Hoskins v. Maricle

150 S.W.3d 1, 2004 WL 1906855

• Court: Kentucky Supreme Court
• Decided: December 16, 2004
• Docket: 2002-SC-0579-MR
• Status: Published

Opinions

Opinion of the Court by

Justice COOPER.

Appellants, Wanda Hoskins and David Paul Smith, petitioned the Court of Appeals for a writ prohibiting Appellee, R. Cletus Maride, judge of the Clay Circuit Court, from ordering a retrial of their indictments for murder and abuse of a corpse and directing him to approve the plea agreements that they negotiated with a special prosecutor. The Court of Appeals denied the writ and they appeal to this Court as a matter of right. Ky. Const. § 115; CR 76.36(7)(a). We affirm.

The indictment charged each Appellant with two counts of murder, a capital offense, KRS 507.020(2), and two counts of abuse of a corpse, a Class A misdemeanor. KRS 525.120(2). The indictments stem from allegations that Appellants shot and killed Ora Curry and Joe Hicks, Jr., and placed their bodies in the trunk of an automobile that they then submerged in a body of water. The trial began in the Clay Circuit Court on March 27, 2000, with Judge Maride presiding. On March 31, 2000, during the twelfth hour of jury deliberations, Judge Maride learned that the jurors had been permitted to separate in violation of RCr 9.66 and declared a mistrial.

The Clay County Commonwealth’s attorney thereafter disqualified himself from prosecuting the second trial, and a special prosecutor was appointed. Following plea negotiations, an agreement was reached to dismiss the abuse of a corpse charges, to dismiss one count of murder against each Appellant, and to amend the remaining counts of murder to charge each Appellant with one count of manslaughter in the second degree, a Class C felony. KRS 507.040(2). In exchange, Appellants agreed to plead guilty to the remaining amended count for which the special prosecutor would recommend that each serve ten years in prison, the maximum sentence for a Class C felony. KRS 532.020(l)(b). The special prosecutor then moved the trial court to amend the indictment in accordance with the plea agreement, and Appellants filed motions to enter guilty pleas to the amended charges. The motion to amend the indictment recited that there was a factual predicate for the amendment, i.e., evidence that the victims had previously threatened Appellants’ lives and, thus, a likelihood that a jury would convict Appellants of second-degree manslaughter under a claim of imperfect self-defense. KRS 503.120(1); Elliott v. Commonwealth, Ky., 976 S.W.2d 416 (1998). (The jury at the first trial was not instructed on any theory of self-defense.)

On August 6, 2001, Judge Maride heard evidence on the motions, including testimony from the victims’ families and friends. The Court of Appeals denied a motion to include the videotape of that hearing in the record of this original action, deeming it unnecessary to its decision. However, we assume that the victims’ families and friends objected to the plea agreement and that Judge Maride was persuaded to some extent by their testimony. Appellants and the Commonwealth agree that Judge Mar-ide commented extensively following the hearing, referred to his intimate knowledge of the case gleaned from presiding over the first trial, and rejected the agreement as too lenient. His succinct written order of April 4, 2002, simply denied Appellants’ motions to enter guilty pleas to second-degree manslaughter, effectively overruling the Commonwealth’s motion to amend the indictment.

In their petition for a writ of prohibition, Appellants claimed, inter alia, that Judge Maride acted outside his jurisdiction in overruling the prosecutor’s motion to amend the indictment because the prosecution of felony cases is vested exclusively in the executive department of government, i.e., the Commonwealth’s attorney. KRS 15.725(1). In the alternative, they claimed that he acted erroneously within his jurisdiction by refusing to approve the plea agreement and by permitting the victims’ families and friends to object to the terms of the agreement. The Court of Appeals denied the petition solely on the grounds that “[pjetitioners have failed to show that they do not have an adequate remedy upon appeal nor have they shown that they will be irreparably harmed.”

I. WRIT OF PROHIBITION.

Section 110(2)(a) of our present Constitution vests this Court with jurisdiction to entertain an original action for a writ of prohibition, viz:

The Supreme Court shall have appellate jurisdiction only, except it shall have the power to issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause, or as may be required to exercise control of the Court of Justice.

Similarly, Section 111(2) authorizes the Court of Appeals to “issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause within its appellate jurisdiction.” Thus, whether to grant or deny a petition for a writ is not a question of jurisdiction, but of discretion. Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (1961) (“The exercise of this authority has no limits except our judicial discretion.”). Because writs interfere with both the orderly, even if erroneous, proceedings of a trial court and the efficient dispatch of our appellate duties, the courts of this Commonwealth have periodically attempted to formulate a rule governing the discretionary choice between issuing a writ and relegating a petitioner to the right to appeal. Ky. Const. § 115. The present version of the “rule” was articulated in Southeastern United Medigrowp, Inc. v. Hughes, Ky., 952 S.W.2d 195 (1997), viz:

[A] writ of prohibition should be granted only upon 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.

Id. at 199 (emphasis added) (internal quotes omitted).

Because Appellants claim that Judge Maride is acting either outside his jurisdiction or erroneously within his jurisdiction, both tests apply. Thus, the issues are (1) whether the right to appeal¹ precludes the issuance of a writ of prohibition when a trial court is proceeding outside its jurisdiction; (2) whether the right to appeal is an “adequate remedy;” and (3) whether “great injustice and irreparable harm” will result if the petition is denied.

Our case law, at least over the past twenty-three years, has been facially inconsistent with respect to the first issue. Compare, e.g., Peterson v. Shake, Ky., 120 S.W.3d 707, 710 (2003) (though observing that “Appellant has no other adequate remedy at his disposal”), Shamrock Coal Co., Inc. v. Maricle, Ky., 5 S.W.3d 130, 133 (1999), Petrey v. Cain, Ky., 987 S.W.2d 786, 788 (1999), Corns v. Transp. Cabinet, Ky., 814 S.W.2d 574, 578 (1991), and Wood v. Graham, Ky., 633 S.W.2d 404, 406 (1982), none of which imposed or recited the “inadequate remedy” requirement, with Lewis LP Gas, Inc. v. Lambert, Ky., 113 S.W.3d 171, 175 (2003), Ky. Labor Cabinet v. Graham, Ky., 43 S.W.3d 247, 255-56 (2001), Commonwealth v. Ryan, Ky., 5 S.W.3d 113, 115 (1999), Potter v. Eli Lilly & Co., Ky., 926 S.W.2d 449, 452 (1996), Fischer v. State Bd. of Elections, Ky., 847 S.W.2d 718, 720 (1993), Shumaker v. Paxton, Ky., 613 S.W.2d 130, 131 (1981), and Tipton v. Commonwealth, Ky.App., 770 S.W.2d 239, 241 (1989), all of which either imposed or recited the “inadequate remedy” requirement. An understanding of how this divergence of authority occurred requires historical context.

From 1799 until 1891, the constitutional jurisdiction of the “old” court of appeals² was limited to “appellate jurisdiction only, which shall be coextensive with the State, under such restrictions and regulations, not repugnant to this Constitution, as may, from time to time be prescribed by law.” Ky. Const. of 1799, art. IV, § 2; Ky. Const. of 1850, art. IV, § 2. Under this regime, a circuit court, as the court of general jurisdiction, could issue a common law writ prohibiting an inferior court from acting outside its jurisdiction, Arnold v. Shields, 35 Ky. (5 Dana) 18, 23 (1837); Reese v. Lawless, 7 Ky. (4 Bibb) 394, 394-95 (1816), but the common law did not authorize a circuit court to prohibit an inferior court from acting erroneously within its jurisdiction, for which the only remedy was an appeal. Bank Lick Turnpike Co. v. Phelps, 5 Ky.L.Rptr. 713, 81 Ky. (4 J.Rodm.) 613, 617 (1884). However, because the court of appeals possessed only appellate jurisdiction, it deemed itself lacking authority to issue a writ of prohibition. Sasseen v. Hammond, 18 B.Mon. 672, 57 Ky. 672 (1858).

When Section 110 of the 1891 Constitution was adopted, it added language giving the court of appeals “power to issue such writs as may be necessary to give it a general control of inferior jurisdictions.” Ky. Const. of 1891 § 110. At the 1890 Constitutional Convention, Delegate Thomas H. Hines of Franklin County, a former chief justice of the court of appeals, offered an amendment that would have deleted the new language. 3 Debates of Constitutional Convention of 1890 3127. Delegate C.J. Bronston of Lexington explained:

I presume that the Delegate from Franklin means, by that amendment, that the Court already has that power as an inherent power in the Court. I am inclined to agree with the Delegate from Franklin on that legal proposition; but it was believed, on the part of the General Committee, after a discussion of that matter, that it would be better to express that in the Constitution, so as to relieve it from any possible doubt in the mind of anybody within the Commonwealth of Kentucky.

