Commonwealth of Kentucky v. James Neal Hensley

• Court: Court of Appeals of Kentucky
• Decided: October 22, 2020
• Docket: 2019 CA 001360
• Status: Unknown

Opinion

RENDERED: OCTOBER 23, 2020; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-1360-MR

COMMONWEALTH OF KENTUCKY APPELLANT

APPEAL FROM BOONE CIRCUIT COURT v. HONORABLE RICHARD A. BRUEGGEMANN, JUDGE ACTION NO. 19-CR-00292

JAMES NEAL HENSLEY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: MAZE, TAYLOR, AND K. THOMPSON, JUDGES.

MAZE, JUDGE: The Commonwealth of Kentucky appeals from an order, entered

by the Boone Circuit Court, which granted Appellee’s motion to dismiss, based

upon speedy trial grounds. Finding no abuse of discretion, we affirm the order of

dismissal with prejudice by the Boone Circuit Court. I. Factual Background

On January 30, 2019, Florence police were called to the Microtel

Hotel to conduct a welfare check on Appellee. Upon arrival, the officers found the

door open, proceeded into Appellee’s room, and found Appellee. In plain view of

the officers was drug paraphernalia and what appeared to be heroin residue in tins.

On April 2, 2019, the grand jury of the Boone Circuit Court indicted

Appellee on charges of possession of drug paraphernalia and first-degree

possession of a controlled substance (third or greater offense).

During a pretrial conference on May 22, 2019, the Commonwealth

confirmed that the results from the state laboratory testing of the residue collected

from the tins found in the hotel room had still not been received. During the

pretrial conference, the trial court granted the request of Appellee to schedule

another pretrial conference in June in order to receive an update on the lab test

results.

At the ensuing pretrial conference on June 19, Appellee informed the

trial court of his desire to schedule a trial date. The trial court agreed and set trial

for August 26. The Commonwealth informed the trial court that the samples were

submitted for testing on May 6, but due to a backlog at the laboratory, the results

might not be available by August 26. Appellee asserted his right to a speedy trial

-2- and informed the trial court that he would oppose any subsequent motions to

continue the trial date filed by the Commonwealth.

The trial court agreed that the lack of lab results was a due process

violation. Appellee formally requested a speedy trial (both orally and written) and

the trial court granted the motion.

At the final pretrial conference on August 21, 2019 (five days before

trial), the Commonwealth informed the trial court that the laboratory test results

were still not available. During the August 21 pretrial conference, the

Commonwealth filed a motion to continue the trial date claiming the unavailability

of the case officer and Appellee objected.

Appellee reminded the court that his motion for a speedy trial had

already been granted and reiterated the fact that the lab test results were still

unavailable.

The trial court denied the motion to continue. The court explained

that if the only issue were the unavailability of the officer, it would base its

decision on the totality of the circumstances with respect to that issue. However,

the court stated that the delay in providing the lab test results was too long and

violated Appellee’s right to a speedy trial. The court specified that this delay was

prejudicial because the state’s own agencies could not provide evidence against a

defendant who was being held in custody.

-3- The Commonwealth then requested that the trial court dismiss the case

without prejudice. Appellee objected and stated that the proper remedy was to

dismiss the case with prejudice.

The trial court denied the Commonwealth’s motion to dismiss without

prejudice and granted Appellee’s motion to dismiss with prejudice. In explaining

its decision on the record, the trial court stated, “I’m supposed to adjudicate cases

case-by-case, and my view on it is that I granted a motion for speedy trial. I took

an oath to protect the rights of those who come before me, and I believe it’s an

issue here.”

II. Standard of Review

The trial court entered a written order explaining the basis for its

decision and the Commonwealth has appealed both the trial court’s decision to

deny the motion to continue and the dismissal of the case with prejudice, which

this court must review on an abuse of discretion standard: “We review a trial

court’s denial of a motion for a continuance under an abuse of discretion standard.”

Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other

grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001). “The test for

abuse of discretion is whether the trial judge’s decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.

English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).

