveniently lapsed under the statute . We find such circumstances to be an affirmative
and valid waiver by Appellant of any right to be tried by September 20, 2003 .
Our decision renders the remainder of Appellant's arguments in this appeal moot,
and thus, we do not address them.
11. Court of Appeal's order denying Appellant's Petition for Writ of Prohibition
Appellant also appeals the Court of Appeal's order (1) denying his Writ of
Prohibition ; and (2) refusing to address the merits of the petition . We agree with
Appellant and Judge Taylor that the Court of Appeals erred when it found that Appellant
had an adequate remedy by appeal . See Spivey v. Jackson , 602 S.W .2d 158 (Ky.
1980) (writ of prohibition is appropriate when lower court is found to have violated
provisions of KRS § 500.110). However, as the writ was nonetheless properly denied,
the error is deemed harmless .
For the reasons set forth above, the judgment of the Fayette Circuit Court is
affirmed .
Graves, Johnstone, Roach, Scott, and Wintersheimer J .J . concur. Cooper, J .,
concurs in result only . Lambert, C.J., dissents without opinion .
APPELLANT, PRO SE
Mark Allen Kremer
KSP# 112877, P.O. Box 5128
Eddyville, KY 42038
ATTORNEY FOR APPELLEE
Gregory D. Stumbo
Attorney General
Kristin N . Logan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
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