Id. Clearly, it was the intent of the delegates that the court of appeals at least have the authority to prohibit inferior courts from proceeding outside their jurisdiction.

Our predecessor court initially declined to interpret Section 110 of the 1891 Constitution as conferring authority to prohibit a trial court from proceeding erroneously within its jurisdiction, even where there existed no right to appeal from the erroneous action.³ Standard Oil Co. v. Linn, Ky., 17 Ky.L.Rptr, 832, 32 S.W. 932, 933 (1895). That reluctance was short-lived. In Weaver v. Toney, 107 Ky. 419, 54 S.W. 732 (1899), the court held that a writ was appropriate to prohibit a circuit judge from acting outside his jurisdiction, id., 54 S.W. at 738, but also signaled its intent to consider petitions for writs in other circumstances:

[Wjhere the inferior tribunal is proceeding out of its jurisdiction, the power of the court may be invoked to stay the exercise of such jurisdiction; and it would also seem, in certain classes of cases, that even where the inferior tribunal has jurisdiction this court may likewise interfere, if the remedy by appeal is not entirely adequate, or if the court, in the exercise of its discretionary powers shall deem it necessary to so interfere.

Id. at 734 (emphasis added). Weaver was the genesis of the “inadequate remedy by appeal” requirement and indicated that it would apply only when it was claimed that the inferior tribunal was acting erroneously within its jurisdiction. Weaver went on to explain that “necessary” meant that “an excessive and unauthorized application of judicial force, although in a case otherwise properly cognizable by the court or judge in question, may be prevented by prohibition.” Id. at 736 (internal quotation omitted). The “necessary” circumstance articulated in Weaver evolved into the “great injustice and irreparable injury” requirement of our present rule. Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178, 181 (1916) (A writ will issue “only as a matter of necessity to shield from injustice, against which there [is] no other adequate remedy and to preserve the orderly administration of the laws.” (emphasis added)), aff'd, 244 U.S. 68, 87 S.Ct. 599, 61 L.Ed. 997 (1917). Gordon also held that the “inadequate remedy by appeal” requirement applied whether the petition sought to prohibit the lower court from proceeding outside or erroneously within its jurisdiction.

In no instance has a writ of prohibition been allowed against a court proceeding out of its jurisdiction or erroneously within its jurisdiction when any other adequate remedy for the threatened wrong existed, which was adequate. If the right of appeal exists and it is an adequate remedy, the complaining party must be relegated to his remedy through appeal.

Id. However, Gordon continued that “the writ is granted as a matter of sound discretion,” id., and it was cited for that proposition in Bender v. Eaton, 343 S.W.2d at 800. After Gordon, and until Shumaker v. Paxton was decided in 1981, no Kentucky case suggested that the “inadequate remedy by appeal” requirement applied when the lower court was proceeding outside its jurisdiction.

In Duffin v. Field, 208 Ky. 543, 271 S.W. 596 (1925), the court formulated a bright line rule with respect to writs of prohibition:

[W]e will prohibit inferior courts in all cases where (1) they are threatening to proceed, or are proceeding in a matter of which they have no jurisdiction and there is no remedy through an application to an intermediate court; and (2) where they, although possessing jurisdiction, are exercising or about to exercise it erroneously and great injustice and irreparable injury would result to the applicant if they should do so, and there exists no other adequate remedy by appeal or otherwise.

Id., 271 S.W. at 596. Under this rule, the court would always issue a writ to prohibit an inferior court from proceeding outside its jurisdiction unless there was a remedy available through application to an intermediate court, e.g., a petition to a circuit court for a writ against an inferior court. Thus, Duffin eliminated any discretion to deny the petition in such a circumstance even if there was an adequate remedy by appeal. Compare the “in all cases” language in Duffin with the “only upon” language in Southeastern United Medigroup, 952 S.W.2d at 199. Per Duffin, the “no adequate remedy by appeal” and the “great injustice and irreparable injury” requirements applied only when the lower court was proceeding erroneously within its jurisdiction. Id., 271 S.W. at 596.

Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d 915 (1940), restated the Duffin rule except for the “in all cases” language, which it deleted. Id., 135 S.W.2d at 917. We assume the deletion was intended to restore the element of discretion in cases where the lower court was proceeding outside its jurisdiction (a factual scenario not present in Evans).

The two most significant opinions on this subject are Chamblee v. Rose, Ky., 249 S.W.2d 775 (1952), and Bender v. Eaton, supra, both authored by Commissioner Clay. In Chamblee, the petitioner sought a writ to prohibit a trial court from proceeding in a child custody case over which the state of Alabama had jurisdiction. Commissioner Clay wrote for the court:

Respondent takes the position that this Court is not authorized to issue a writ of prohibition where the right to appeal exists. The authorities cited do not sustain such a position, and Section 110 of the Constitution imposes no such limitation.

This Court has a broad discretion in the issuance of such writs, and each case must be adjudged on its particular merits. Our opinions have consistently distinguished between those cases: (1) where the inferior court lacks jurisdiction; and (2) where the court, having jurisdiction is proceeding erroneously. It is in the latter class of cases that we have emphasized the need for a showing of great injustice and irreparable injury for which there is no adequate remedy by appeal or otherwise....

It has been held that the remedy by way of appeal is not the controlling consideration where the inferior court is without jurisdiction....

If the Whitley Circuit Court lacks jurisdiction to proceed in this case, it would be a most inept ruling to deny the writ, require a trial on the merits, and then on an appeal be forced to reverse the case on the very question which is now before us. We therefore conclude that if the Whitley Circuit Court lacks jurisdiction of the subject matter of the action, petitioner should be entitled to his writ of prohibition.

Id. at 776-77 (citations omitted). The first two quoted paragraphs from Chamblee indicate that the existence of a remedy by appeal is a relevant, but not the controlling, factor in determining whether to issue a writ prohibiting a trial court from acting outside its jurisdiction. The last quoted paragraph concludes that the right of appeal was an inadequate remedy under the circumstances of that case.

Bender v. Eaton, supra, held, with respect to the court’s authority to grant or deny any petition for a writ, that “[t]he exercise of this authority has no limits except our judicial discretion, and each case must stand on its own merits.” Id., 343 S.W.2d at 800. The petitioner in Bender claimed that the trial court was acting erroneously within its jurisdiction by permitting discovery of privileged materials. Bender held that when that allegation is made, a showing of inadequate remedy by appeal becomes a prerequisite to consideration of the alleged error (as opposed to a mere factor to be considered). Id. at 801.

Thus, under Chamblee and Bender, whether to issue a writ was always discretionary, even when the trial court was acting outside its jurisdiction. However, in that circumstance, the existence of an adequate remedy by appeal was not controlling, but only a factor for the court to consider in exercising its discretion. But if the petition alleged only that the trial court was acting erroneously within its jurisdiction, a writ would issue only if it was shown that there was no adequate remedy by appeal and great injustice and irreparable harm would otherwise occur. As will be further explained in Part III(l) of this opinion, infra, Bender also held that great and irreparable harm to the petitioner is not an absolute prerequisite. Id. at 801.

In our 1981 opinion, Shumaker v. Pax-ton, supra, we held for the first time since 1915 that a writ could not be issued to prohibit a lower court from proceeding outside its jurisdiction absent a showing that there was no adequate remedy by appeal. Id., 613 S.W.2d at 131.⁴ Shumaker gave no explanation for this departure from Chamblee, and cited only Evans v. Humphrey as authority for the proposition. Id. As previously noted, Evans did not apply the “inadequate remedy by appeal” requirement to cases where the lower court was acting outside its jurisdiction, but reiterated the Duffin rule, except for deletion of the phrase, “in all cases.” Shumaker also inexplicably deleted the requirement that there must be no remedy through application to an intermediate court. See Evans, 135 S.W.2d at 917.⁵ Obviously, the Court of Appeals should deny a petition for a writ to prohibit a district court from proceeding outside its jurisdiction when the petitioner could obtain the same remedy in circuit court. Compare KRS 23A.080(2) with the circuit court’s former common law jurisdiction discussed in Bank Lick Turnpike Co. v. Phelps, supra. Likewise, this Court will not entertain an original petition for a writ against a circuit court when the same remedy is available in the Court of Appeals. All subsequent cases, including Southeastern United Medigroup, supra, holding or reciting that the requirement of an inadequate remedy by appeal is a prerequisite to the issuance of a writ prohibiting a trial court from proceeding outside its jurisdiction can be traced to Shumaker and/or the Court of Appeals’ opinion in Tipton v. Commomuealth, supra, which relied on Shumaker ⅛ inaccurate citation to Evans. Tipton, 770 S.W.2d at 241.