-4- III. Legal Analysis

The Commonwealth argues that the trial court did not analyze any of

the relevant factors in making either decision. Had the trial court done so,

according to the Commonwealth, it would have found that those factors weighed in

favor of the Commonwealth in both instances. An abuse of discretion occurs if the

trial court’s ruling is “arbitrary, unreasonable, unfair, or unsupported by sound

legal principles.” Garrett v. Commonwealth, 534 S.W.3d 217, 224 (Ky. 2017)

(quoting English, 993 S.W.2d at 945).

Appellee argues that the trial court did consider all relevant factors

and did not abuse its discretion in making its decision. Appellee argues that there

was a clear violation of his right to a speedy trial, through no fault on his part.

Therefore, he insists that the trial court was correct in dismissing the case with

prejudice. Appellee points out that the trial court’s decision was based upon the

missing lab results, and the fact that the Commonwealth was missing a “material

witness” was irrelevant to the decision.

A. The trial court did not abuse its discretion in denying the Commonwealth’s

motion to continue.

In determining whether to grant a continuance, a court must consider

several factors, including:

[the] length of delay; previous continuances; inconvenience to litigants, witnesses, counsel and the

-5- court; whether the delay is purposeful or is caused by the accused; availability of other competent counsel; complexity of the case; and whether denying the continuance will lead to identifiable prejudice.

Morgan v. Commonwealth, 421 S.W.3d 388, 392 (Ky. 2014) (quoting Snodgrass,

814 S.W.2d at 581). In making this analysis, “[i]dentifiable prejudice is especially

important.” Id. at 393 (quoting Bartley v. Commonwealth, 400 S.W.3d 714, 733

(Ky. 2013)).

The Commonwealth makes the argument that because the trial court

did not analyze any of the factors mentioned above, there was an abuse of

discretion. This is inaccurate. Based on the record, it appears that the trial court

did analyze these factors, while not explicitly doing so. Appellee provided

evidence of an identifiable prejudice in that there would not be adequate time to

prepare a defense to the test results, which the judge acknowledged. The court also

noted that this was neither a serious nor complex crime. This was due to, per the

Commonwealth’s brief, the offer of a “rocket docket” in this case. In the trial

court’s order, this was explicitly mentioned: “[c]onsidering nature of the charges,

the complexity (or lack thereof) concerning the analysis required, together with all

the other circumstances present in this case . . . .” Therefore, the trial court did

analyze the necessary relevant factors.

While all factors need to be considered, the factors that are weighed

more heavily are the timing of the motion and the complexity of the case. In

-6- Bartley, the Kentucky Supreme Court found that the denial of a motion to continue

did not constitute an abuse of discretion despite several factors weighing in favor

of the appellant:

Here, although as Bartley notes the case had been pending for less than a year . . . , and no previous continuance had been granted, we are not persuaded that the denial of the defendants’ tenth-hour motion to postpone a September trial that had been scheduled since April amounted to an abuse of discretion. The inconvenience to parties and witnesses, including numerous medical care providers and emergency service personnel, of postponing an imminent trial raising fairly straightforward issues was likely.

400 S.W.3d at 733. In the same case, the Court noted that there was no abuse of

discretion because the two defendants failed to pursue their motion in a timely

manner:

Both defendants failed to pursue their motion diligently; they had known since the outset of the case that medical proof concerning causation and the extent of K.B.’s injuries would be important, and they had known for nearly as long that the nursing home might have pertinent records.

Id. at 733-34. In this case, the Commonwealth had known of the backlog at the

testing facility. The Commonwealth had the evidence since January but failed to

submit it for testing until May. Despite being aware of the backlog, the

Commonwealth failed to file a motion until five days before trial was set to begin.

-7- Granting the motion to continue would allow the Commonwealth to benefit from

its own untimely handling of the evidence and would be prejudicial to Appellee.

The nature and lack of complexity of this case, combined with the

Commonwealth’s failure to timely pursue its motion, weighs in favor of Appellee.

