ANTHONY EDWARD OWENS V. COMMONWEALTH OF KENTUCKY
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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 BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION .
RENDERED : FEBRUARY 21, ,2008
NOT TO BE PUBLISHED
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2006-SC-000713-MR
ANTHONY EDWARD OWENS
APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS McDONALD, JUDGE
NO. 04-CR-003152
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Anthony Edward Owens, was convicted of theft by unlawful taking,
receiving stolen property, and being a persistent felony offender in the first-degree . The
Jefferson Circuit Court imposed a total sentence of twenty years' imprisonment . He
now appeals to this Court as a matter of right, Ky. Const. ยง110(2)(b), raising one issue
for review.
The incident underlying this conviction occurred at a Target Store in Louisville . A
store security guard, Steven Meredith, witnessed Appellant and two other men take two
cell phones from a display, remove the security tags, and place the phones in a Target
shopping bag. The group then left the store without purchasing the items . Meredith
summoned the police, who stopped the men in the parking lot . In the trunk of
Appellant's car, police found another Target shopping bag containing cell phones. The
total value of all the merchandise was over one thousand dollars.
Appellant concedes that the evidence was sufficient to support his conviction, but
urges reversal on the grounds that KRS 514 .110(1) is impermissibly vague and,
therefore, unconstitutional . KRS 514.110(1) permits conviction for receipt of stolen
property where the defendant "receives, retains, or disposes of movable property of
another knowing that it has been stolen, or having reason to believe that it has been
stolen . . ." According to Appellant, the statute's use of the phrase "having reason to
believe that [the property] has been stolen" creates a culpable mental state that is
vague and confusing . Furthermore, Appellant claims that a mental state of "having
reason to believe" is not permitted by KRS 501 .030(2), which states that "[a] person is
not guilty of a criminal offense unless . . . he has engaged in such conduct intentionally,
knowingly, wantonly or recklessly as the law may require, with respect to each element
of the offense . . ."
The Commonwealth responds that this sole issue is not preserved, as Appellant
did not raise this argument before the trial court. As such, Appellant did not notify the
Attorney General that he was challenging the constitutionality of a statute, in
accordance with KRS 418 .075, while the matter was before the trial court. The
Commonwealth directs our attention to Hayes v. Commonwealth , 175 S .W.3d 574, 589
(Ky. 2005), wherein we declined to consider an argument challenging the
constitutionality of KRS 250 .489, where the issue was not raised in the trial court and
notice was not given to the Attorney General. See also Simpson v. Commonwealth ,
889 S.W.2d 781, n .1 (Ky. 1994) ("The constitutionality of KRS 534.030(1) was not
raised as an issue in this case, and accordingly, we make no decision thereon .").
In response, Appellant requests palpable error review pursuant to RCr 10.26.
Appellant is correct that this Court has at times - though rarely - addressed
unpreserved constitutional challenges . In Brown v. Commonwealth, 975 S.W .2d 922
(Ky. 1998), a constitutional challenge to KRS 507.020(1)(b) was first raised on direct
appeal to this Court . Despite the Commonwealth's assertion that the issue was not
preserved and, therefore, unreviewable, we nonetheless addressed the merits of the
argument "as Appellant has raised a constitutional question ." Id . at 923. If this Court
determines that palpable error review is warranted, Appellant urges that KRS 418.075
should not otherwise act as a procedural bar. According to Appellant, because the
Attorney General represents the Commonwealth in any criminal direct appeal, the filing
of the appellate brief satisfies the requirements of KRS 418.075(2) .
We agree . Both this Court and the Court of Appeals have explained the
underlying purpose of the notification statute : "[T]he intent of the Legislature in its
enactment of KRS 418.075 is clear that no judgment shall be entered which decides the
constitutionality of a statute until the Attorney General is given notice and an opportunity
to be heard ." Manev v. Mary Chiles Hosp. , 785 S .W .2d 480, 482 (Ky. 1990) . In fact, we
have noted that it is "the right of the people, by the chief law officer, to be heard on
matters affecting the validity of duly enacted statutes ." Manev, id. at 481 . The Court of
Appeals has further explained why notification is necessary in the lower courts, even in
criminal matters where the Commonwealth is already a party to the action :
We recognize that in criminal cases such as this the
Commonwealth is represented at the trial level by local
prosecuting officials . Howeve r, Kentucky, unlike the United
States and some sister states, does not have a unified
prosecutorial system. Although there is a relationship
between the Attorney General and local prosecuting officials,
Commonwealth's Attorneys do not answer to the Attorney
General. Since the Attorney General is elected by registered
voters from throughout the Commonwealth, he is in a unique
position to defend the constitutionality of an act of the
General Assembly . The Attorney General must be given this
opportunity at the trial level because a declaration regarding
3
the constitutionality of a statute affects all the citizens of the
Commonwealth, not just the citizens represented by the local
prosecuting official . For that reason, we conclude that the
notice requirements of [KRS 418.075] must be met in
criminal, as well as civil, actions .