We conclude that the analyses in Chamblee and Bender were sound and now depart from those cases holding that the existence of an adequate remedy by appeal precludes the issuance of a writ to prohibit a trial court from acting outside its jurisdiction. We also reinstate the condition deleted by Shumaker that there must be no remedy through an application to an intermediate court. A more precise statement of the rule to which we now return is as follows:

A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

In Hargis v. Parker, Ky., 85 S.W. 704 (1905), a case decided only fourteen years after the adoption of Section 110 of the 1891 Constitution, our predecessor court wrote:

If it be true that the Fayette court is proceeding without jurisdiction, it is not substantial justice that it should be allowed to take the bodies of the complainants, confine them in jail without bail, as it might do at its discretion, subject the parties to enormous expense in defending the case, even if it went no further than a trial of the question of jurisdiction, and say to them, “Your remedy is solely by appeal if you have been wronged.” We think [Section 110] of the Constitution, though it be deemed only declaratory of the common law on the subject, confers the power and jurisdiction on this court to intervene by the writ of prohibition to stay the inferior courts of the state from proceeding out of their jurisdiction. It may issue whether or not there is an appeal.

Id. at 706. Hargis was cited by Chamblee, supra, as authority for the proposition that the existence of a remedy by way of appeal does not control when the inferior court is

acting outside its jurisdiction. Id., 249 S.W.2d at 777.

We have consistently issued 'writs to prohibit criminal proceedings when the lower court was acting outside of its jurisdiction. See Peterson v. Shake, 120 S.W.3d at 710 (circuit court without jurisdiction to try misdemeanor offense as a felony); Spivey v. Jackson, Ky., 602 S.W.2d 158 (1980) (circuit court without jurisdiction to try incarcerated defendant more than 180 days after motion for final disposition was properly filed under KRS 500.110); Crowder v. Schlitz Brewing Co., 295 Ky. 822, 175 S.W.2d 1003 (1943) (quarterly court without jurisdiction to levy fine in excess of $100.00); Pinkleton v. Lueke, 265 Ky. 84, 95 S.W.2d 1103, 1106 (1936) (magistrate without jurisdiction to hold examining trial); City of Bardstown v. Hurst, 121 Ky. 119, 89 S.W. 147, 149 (1905) (city police court without jurisdiction to try defendant for offense committed outside city limits). Of course, if subsequently convicted of an offense greater than manslaughter in the second degree, Appellants would have a right to appeal and to raise the same jurisdictional issue they now raise by way of original action; we conclude, however, that the existence of that right is an inadequate remedy in this circumstance. To paraphrase Commissioner Clay:

If [Judge Maride] lacks jurisdiction to [reject these plea agreements], it would be a most inept ruling to deny the writ, require a trial on the merits, and then on an appeal be forced to reverse the case on the very question which is now before us.

Chamblee, 249 S.W.2d at 777. We turn now to the claim that Judge Maride acted outside of his jurisdiction.

II. JURISDICTION — SEPARATION OF POWERS.

Appellants assert that Judge Maride acted outside his jurisdiction when he rejected the plea agreement because he thereby exercised powers belonging exclusively to the executive department of government. Our Constitution specifically articulates the doctrine of separation of powers.

The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.

Ky. Const. § 27.

No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Ky. Const. § 28.

Perhaps no state forming a part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government than does our Constitution ....

Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, 457 (1922). See also Diemer v. Commonwealth, Ky., 786 S.W.2d 861, 864 (1990) (“Kentucky is a strict adherent to the separation of powers doctrine.”).

The power to define crimes and assign their penalties belongs to the legislative department. KRS 500.020(1) (common law offenses abolished); Cornelison v. Commonwealth, Ky., 52 S.W.3d 570, 573 (2001) (“discretion to define the level of harm and the appropriate punishment is within purview of Legislature”); cf. United States v. Evans, 333 U.S. 483, 486, 68 , 636, 92 L.Ed. 823 (1948) (“[D]e-fíning crimes and fixing penalties are legislative, not judicial functions.”). The power to charge persons with crimes and to prosecute those charges belongs to the executive department. Ky. Const. § 81 (governor to see that laws are faithfully executed); KRS 15.725(1) (Commonwealth’s attorney to prosecute all criminal violations tried in circuit court). Cf. United States v. Nixon, 418 U.S. 688, 693, 94 5.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974) (“Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”); Moore v. Commonwealth, Ky., 983 S.W.2d 479, 487 (1998) (prosecutor has broad discretion as to what crime to charge and what penalty to seek); Commonwealth v. McKinney, Ky.App., 594 S.W.2d 884, 888 (1979) (decision whether to prosecute and what charge to bring is within discretion of prosecutor). The power to conduct criminal trials, to adjudicate guilt, and to impose sentences within the penalty range prescribed by the legislature belongs to the judicial department. People v. Pate, 878 P.2d 685, 694 (Colo.1994) (en banc) (judiciary has exclusive power to impose sentences within limits determined by legislature); People v. Spegal, 5 Ill.2d 211, 125 N.E.2d 468, 472 (1955) (judiciary determines how cases should be tried); State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 729 N.E.2d 359, 362 (2000) (determination of guilt and sentencing of criminal defendant is solely within province of judiciary).

Essentially, Appellants claim that since it lies within the prerogative of the executive department by and through the Commonwealth’s attorney to determine what crime to charge and whether to prosecute it, an indictment “belongs” to the prosecutor who may prosecute, amend, or dismiss it at his or her discretion without interpo-sure from the presiding judge. While that is or has been the law in some common law jurisdictions, e.g., In re Confiscation Cases, 74 U.S. (7 Wall.) 454, 457, 19 L.Ed. 196 (1868); Baglioni v. Chief of Police, 421 Mass. 229, 656 N.E.2d 1223, 1225 (1995); State v. Tufts, 56 N.H. 137 (1875), it is not the law of Kentucky.

Our predecessor court once stated, “An indictment can only be found and presented by a grand jury, and therefore no amendment of an indictment can be allowed.” Commonwealth v. Vanmeter, 8 Ky. Op. 754, 755 (1876).⁶ However, the law of the Commonwealth since at least 1854 has permitted a Commonwealth’s attorney to dismiss an indictment but only “toith the permission of the court.” M.C. Johnson, Joshua Harlan & J.W. Stevenson, Code of Practice in Criminal Cases § 241 (eff. July 1, 1854) (emphasis added); see also John D. Carroll,⁷ Carroll’s Code of Practice in Criminal Cases (“Criminal Code”) § 243 (1st ed. 1888). Similarly, Kentucky Statute (KS) § 123 (1892 Ky. Acts, ch. 100, § 27) provided:

Before the court shall permit any Commonwealth’s or county attorney to dismiss any indictment or enter a nolle prosequi in any case, such attorney shall file a statement, in writing, setting forth the reasons for such dismissal or such failure to prosecute ....

(Emphasis added.) That requirement was also contained in KS 1127(4) (1893 Ky. Acts, ch. 182, § 1). Construing these provisions, our predecessor court held in Commonwealth v. Davis, 169 Ky. 650, 184 S.W. 1121 (1916):

[T]he commonwealth attorney cannot dismiss an indictment without permission of the court, and will be permitted to do so only upon reasons deemed sufficient by the court. This necessarily vests in the circuit judge the right and duty to exercise a discretion in sustaining or overruling such a motion.

Id., 184 S.W. at 1122 (citations omitted).⁸ See also Kidd v. Commonwealth, 255 Ky. 498, 74 S.W.2d 944, 947 (1934) (court has discretion to grant or deny Commonwealth’s attorney’s request to dismiss indictment).

Concomitantly, subject to rare exceptions usually related to a defendant’s claim of a denial of the right to a speedy trial,⁹ 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. See, e.g., Commonwealth v. Allen, Ky., 980 S.W.2d 278, 281 (1998) (dismissal); Commonwealth v. Hicks, Ky., 869 S.W.2d 35, 37 (1994) (dismissal); Allen v. Walter, Ky., 534 S.W.2d 453, 455 (1976) (amendment); Commonwealth v. Huddleston, 283 Ky. 465, 141 S.W.2d 867 (1940) (dismissal); Slater v. Commonwealth, 239 Ky. 620, 40 S.W.2d 389, 391 (1931) (dismissal); Commonwealth v. Flynn, 161 Ky. 289,170 S.W. 617, 618 (1914) (dismissal); Commonwealth v. Hughes, 153 Ky. 34, 154 S.W. 399, 401 (1913) (dismissal); Commonwealth v. Cundiff, 149 Ky. 37, 147 S.W. 767, 768 (1912) (filed away); Commonwealth v. Self, Ky.App., 802 S.W.2d 940, 941-42 (1990) (dismissal); Commonwealth v. McKinney, 594 S.W.2d at 888 (dismissal). Cf. Flynt v. Commonwealth, Ky., 105 S.W.3d 415, 423-24 (2003) (pretrial diversion ordered over prosecutor’s objection); Commonwealth v. Isham, Ky., 98 S.W.3d 59, 61 (2003) (dismissal of criminal complaint by district court); Commonwealth v. Ryan, 5 S.W.3d at 117 (pretrial exclusion of death penalty over prosecutor’s objection).