While the trial court may not have expressly stated each of the necessary factors,

its consideration of them can be inferred from the language of the order. Although

the Commonwealth claims the denial of its motion to continue was not supported

by any legal principles and was arbitrary, we disagree. For the reasons stated

above, we are convinced that the trial court impliedly considered all relevant

factors in his decision and thus did not abuse its discretion.

B. The trial court did not abuse its discretion when it ordered Appellee’s case

dismissed due to the violation of his right to a speedy trial.

The Sixth Amendment to the U.S. Constitution states: “In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial[.]” This

right is incorporated “to the states through the Due Process Clause of the

Fourteenth Amendment to the U.S. Constitution.” Smith v. Commonwealth, 361

S.W.3d 908, 914 (Ky. 2012) (citing Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct.

2182, 33 L. Ed. 2d 101 (1972); Klopfer v. North Carolina, 386 U.S. 213, 222-23,

87 S. Ct. 988, 18 L. Ed. 2d 1 (1967)).

-8- A defendant is also guaranteed the right to a speedy trial through

Section Eleven of the Kentucky Constitution. This section provides, in relevant

part, as follows:

In all criminal prosecutions the accused has the right . . . to demand the nature and cause of the accusation against him; to meet the witnesses face to face . . . and in prosecutions by indictment or information, he shall have a speedy public trial . . . .

This Court analyzes “a defendant’s constitutional rights to a speedy

trial, under both the Federal and Kentucky constitutional provisions, by applying

the four-factor Barker test.” Dunaway v. Commonwealth, 60 S.W.3d 563, 569

(Ky. 2001) (citing Barker, 407 U.S. 514).

The four factors that must be balanced in deciding a speedy trial issue

are the length of the delay, the reason for the delay, the defendant’s assertion of his

right, and prejudice to the defendant. Barker, 407 U.S. at 530. None of these

factors on its own is dispositive of the ultimate finding. Smith, 361 S.W.3d at 914

(citing Barker, 407 U.S. at 533). Applying the Barker factors to this case, the trial

court did not abuse its discretion in dismissing the case due to a violation of the

right to a speedy trial.

1. Length of delay

When considering the length of the delay, the nature and complexity

of the case must be considered. As explained previously, this case involved fairly

-9- straightforward matters. Some delays can be presumptively prejudicial based on

the nature and complexity of the case. Cain v. Smith, 686 F.2d 374 (6th Cir. 1982).

In Cain, the court held that an 11.5-month delay for a trial where “much of the

evidence was eyewitness testimony” was presumptively prejudicial. Id. at 381. As

explained in Appellee’s brief, the only evidence the Commonwealth needed to

prove this crime were the test results. The evidence was seized in January but was

not submitted for testing until May. The Commonwealth was made aware months

in advance that Appellee wanted the results in time for trial. Through no fault of

Appellee, the Commonwealth failed to meet that request. Therefore, the length-of-

delay factor weighs in favor of Appellee.

2. Reason for delay

The Commonwealth argues that the reason for the delay was the

unavailable witness. However, this had no bearing on the trial court’s decision.

Appellee objected to the motion to continue based on the missing test results.

Based on that, the court denied the motion to continue and found a speedy trial

violation. As stated in Appellee’s brief, Appellee is not responsible for making

sure that the Commonwealth has the proper resources to conduct its testing. The

inability to produce the results was strictly due to the Commonwealth’s failure to

promptly test the residue. The trial court took notice of this in its decision:

[T]he Court also notes that the Commonwealth did not submit the residue for testing until May 6, despite

-10- the fact Defendant was arrested on January 30, and despite the known backlog on testing. This undercuts the Commonwealth’s argument (on August 21st) that it could somehow avoid this predicament by increasing delay earlier in the proceedings.

(Emphasis in original). Because Appellee did not contribute to the delay via his

own motions and promptly notified the Commonwealth that he would object to any

motions to continue, the reason-for-delay factor weighs heavily in Appellee’s

favor.