Jacobs v. Commonwealth, 947 S.W.2d 416, 419 (Ky.App . 1997) (internal
citations omitted) .
We are persuaded that the requirements of KRS 418.075(2) have been
satisfied in this instance . Relating specifically to appeals before the Court of
Appeals and this Court, the statute requires that "the Attorney General shall,
before the filing of the appellant's brief, be served with a copy of the pleading,
paper, or other documents which initiate the appeal in the appellate forum." KRS
418 .075(2). Here, this requirement has been met, as the Attorney General
represents the Commonwealth - a party to the appeal - and, therefore, is served
with all documents in the matter. More importantly, the underlying intent and
purpose of the notification statute has been satisfied, as the Attorney General's
right to be heard on the constitutional validity of the statute has not been
infringed upon.
Such a conclusion, however, does not obligate this Court to address the
merits of Appellant's challenge to KRS 514.110(1). RCr 10 .26 does not require
review of unpreserved errors ; rather, the rule states that palpable errors affecting
the substantial rights of a party "may be considered by . . . an appellate court on
appeal, even though insufficiently raised or preserved for review. . ." (emphasis
added) . Here, the trial court was given no opportunity to consider the merits of
this argument. Kennedy v. Commonwealth , 544 S.W.2d 219, 222 (Ky. 1976)
("The appellants will not be permitted to feed one can of worms to the trial judge
and another to the appellate court."). More importantly, we note that Appellant
concedes that the evidence was sufficient to support his conviction on all
charges. For these reasons, we detect no manifest injustice and, therefore,
decline to address the merits of the issue.
Our holding herein is limited . In criminal appeals where the
Commonwealth is a party represented by the Attorney General, and the
constitutional validity of a statute is raised for the first time on direct appeal, the
notice requirement of KIRS 418.075(2) is satisfied by the filing of the appellate
brief. It should be emphasized that our holding in no way derogates from this
Court's right to decline review of unpreserved issues, notwithstanding satisfaction
of the notice requirement .
Accordingly, the judgment of the Jefferson Circuit Court is affirmed .
Cunningham, Noble, Scott, JJ ., concur. Minton, J., concurs by separate
opinion in which Lambert, C .J ., and Schroder, J., join. Abramson, J ., not sitting .
ATTORNEY FOR APPELLANT :
Frank Wm. Heft, Jr.
J . David Niehaus
Office of the Jefferson District Public Defender
200 Advocacy Plaza
719 W. Jefferson Street
Louisville, KY 40202
ATTORNEY FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
RENDERED : FEBRUARY 21, 2008
NOT TO BE PUBLISHED
,Vuyrrutr Caurf of ~Rrufurhv
2006-SC-000713-MR
ANTHONY EDWARD OWENS
V.
APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS McDONALD, JUDGE
NO . 04-CR-003152
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE MINTON
CONCURRING IN RESULT ONLY
I disagree with the conclusion that Appellant has satisfied the notice and
preservation requirements of KRS 418 .075 merely by filing his appellate brief.' I believe
we should affirm because Appellant failed to comply with KRS 418.075,2 rather than
See Brashars v. Commonwealth, 25 S.W.3d 58, 65-66 (Ky. 2000) (rejecting argument that
notice to the Attorney General regarding constitutionality of a statute was not required
because Commonwealth was already a party to the criminal action) ; Jacobs v.
Commonwealth , 947 S.W.2d 416, 419 (Ky.App. 1997) ("We recognize that in criminal cases
such as this the Commonwealth is represented at the trial level by local prosecuting officials .
However, Kentucky, unlike the United States and some sister states, does not have a
unified prosecutorial system. Although there is a relationship between the Attorney General
and local prosecuting officials, Commonwealth's Attorneys do not answer to the Attorney
General . See generally KRS 15.220 and 15.725. Since the Attorney General is elected by
registered voters from throughout the Commonwealth, he is in a unique position to defend
the constitutionality of an act of the General Assembly. The Attorney General must be given
this opportunity at the trial level because a declaration regarding the constitutionality of a
statute affects all the citizens of the Commonwealth, not just the citizens represented by the
local prosecuting official . For that reason, we conclude that the notice requirements of
[KRS 418 .075] must be met in criminal, as well as civil, actions .").
See, e.g., Hates v. Commonwealth , 175 S.W .3d 574, 589 (Ky. 2005) (refusing to consider
issue involving constitutionality of a statute because the issue was not properly raised in the
trial court, and proper notice was not given to the Attorney General pursuant to
KRS 418 .075).
because we decline to exercise the discretion afforded us under RCr 10.26 to review for
palpable errors.
Lambert, CJ, and Schroder, J., join this opinion .
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