In Cundiff, swpra, our predecessor court explained the relationship between prosecutor and judge as follows:

First ... where an indictment, for any cause, is to be dismissed or filed away, it can only be done upon motion of the commonwealth’s attorney, or the county attorney who may be acting for him; and, second, that it cannot be done by even the commonwealth’s or county attorney, except the reasons therefore be reduced to writing, and the court, upon having considered the reasons upon which the discontinuance of the prosecution is sought, gives his consent that it may be done. A prosecution by indictment is a litigation in which the state is plaintiff or complainant, and is represented by the commonwealth’s attorney. The judge does not represent the state any more than he does the defendant in the prosecution. His right to control the prosecution goes only to the extent of determining whether or not the indictment is good on demurrer. If he holds it to be a good indictment, he is without power to direct its dismissal.

Id., 147 S.W. at 768 (emphasis added). See also Slater, 40 S.W.2d at 391 (“The dismissal must be by the concurrent action of both the prosecuting attorney and the judge.”).

In 1962, the General Assembly repealed the Criminal Code, 1962 Ky. Acts, ch. 234, § 61(2), and replaced it with the Rules of Criminal Procedure. The Act adopting the new rules states, inter alia, as follows:

PREAMBLE

The Criminal Code Committee, established by the General Assembly for the purpose of improving criminal procedure in the courts of the Commonwealth, having reported its recommendations to the Legislative Research Commission, the Commission having approved the recommendations and formulated plans for their execution, and the Court of Appeals being in accord with these plans, the General Assembly establishes this revised procedure in criminal cases ....

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It is therefore declared to be the policy of the General Assembly ... that prescription of rules governing details of procedure will be left to the discretion of the Judicial Department after the effective date of this Act [emphasis added];

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[Sjubject to the rule-making authority of the Court of Appeals!,]

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

Section 0. The rules in this section are prescribed in accordance with the principle, finding and declaration contained in the preamble to this Act, and with modifications thereof shall be known as the Rules of Criminal Procedure, and may be cited by the abbreviation, ‘RCr’ or by the full title.

1962 Ky. Acts, ch. 234, Preamble, § 0.

Whereas, the revision of criminal procedure effected by this Act is comprehensive ... this Act shall become effective on January 1, 1963. The Rules of Criminal Procedure shall govern further proceedings and prosecutions pending on that date ....

Id. § 63.

The Act set forth the new Rules in the same order and enumeration as they exist today. Thus, contrary to the suggestion in the dissenting opinion, post at 33, the Rules of Criminal Procedure were enacted by the General Assembly, subject to the power of the Judicial Department to amend or repeal them.¹⁰ The Act did not contain an expiration date or a self-repeal-er, and the General Assembly has never repealed any portion of it. Consistent with former Criminal Code § 243, the new Criminal Rule (RCr) 9.64, as enacted in 1962, read:

The attorney for the Commonwealth with the permission of the court, may dismiss the indictment, information or complaint prior to the submission of the case.

Id. at § 0, Rule 9.64 (emphasis added). As subsequently amended by this Court, the Rule now reads:

The attorney for the Commonwealth, with the permission of the court, may dismiss the indictment, information, complaint or uniform citation prior to the swearing of the jury or, in a non-jury case, prior to the swearing of the first witness.

RCr 9.64 (emphasis added.) Thus with respect to the subject at issue, the Rule remains the same today as when enacted by the General Assembly in 1962.

As enacted in 1962, RCr 6.16 read:

The court may pemit an indictment or information to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

1962 Ky. Acts, ch. 234, § 0, Rule 6.16 (emphasis added).¹¹ Although a second sentence was subsequently added to the Rule by this Court giving a defendant the right to a continuance “[i]f justice requires,” the language of the original legislative enactment remains unchanged. Thus, it is simply inaccurate to say, as does the dissenting opinion, post at 33, that there is no legislative authority requiring judicial approval of a prosecutor’s decision to amend or dismiss an indictment. Chapter 234 of the 1962 Kentucky Acts provides that authority until repealed by the General Assembly.

The plea agreements rejected in the underlying action include both dismissals and amendments of the indictment, both of which require judicial approval. As with former Criminal Code § 243, whether to grant or withhold that approval is a matter of judicial discretion. Of course, that only begs the question; for if RCr 6.16 and RCr 9.64 or, for that matter, provisions of our former statutes and criminal codes, violate the requirement of separation of powers, then they are unconstitutional and afford no basis for our case law to the contrary. Although this is an issue of first impression in Kentucky, it is one that has been addressed and resolved in the federal courts.

Rule 9.64 resembles Federal Rule of Criminal Procedure (FRCrP) 48(a) which provides, inter alia, that “[t]he government may, with leave of court, dismiss an indictment, information, or complaint.” (Emphasis added.) The accompanying advisory committee notes stated that the adoption of this provision would “change the common-law rule [in federal courts] that the public prosecutor may enter a nolle prosequi in his discretion, without any action by the court,” and “permit the filing of a nolle prosequi only by leave of court ... similar to the rule now prevailing in many States.” FRCrP 48(a) advisory committee notes, n.l (1944) (citation omitted). The original draft submitted by the advisory committee had included a requirement identical to that in our former statutes, KS 27 and 1127, supra, that the prosecution provide a statement of its reasons for dismissal. The Supreme Court struck this provision and replaced it with the “by leave of court” provision. Mark S. Rhodes, Orfield’s Criminal Procedure Under the Federal Rules § 48:11, at 251 (2d ed.1987).

In the landmark case of United States v. Cowan, 524 F.2d 504 (5th Cir.1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 795 (1976), the district court denied a joint motion by the government and the defendant to dismiss the indictment. The Attorney General argued on appeal that the “by leave of court” provision violated the constitutional requirement of separation of powers. Like Section 81 of the Kentucky Constitution, Article II, Section 3, of the United States Constitution vests the power “to take Care that the Laws be faithfully executed” in the executive branch of government; and similar to KRS 15.725(1), 28 U.S.C. § 547(1) vests in the local United States Attorney authority to prosecute all offenses against the United States. Cowan drew a distinction between the power to initiate and control a criminal proceeding and the power to terminate it. Id. at 507-09 (distinguishing United States v. Cox, 342 F.2d 167, 171 (5th Cir.1965)). Citing United States v. Nixon, 418 U.S. at 707, 94 S.Ct. at 3107, for the proposition that “the separate powers were not intended to operate with absolute independence,” Cowan, 524 F.2d at 512, the court held:

We think the rule should and can be construed to preserve the essential judicial function of protecting the public interest in the evenhanded administration of criminal justice without encroaching on the primary duty of the Executive to take care that the laws are faithfully executed. The resulting balance of power is precisely what the Framers intended.... [T]he phrase “by leave of court” in Rule 48(a) was intended to modify and condition the absolute power of the Executive, consistently with the Framer’s [sic] concept of Separation of Powers, by erecting a check on the abuse of Executive prerogatives.... The rule was not promulgated to shift absolute power from the Executive to the Judicial Branch. Rather, it was intended as a power to check power.

Id. at 512-13. Thus, the “by leave of court” requirement of Rule 48(a) does not violate the doctrine of separation of powers provided that judicial discretion is properly restrained (as further discussed in Part 111(2) of this opinion, infra). Id. at 513. The principle established in Cowan comports with out enunciation in Smothers v. Lewis, Ky., 672 S.W.2d 62 (1984), that “a court, once having obtained jurisdiction of a cause of action, has, incidental to its constitutional grant of power, inherent power to do all things reasonably necessary to the administration of justice in the case before it.” Id. at 64. We conclude that the Cowan analysis also applies to the separation of powers required by Section 28 of our Constitution.

Another reason why RCr 6.16 and RCr 9.64 do not violate the requirement of separation of powers is implicit in the former common law rule cited in Commonwealth v. Vanmeter, supra, that an indictment once issued could not be amended, ie., the indictment is a charge by the grand jury, not the prosecutor.¹² Id., 8 Ky. Op. at 755. Section 12 of our Constitution provides that “[n]o person, for an indictable offense, shall be proceeded against criminally by information ....”¹³

“Indictment” is a technical word, peculiar to Anglo Saxon jurisprudence and implies the finding of a grand jury, as does also the word “presentment.” “Information” is a written accusation of a crime, preferred by a public prosecuting officer without the intervention of a grand jury.

Rice v. Commonwealth, Ky., 288 S.W.2d 635, 637 (1956) (citation omitted).