3. Assertion of the right

The assertion-of-the-right prong is fairly straightforward and weighs

in Appellee’s favor. Appellee asserted his speedy trial right both orally and in

writing. This motion was granted both orally and in writing by the trial court.

Throughout the proceedings, both sides remained firm in their positions on the

matter. This factor clearly favors Appellee.

4. Prejudice to the defendant

The final prong to consider is prejudice to the defendant. The

Commonwealth argues that because Appellee was being held for other reasons, a

delay would not be prejudicial. If this were the case, the Commonwealth would be

correct. However, based on the record before this Court, it is not clear why

Appellee was being held. Regardless, the trial court explained that a delay would

still be prejudicial to the case. The trial court stated its concern of how this delay

-11- would disrupt defense counsel’s strategy. Even if the test results were to become

available before trial, the defense would not have adequate time to prepare its

arguments. The trial court specifically found that “[g]iving [the test results] to

Defendant mere days before trial would be, at best, lopsided. At worst, it would

deny him a fair opportunity to prepare his defense.”

Contrary to the Commonwealth’s contention, the trial court expressly

considered the reason-for-the-delay, the assertion-of-the-right, and the prejudice-

to-the-defendant factors. The only prong not expressly mentioned is the length-of-

delay prong. However, this can be inferred based on the trial court’s “nature and

complexity” findings in the written order.

Because these factors in this case weigh heavily in favor of Appellee,

the trial court did not abuse its discretion in dismissing the case due to a speedy

trial violation.

C. The trial court did not abuse its discretion when it granted Appellee’s

motion to dismiss the charges with prejudice.

The Commonwealth argues that relevant case law states that the

standard in this situation is that “[m]otions to dismiss pending prosecutions ‘must

be sustained unless clearly contrary to manifest public interest.’” Alexander v.

Commonwealth, 556 S.W.3d 6, 9 (Ky. App. 2018) (quoting Hoskins v. Maricle,

150 S.W.3d 1, 24 (Ky. 2004)). The Commonwealth claims that because granting

-12- the motion to dismiss without prejudice would not be clearly contrary to manifest

public interest, the trial court abused its discretion in dismissing the case with

prejudice. Again, we disagree.

There are several exceptions that allow a trial court to dismiss a case

with prejudice. One such exception arises when there is a speedy trial violation:

Concomitantly, subject to rare exceptions usually related to a defendant’s claim of a denial of the right to a speedy trial, a trial judge has no authority, absent consent of the Commonwealth’s attorney, to dismiss, amend, or file away before trial a prosecution based on a good indictment.

Hoskins, 150 S.W.3d at 13 (emphasis added) (footnote and citations omitted). The

Commonwealth references Alexander and Gibson v. Commonwealth, 291 S.W.3d

686 (Ky. 2009), which also cites to the speedy trial exception:

[I]t is not within the province of the judicial branch of our government to grant a request to designate the dismissal “with prejudice” where Appellant made no claim of denial of her right to a speedy trial, of prosecutorial misconduct so outrageous as to irrevocably taint the case against her, of double jeopardy, or of any other deprivation of rights which . . . forecloses a future attempt to prosecute her.

Id. at 691 (emphasis added). Clearly, a speedy trial violation gives a trial judge the

discretion to dismiss a case with prejudice without the consent of the prosecutor.

As the trial court correctly stated, dismissing this case without prejudice would

allow the Commonwealth to re-indict and allow the Commonwealth to “renew the

-13- fight another day.” Dismissing this case without prejudice would gut the entire

purpose of the speedy trial motion and would have the same effect as denying

Appellee’s right to a speedy trial. Given our decision that there was a speedy trial

violation in this case, the trial court did not abuse its discretion in dismissing this

case with prejudice.

Accordingly, the trial court’s decisions to deny the Commonwealth’s

motion to continue and deny the Commonwealth’s motion to dismiss without

prejudice are hereby AFFIRMED.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Andy Beshear Steven J. Buck Attorney General of Kentucky Frankfort, Kentucky

Louis D. Kelly Special Assistant Attorney General Frankfort, Kentucky

-14-