We have stated in a different context that “[a] grand jury is a part of the court, and under judicial control, so there can be no doubt that a session of the grand jury is a proceeding in a circuit court.” Bowling v. Sinnette, Ky., 666 S.W.2d 743, 745 (1984); Greenwell v. Commonwealth, Ky., 317 S.W.2d 859, 861 (1958). See also Nelson v. Shake, Ky., 82 S.W.3d 914, 916 (2002). The grand jury is summoned and impaneled by the circuit court, KRS 29A.210(1), RCr 5.02; its witnesses are subpoenaed by the circuit court, RCr 5.06, and their testimony can be compelled by the circuit court’s contempt powers, RCr 5.12; and any indictments by the grand jury are returned to the circuit court. RCr 5.20. See also Brown v. United States, 359 U.S. 41, 49, 79 S.Ct. 539, 546, 3 L.Ed.2d 609 (1959) (grand jury, though clothed with great independence, remains an appendage of the court, powerless to function without the court’s aid), overruled on other grounds by Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). This does not mean, however, that the court “controls” the grand jury’s proceedings. “The grand jury’s functional independence from the Judicial Branch is evident both in the scope of its power to investigate criminal wrongdoing and in the manner in which that power is exercised.” United States v. Williams, 504 U.S. 36, 48, 112 S.Ct. 1735, 1742, 118 L.Ed.2d 352 (1992).

Nor does the Commonwealth’s attorney control the grand jury. The Commonwealth’s attorney is the person with “primary responsibility [for] presenting] evidence” to the grand jury concerning alleged criminal violations. KRS 15.725(1). The Commonwealth’s attorney must, when requested, or may, on personal initiative, attend the grand jury for the purpose of questioning witnesses and giving legal advice. RCr 5.14(1). However, the grand jurors may choose to hear no more evidence than that which suffices to convince them that an indictment is warranted, United States v. Williams, supra, at 53, 112 S.Ct. at 1745, and may exclude the Commonwealth’s attorney while they question witnesses, themselves. RCr 5.02. The Commonwealth’s attorney may not be present while the grand jury is deliberating or voting on an indictment. RCr 5.18. Finally, though the Commonwealth’s attorney is required to draft indictments upon request of the grand jury, RCr 5.14(1), the Commonwealth’s attorney does not sign the indictment, RCr 6.06, Miller v. Commonwealth, 270 Ky. 378, 109 S.W.2d 841, 845 (1936),¹⁴ and the indictments are returned not to the Commonwealth’s attorney, but to the court. RCr 5.20.

Nothing in our Constitution, statutes, or rules classifies the grand jury as an arm of the Commonwealth’s attorney. The grand jury is “an investigative body acting independently of either prosecuting attorney or judge.” United States v. Dionisio, 410 U.S. 1, 16, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973) (internal quotation and citation omitted). “The hallmark of the grand jury is its independence from outside influence.” Democratic Party of Ky. v. Graham, Ky., 976 S.W.2d 423, 426 (1998). “[I]t serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.” Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962).

Because the grand jury is an agency of neither the court nor the prosecutor, but an independent agency of constitutional origin, it follows, ipso facto, that RCr 6.16 and RCr 9.64, which require the court’s permission to amend or dismiss an indictment, do not violate Section 28 by authorizing the exercise of a power properly belonging to the executive department. Thus, Judge Maride did not act outside his jurisdiction in denying the motions to dismiss some counts of the indictment and to amend others.

III. CLAIMS OF ERROR.

1. Preliminary determinations.

In addition to reiterating the rule that a writ prohibiting a trial court from acting erroneously within its jurisdiction will issue only when there is “no adequate remedy by appeal or otherwise” and the petitioner will suffer “great and irreparable injury”¹⁵ if the petition is not granted, Bender v. Eaton, supra, further explained that those requirements are but “a practical and convenient formula for determining, prior to deciding the issue of alleged error, if petitioner may avail himself of this remedy.” Id., 343 S.W.2d at 801. In other words, only after determining that the prerequisites exist will the court decide whether an error occurred for which a writ should issue.

Whether the right of appeal is an adequate remedy is an issue necessarily determined on a case-by-case basis. We have consistently found the right of appeal to be an adequate remedy when the petition of a criminal defendant seeks only to correct procedural or trial errors. E.g., Cavender v. Miller, Ky., 984 S.W.2d 848, 849 (1998) (ruling with respect to defendant’s right to discovery); Futrell v. Shadows, Ky., 828 S.W.2d 649, 651 (1992) (evi-dentiary ruling); Barnes v. Ashcraft, Ky., 490 S.W.2d 484, 486 (1973) (order overruling motion to void prior conviction used for penalty enhancement); Bentley v. Moore, Ky., 239 S.W.2d 237, 237-38 (1951) (order denying change of venue); Brewer v. Vallandingham, 231 Ky. 510, 21 S.W.2d 831, 832 (1929) (consideration of Commonwealth’s motion to change venue); Fish v. Benton, 138 Ky. 644, 128 S.W. 1067 (1910) (order changing venue). However, we have found the right of appeal inadequate when the petition of a criminal defendant seeks to prohibit a proceeding allegedly barred by the constitutional proscription against double jeopardy. E.g., Commonwealth v. Stephenson, Ky., 82 S.W.3d 876, 880 (2002); St. Clair v. Roark, Ky., 10 S.W.3d 482, 485 (2000); Crawley v. Kunzman, Ky., 585 S.W.2d 387, 388 (1979) (“The right of appeal is not an adequate remedy against double jeopardy.”); but see Jones v. Hogg, Ky., 639 S.W.2d 543, 543-44 (1982) (Crawley’s holding applies only when the petitioner has been acquitted and faces retrial).

The claim in this case is more akin to the latter class of cases than to the former; for Appellants essentially claim immunity from further prosecution. If Judge Maride erred in rejecting a plea agreement that would have permitted Appellants to plead guilty to a lesser included offense, subjecting them to a trial for the greater offense, though technically not double jeopardy, would have the same effect. Cf. Price v. Georgia, 398 U.S. 323, 326-27, 90 S.Ct. 1757, 1760, 26 L.Ed.2d 300 (1970) (conviction of lesser included offense operates as acquittal of offense of higher degree so that, if the conviction is reversed for a new trial, the defendant cannot be retried for the higher offense); Klee v. Lair, Ky., 621 S.W.2d 892, 893 (1981) (same). Applying the logic of Hargis v. Parker, supra, that it is not enough under this circumstance to say to Appellants, “Your remedy is solely by appeal if you have been wronged,” 85 S.W. at 706, we conclude that the right of appeal is inadequate in this circumstance.

We turn now to the requirement of “great injustice and irreparable injury.” In Litteral v. Woods, 223 Ky. 582, 4 S.W.2d 395 (1928), our predecessor court defined great injustice and irreparable injury as “incalculable damage to the applicant ... either to the liberty of his person, or to his property rights, or other far-reaching and conjectural consequences.” Id., 4 S.W.2d at 396-97 (emphasis added). Litteral cited as an example Natural Gas Products Co. v. Thurman, 205 Ky. 100, 265 S.W. 475 (1924), where the failure to issue the writ would have required the closing of a newly constructed and fully operational manufacturing plant. Distinguishing Thurman, Litteral held that no “great and irreparable injury” would result from the petitioner’s temporary loss of a judgment to which he believed himself entitled in the event of a correct ruling. Id., 4 S.W.2d at 398; see also Farmers Nat’l Bank of Danville v. Speckman, 312 Ky. 106, 226 S.W.2d 315, 317 (1949) (delay and expense of appeal is not irreparable injury); Osborn v. Wolfford, 239 Ky. 470, 39 S.W.2d 672, 673 (1931) (“ ‘[G]reat and irreparable injury’ ... [is] not such an injury as is usually suffered and sustained by a losing litigant upon a trial of his case in a court having jurisdiction thereof, i.e., a mere failure to succeed in that litigation, followed by the loss of that which success might have brought him ... but great and ruinous loss ... for which there was no remedy.”).

Litteral, Farmers National Bank, and Osborn were civil cases, and Litteral specifically identified damage to a person’s liberty as “great injustice and irreparable injury.” Id., 4 S.W.2d at 397. Nevertheless, if Appellants were convicted of murder and sentenced to death, and then obtained a reversal on appeal, their liberty interests would likely be no more affected than if they were permitted to plead guilty to a Class C felony and sentenced to ten years imprisonment. However, Bender v. Eaton, supra, also held that a finding of “great injustice and irreparable injury” is not an absolute prerequisite to considering the merits of a claim of error.

Thus we find that in certain special cases this Court will entertain a petition for prohibition in the absence of a showing of specific great and irreparable injury to the petitioner, provided a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration. It may be observed that in such a situation the court is recognizing that if it fails to act the administration of justice generally will suffer the great and irreparable injury.

Id. at 801; see also Roman Catholic Diocese of Lexington v. Noble, Ky., 92 S.W.3d 724, 729 (2002). We conclude that if Judge Maride erred in rejecting Appellants’ plea agreements, which would unnecessarily subject Appellants to another trial for double murder with possible sentences of death and a lengthy appeal, such would constitute a miscarriage of justice and would disrupt the orderly administration of justice. Thus, we proceed to the merits of the claims of error.

2. Rejection of plea agreement.

“Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” Newman v. United States, 382 F.2d 479, 480 (D.C.Cir.1967). Thus, “[a] judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them.” United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir.1992). “Courts do not know which charges are best initiated at which time, which allocation of prosecutorial resources is most efficient, or the relative strengths of various cases and charges.” United States v. Miller, 722 F.2d 562, 565 (9th Cir.1983) (citations and internal quotes omitted). Thus, we start with the presumption that the party charged with the prosecution of a case is in the best position to evaluate the probability of its success.

The Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated. The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest.

United States v. Cowan, 524 F.2d at 513 (emphasis added). See also Rinaldi v. United States, 434 U.S. 22, 29, 98 S.Ct. 81, 85, 54 L.Ed.2d 207 (1977) (“[T]he District Court was empowered to withhold leave if the Government’s decision to terminate this prosecution clearly disserved the public interest.”) (citing Cowan). “Unless the court finds that the prosecutor is clearly motivated by considerations other than his assessment of the public interest, it must grant the motion to dismiss.” United States v. Hamm, 659 F.2d 624, 630 (5th Cir.1981). Factors that indicate a motivation other than an assessment of the public interest include the acceptance of a bribe, the desire to attend a social event rather than trial, or personal dislike of the victim of the crime. Id. (quoting In re Washington, 544 F.2d 203, 212-13 (5th Cir.1976) (Hill, J., dissenting)). These examples do not exclude other factors contrary to the manifest public interest. Id. n. 19. No one in this case suggests that the special prosecutor was motivated by anything other than “his assessment of the public interest.” However, his motions to dismiss certain counts of the indictment in this case were not independent of the other aspects of the plea agreements. Each agreement required the dismissal of some charges and the amendment of another in exchange for a guilty plea to the amended charge. Since the motions to dismiss were integral to the plea agreements, the issue becomes whether Judge Maride abused his discretion in rejecting the plea agreements.

RCr 8.08 provides that “[t]he court may refuse to accept a plea of guilty ....” Our pronouncements on the extent of a trial court’s discretion under this rule have been arguably inconsistent. Compare Skinner v. Commonwealth, Ky., 864 S.W.2d 290, 294 (1993) (“[T]he court ‘may refuse to accept a plea of guilty.’ The discretion of the trial court exists whether the proposed guilty plea is offered with or without consideration in the form of a plea agreement.”) (quoting RCr 8.08), with Commonwealth v. Corey, Ky., 826 S.W.2d 319, 321 (1992) (“a defendant has an absolute right to unconditionally plead guilty to the crime charged in the indictment”). Federal trial judges have even greater discretion to refuse to accept a guilty plea. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) (“There is, of course, no absolute right to have a guilty plea accepted. A court may reject a plea in exercise of sound judicial discretion.”) (citations omitted); North Carolina v. Alford, 400 U.S. 25, 38 n.11, 91 S.Ct. 160, 168 n.11, 27 L.Ed.2d 162 n.11 (1970) (“A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court .... ”). However, it is clear that in Kentucky, a defendant has no right to plead guilty to a lesser included offense for the purpose of precluding conviction of the indicted offense. Cobb v. Commonwealth, Ky.App., 821 S.W.2d 817, 818 (1992).

There is, of course, no constitutional right to plea bargain. Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977); Commonwealth v. Reyes, Ky., 764 S.W.2d 62, 64 (1989). While a defendant may have the right to hold the prosecution to its bargain in certain circumstances,¹⁶ this right does not attain constitutional significance until the plea agreement is executed. “A plea bargain standing alone is without constitutional significance; in itself, it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.” Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 2546, 81 L.Ed.2d 437 (1984); see also Allen v. Walter, Ky., 534 S.W.2d 453, 455 (1976) (per curiam) (“The order of the trial court that is under attack here has not been signed, hence the guilty plea has not been officially accepted. In this status the defendant is as free to withdraw it as the trial court is to accept or reject it.”); compare Matheny v. Commonwealth, supra note 16, at 758 (“Once the trial court accepted Matheny’s plea, the plea agreement became binding on the Commonwealth and Matheny was entitled to enforce it.”).

Federal courts generally recognize three types of plea bargains. A “sentence bargain” is an agreement in which the prosecutor agrees to recommend or not to oppose a particular sentence in exchange for a guilty plea to the original charge. Miller, 722 F.2d at 563. Since sentencing is a function of the judiciary, a judge’s discretion to accept or reject a sentence bargain is unfettered. United States v. Robertson, 45 F.3d 1423, 1437 (10th Cir.1995); United States v. Adams, 634 F.2d 830, 835 (5th Cir.1981), superseded by regulation on other grounds as stated in United States v. Diaz, 138 F.3d 1359, 1364 (11th Cir. 1998). A “charge bargain,” is an agreement by the prosecutor to reduce the original charge in exchange for the defendant’s agreement to plead guilty to the reduced charge, United States v. Pimentel, 932 F.2d 1029, 1033 (2d Cir.1991), and/or to dismiss some charges in exchange for pleas of guilty to others. United States v. Carrigan, 778 F.2d 1454, 1462 (10th Cir. 1985). A “hybrid bargain” • is a charge bargain accompanied by an agreement by the prosecutor to recommend or not oppose a particular sentence in exchange for a plea of guilty to the reduced charges. Robertson, 45 F.3d at 1437. Charge bargains affect the court’s sentencing authority only incidentally, in the same manner as a prosecutor’s decision whether to initiate charges restrains the court’s sentencing powers. Id. at 1438; see also Carrigan, 778 F.2d at 1464. Hybrid bargains implicate not only the prosecutorial authority of the Executive but also the adjudicatory and sentencing authority of the Judiciary and the discretion of a trial court to accept or reject a guilty plea. Robertson, 45 F.3d at 1438.

Federal courts must reject plea agreements that undermine the federal sentencing guidelines. The following comments from the Senate Judiciary Committee report regarding proposed 28 U.S.C. § 994(a)(2)(D) (now 28 U.S.C. § 994(a)(2)(E)) explain the underlying rationale:

The concern is that the prosecutor will use the plea bargaining process to circumvent the guidelines recommendation .... The bill contains a provision designed to avoid this possibility. Under proposed 28 U.S.C. 994(a)(2)(D), the Sentencing Commission is directed to issue policy statements for consideration by Federal judges in deciding whether to accept a plea agreement. This guidance will assure that judges can examine plea agreements to make certain that prosecutors have not used plea bargaining to undermine the sentencing guidelines.

S.Rep. No. 225-98, at 63 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3246. See also United States v. Banuelos-Rodriguez, 215 F.3d 969, 976 (9th Cir.2000) (discussing and quoting same). Accordingly, Section 6B1.2(a) of the United States Sentencing Guidelines (U.S.S.G.) provides that:

In the case of a plea agreement that includes the dismissal of any charges or an agreement not to pursue potential charges, the court may accept the agreement if the court determines, for reasons stated on the record, that the remaining charges adequately reflect the seriousness of the actual offense behavior and that accepting the agreement will not undermine the statutory purposes of sentencing or the sentencing guidelines.

U.S. Sentencing Guidelines Manual § 6B 1.2(a) (emphasis added) (internal citation omitted). The Commentary to this provision in the Guidelines explains that “when the dismissal of charges or agreement not to pursue potential charges is contingent upon acceptance of a plea agreement, the court’s authority to adjudicate guilt and impose sentence is implicated .... ” Id. cmt. Thus, federal trial courts are required to exercise their power under FRCrP ll(c)(l)(3) to ensure that plea agreements reflect the seriousness of the underlying criminal behavior and the statutorily contemplated sentencing range. The same concerns apply here where our General Assembly has established sentencing guidelines, though less rigid than federal guidelines, by providing maximum and minimum penalties applicable to each offense. KRS 532.060 (imprisonment for felonies); KRS 532.090 (imprisonment for misdemeanors); KRS 534.030 (fines for felonies); KRS 534.040 (fines for misdemeanors and violations); KRS 534.050 (fines for corporations).

We said in Commonwealth v. Corey, supra, that plea agreements are “subject to the approval of the court,” id., 826 S.W.2d at 320, and federal law is in accord. United States v. Sandles, 80 F.3d 1145, 1147 (7th Cir.1996) (“We review the court’s decision to accept or reject a plea agreement for abuse of discretion.”); FRCrP 11 advisory committee’s notes (1974) (“[t]he plea agreement procedure does not attempt to define criteria for the acceptance or rejection of a plea agreement. Such a decision is left to the discretion of the individual trial judge.”). Thus, although a federal court may deny a prosecutor’s independent motion to dismiss an indictment under FRCrP 48(a) only when the motion is “clearly contrary to manifest public interest,” Cowan, 524 F.2d at 513, its discretion under FRCrP 11(c)(3)(A) is much broader, because a plea agreement permits a prosecutor to exercise substantial control over the judge’s sentencing power. Pimentel, 932 F.2d at 1033 (discretion to reject plea agreement reducing charges is less limited than discretion to refuse a motion to dismiss); United States v. Escobar Noble, 653 F.2d 34, 37 (1st Cir.1981) (“Plea bargains ... go to the traditionally judicial function of determining what penalty to impose.”); United States v. Bean, 564 F.2d 700, 704 (5th Cir.1977) (“Although the plea bargain was cast in the form of a dismissal of [a] count ... the district judge properly exercised reasonable discretion in rejecting the plea bargain in order to impose an appropriate sentence .... ”). A judge’s sentencing discretion is necessarily confined to the charges in the indictment and the range of penalties assigned to those charges. “Since the counts dismissed pursuant to plea bargains often carry heavier penalties than the counts for which a guilty plea is entered, a plea bargain to dismiss charges is an indirect effort to limit the sentencing power of the judge.” Id.; see also United States v. Torres-Echavarria, 129 F.3d 692, 696 (2d Cir.1997) (“[W]hen the dismissal of charges or agreement not to pursue potential charges is conditioned on acceptance of a plea agreement, the court’s authority to adjudicate guilt and impose sentence is implicated, and the court is to determine whether or not dismissal of charges will undermine the sentencing guidelines.”); Carrigan, 778 F.2d at 1464 (“The ultimate effect of the dismissal of charges against [the defendant] under the plea bargain was to restrict the district court’s ability to impose what it considered an appropriate sentence .... ”).

Thus, although a court may not adopt a categorical policy to reject all charge (or hybrid) bargains, Miller, 722 F.2d at 564-65, its discretion to accept or reject such an agreement is limited only by the requirement that it independently review each bargain placed before it, and set forth in the record both the prosecutor’s reasons for forming the bargain and the court’s justification for rejecting it. Id. at 566 (citing United States v. Ammidown, 497 F.2d 615, 623 (D.C.Cir.1973)). “[Requiring district courts to articulate a sound reason for rejecting a plea is the surest way to foster the sound exercise of judicial discretion.” United States v. Moore, 916 F.2d 1131, 1136 (6th Cir.1990). We agree.

To summarize federal law on this subject, an “independent” motion by a prosecutor to dismiss or amend an indictment must be sustained unless clearly contrary to manifest public interest. Cowan, 524 F.2d at 513. A “sentence bargain,” which does not involve dismissal or amendment of any charges but does involve a recommendation or agreement not to oppose a particular sentence, can be approved or rejected in the discretion of the trial court. Robertson, 45 F.3d at 1437. A “charge bargain,” which dismisses or amends one or more charges in exchange for a guilty plea to the reduced charges, or a “hybrid bargain,” which is a charge bargain with an additional agreement with respect to sentencing, can be approved or rejected in the discretion of the trial court, Miller, 722 F.2d at 566, but the trial court must articulate the prosecutor’s reasons for forming the bargain and the court’s reasons for rejecting it.¹⁷ Id.; Ammidown, 497 F.2d at 623. While these rules are not binding on the states, Hurtado v. California, supra note 6, we conclude that they establish sound and reasonable guidelines. Thus, we adopt these principles for Kentucky.

Because the sentence recommendation was the maximum sentence for the reduced charge, the plea bargain in the underlying case was a charge bargain rather than a hybrid bargain. The prosecutor’s reasons for forming the bargain were stated in the written plea agreement. The parties agree that Judge Maride stated on the record that his reason for rejecting the agreement was because it was “too lenient.” Thus, there was substantial compliance with the requirements of Miller and Ammidown, supra. The issue becomes whether Judge Maride abused his discretion in rejecting the agreement as “too lenient.”

While we have no precedent on this issue, federal courts have recognized, both before and after the adoption of the sentencing guidelines, that excessive leniency is an appropriate ground for rejecting a plea agreement.

The proposition that a facially proper plea agreement must be approved unless disapproval is required by a concern for the rights of the defendant is a far too restrictive view of the court’s proper concerns. The plea bargaining process is an essential component of the administration of justice, and if the court has reasonable grounds for believing that acceptance of the plea would be contrary to the sound administration of justice, it may reject the plea.

United States v. Severino, 800 F.2d 42, 46 (2d Cir.1986) (internal quotation and citation omitted). See also United States v. Jeter, 315 F.3d 445, 447 (5th Cir.2002) (“The court’s belief that the defendant would receive too light a sentence is a sound reason for rejecting a plea agreement.”); Torres-Echavarria, 129 F.3d at 696 (“Among the reasons that may justify the exercise of discretion to reject a plea agreement is a concern that the resulting sentence would be too lenient.”); United States v. Skidmore, 998 F.2d 372, 376 (6th Cir.1993) (“[A] district court [may] reject a plea agreement either because the proposed agreement is too lenient or because it is too harsh.”); Carrigan, 778 F.2d at 1462 (“While ‘[t]he procedures of Rule 11 are largely for the protection of criminal defendants ... Rule 11 also contemplates the rejection of a negotiated plea when the district court believes that bargain is too lenient, or otherwise not in the public interest.’ ”) (quoting Miller, 722 F.2d at 563). We agree that excessive leniency undermines the sound administration of justice and is a proper factor for a trial judge to consider when evaluating a plea agreement.

Here, because Appellants were each charged with two counts of intentional murder, the death penalty was an authorized punishment. KRS 532.025(2)(a)6, (3).¹⁸ Under the plea agreement, each Appellant would have been convicted of only one Class C felony carrying a maximum sentence of ten years imprisonment. Judge Maride presided over the first trial and heard all of the evidence against Appellants. After hearing additional evidence from the victims’ families and friends, he concluded that the agreed sentence was too lenient and rejected it. That is exactly the discretionary role that RCr 8.08 contemplates for trial courts. We are unable to conclude that Judge Maricle’s exercise of his discretion was not “reasoned and supported by the record,” Workman v. Commonwealth, Ky., 580 S.W.2d 206, 207 (1979) (citations omitted), overruled on other grounds by Morton v. Commonwealth, Ky., 817 S.W.2d 218 (1991), or that his decision was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, Ky., 993 S.W.2d 941, 945 (1999). Thus, he did not abuse his discretion in rejecting this plea agreement. See Commonwealth v. Watson, 393 Mass. 297, 471 N.E.2d 88, 91 (1984) (finding no abuse of discretion when trial court refused to accept guilty plea to second degree murder in lieu of first degree murder when there was overwhelming evidence of guilt).

S. Testimony of victims’ families and friends.

When evaluating a plea agreement pursuant to RCr 8.08, the trial court may consider the opinions of the crime victims. Matheny, 37 S.W.3d at 756 (“The impact of a crime victim’s input on the viability of a consummated plea agreement is for the trial court alone to decide.”). The Commonwealth’s attorney has an obligation to consult with the victim on the disposition of the case, including “a negotiated plea.” KRS 421.500(6). If the victim is unable to prevail upon the prosecutor, he or she may seek solace from the judge. See Wilson v. Commonwealth, Ky.App., 839 S.W.2d 17, 21 (1992) (“ ‘[T]he rights provided to crime victims by KRS 421.500 through 421.550 belong to the victim independent of the Commonwealth, and cannot be plea bargained away without the crime victim’s actual approval.”); Sara N. Welling, Victim Participation in Plea Bargains, 65 Wash. U. L.Q. 301, 355 (1987) (“Exposing the trial judge to the victim’s views is an effective approach because trial judges currently have sufficient discretion in accepting plea bargains to take the victim’s information into account and reject the plea bargain if the bargain is overly lenient to the defendant.”).

A victim has the right to submit a “victim impact statement” pursuant to KRS 421.520, and the trial court must consider that statement “prior to any decision on the sentencing ... of the defendant.” KRS 421.520(3); Wilson, 839 S.W.2d at 21 (“The victim has the right to convey the impact of the crime to the court and take a stand on sentencing. The Commonwealth and appellant could not dispose of these rights by their own agreement.”). Although KRS 421.500(1) defines a victim whose statements “shall be considered by the court,” KRS 421.520(3) (emphasis added), the trial judge is not precluded from considering statements from other family members or friends of the victim. Brand v. Commonwealth, Ky. App., 939 S.W.2d 358, 360 (1997). Appellants’ reliance on Schroering v. McKinney, Ky., 906 S.W.2d 349 (1995), is misplaced. Schroering only held that the widow of a homicide victim had no standing to petition the Court of Appeals for a writ of mandamus to compel the trial court to set aside an order granting shock probation.

Accordingly, we affirm the Court of Appeals’ decision to deny Appellants’ petition for a writ of prohibition, although on other grounds than those stated in its opinion.

All concur as to Part I.

LAMBERT, C.J.; GRAVES, JOHNSTONE, and WINTERSHEIMER, JJ., concur as to Part II.

KELLER, J., dissents by separate opinion as to Part II, with STUMBO, J., joining that opinion.

LAMBERT, C.J.; GRAVES, and JOHNSTONE, JJ., concur as to Part III. KELLER, J., concurs in part and dissents in part by separate opinion as to Part III, with STUMBO, J., joining that opinion. WINTERSHEIMER, J., concurs in result only as to Part III without separate opinion.

1 . Since 1976, every litigant in Kentucky, except the Commonwealth in a criminal case, has had a constitutional right to appeal to a higher court. Ky. Const. § 115; 1974 Ky. Acts, ch. 84, § 1.

2 . Prior to January 1, 1976, only one appellate court existed in Kentucky, denominated the "court of appeals." The 1975 amendment of the Judicial Article transformed the "old” court of appeals into the present Supreme Court, 1974 Ky. Acts, ch. 84, § 2(1), (6) — (8), and created a new intermediate court, denominated the "Court of Appeals.” Id. at § 2(3).

3 . The absolute right to appeal to a higher court was not established until 1976. See note 1, supra.

4 . Nevertheless, Shumaker addressed the jurisdictional issue raised by the petition and concluded that the trial court was not acting outside its jurisdiction. Id. at 132.

5 . It is possible that the error in Shumaker was one of transcription since the opinion substituted "there is no adequate remedy by appeal” for Evans’s "there is no remedy through an application to an intermediate court.”

6 . The United States Supreme Court reached the same conclusion in Ex Parte Bain, 121 U.S. 1, 8-13, 7 S.Ct. 781, 785-87, 30 L.Ed. 849 (1887), overruled in part by United States v. Miller, 471 U.S. 130, 144, 105 S.Ct. 1811, 1819, 85 L.Ed.2d 99 (1985) (Bain invalid insofar as it precludes amendment to lesser included offense). However, Bain does not affect our analysis because the Grand Jury Clause of the Fifth Amendment is not applicable to the states. Hurtado v. California, 110 U.S. 516, 534-35, 4 S.Ct. 111, 120, 28 L.Ed. 232 (1884).

7 . In addition to compiling Canoll’s Kentucky Codes (first compiled in 1888) and Carroll's Kentucky Statutes (first compiled in 1894 and officially adopted as the law of Kentucky in 1904), Judge Carroll also served as a delegate to the 1890 Constitutional Convention, as the first commissioner of the “old" court of appeals, and as a member of that court from 1907 until 1921, including two years as chief justice.

8 . In Huff v. Commonwealth, 217 Ky. 247, 289 S.W. 246, 247 (1926), the court noted that a Commonwealth’s attorney could avoid the stricture of KS 1127 by filing away or continuing the prosecution, a procedure commonly used when, after issuance of an indictment, the defendant cannot be found within the jurisdiction, witnesses are unavailable, or it is deemed appropriate to abate the prosecution conditioned upon the defendant’s compliance with certain requirements. E.g., Commonwealth v. Jones, 297 Ky. 534, 180 S.W.2d 558, 559 (1944); Means v. Commonwealth, 256 Ky. 30, 75 S.W.2d 546, 547 (1934) (abatement of prosecution conditioned upon defendant leaving the state); Miller v. Commonwealth, 192 Ky. 709, 234 S.W. 307, 309 (1921); Jones v. Commonwealth, 114 Ky. 599, 71 S.W. 643 (1903) (generally approving of the practice of filing away indictments in case where prosecutor was unprepared for trial); Commonwealth v. Bottoms, 105 Ky. 222, 48 S.W. 974, 975 (1899). The practice is regarded not as a dismissal, which would require a reindictment, but as an indefinite continuance. Id., 48 S.W. at 975. Similarly, in United States v. Greater Blouse, Skirt & Neck-wear Contractors, Inc., 228 F.Supp. 483 (S.D.N.Y.1964), the court noted in construing Federal Rule of Criminal Procedure (FRCrP) 48(a) that if the court withheld its permission to dismiss an indictment, the Attorney General could simply decline to move the case for trial because the doctrine of separation of powers would deprive the court of authority to compel prosecution. Id. at 489.

9 . Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973) (dismissal is the only possible remedy for denial of Sixth Amendment right to speedy trial); Rosen v. Watson, Ky., 103 S.W.3d 25, 30 (2003) (writ properly issued to preclude prosecution where Commonwealth failed to comply with statutory speedy trial right granted in KRS 500.110); Lovitt v. Commonwealth, Ky., 592 S.W.2d 133, 134 (1979) (per curiam) (failure of Commonwealth to comply with Interstate Agreement on Detainers, KRS 440.450, Art. III(l), required dismissal). See also Commonwealth v. Baker, Ky.App., 11 S.W.3d 585, 588-90 (2000) (indictment properly dismissed upon proof that prosecutor knowingly or intentionally presented false, misleading or perjured testimony to grand jury and defendant was prejudiced as a result).

10 . Although our predecessor court stated in Lunsford v. Commonwealth, Ky., 436 S.W.2d 512, 514 (1969), that "we deduce that the General Assembly did not in fact intend to enact any of the Rules prescribed in the Act” it cited for that proposition only Section 60(2) of the Act which dealt with the effect of subsequent legislative amendments. Lunsford has never since been cited for such a proposition; and, in retrospect, we can discern no intent from the language, "Be it enacted ...” except an intent to "enact.” Of course, a court has no authority to repeal a legislative enactment.

11 . The rule is consistent with the holding in United States v. Miller, supra note 6, that an indictment may be amended to charge a lesser included offense to the one charged in the indictment but not to charge a new or different offense to the defendant’s prejudice. Frizzell v. Commonwealth, Ky., 511 S.W.2d 200 (1974).

12 . There is federal authority that a grand jury cannot issue an indictment over the objection of the United States Attorney. United States v. Cox, 342 F.2d at 171-72. That holding, however, is not binding on us. Hurtado v. California, supra note 6, at 534-35, 4 S.Ct. at 111 (Grand Jury Clause of Fifth Amendment not applicable to states).

13 . However, a defendant can waive this requirement and agree to be proceeded against by information. Malone v. Commonwealth, Ky., 30 S.W.3d 180, 184 (2000).

14 . Compare federal law as applied in United States v. Cox, 342 F.2d at 171-72 (Court cannot force United States Attorney to sign indictment and indictment not signed by United States Attorney is invalid.).

15 . Note the deletion of the word “injustice.” It was reinserted in Southeastern United Medigroup, 952 S.W.2d at 199, and is included in our present formulation of the rule, discussed in Part I of this opinion, supra. See Commonwealth v. Ryan, 5 S.W.3d at 115.

16 . There is no allegation here that the prosecutor did not carry out his portion of the plea agreement, Reyes, 764 S.W.2d at 65 (the judge simply did not approve it); or that Judge Maride ever indicated concurrence in the agreement, id. at 66; cf. Haight v. Commonwealth, Ky., 760 S.W.2d 84, 88-89 (1988) (defendant could withdraw guilty plea where trial court imposed death penalty after insinuating he would honor recommendation that it not be imposed); or that Appellants acted in detrimental reliance on the agreement. Fraser v. Commonwealth, Ky., 59 S.W.3d 448, 458 (2001); Matheny v. Commonwealth, Ky., 37 S.W.3d 756, 758 (2001) (defendant having changed his plea in reliance on the agreement, the prosecutor was required to make the sentencing recommendation to which he had agreed); Putty v. Commonwealth, Ky., 30 S.W.3d 156, 159 n. 1 (2000); Smith v. Commonwealth, Ky., 845 S.W.2d 534, 537 (1993) (reversal for a new penalty phase required when prosecutor represented to defendant that the case would be tried as a non-capital case, but later sought the death penalty).

17 . Under sentencing guidelines requirements, federal courts must also state their reasons for accepting charge or hybrid bargains. U.S. Sentencing Guideline Manual § 6B 1.2(a). That is not the issue here and our sentencing statutes are sufficiently dissimilar from the federal sentencing guidelines that we perceive no need to impose that requirement on our trial courts.

18 . Because of the limited record before us, we do not know if the prosecutor actually sought capital punishment in this case. See KRS 532.025(l)(a) (prosecutor to give notice of aggravating circumstances).