RENDERED: AUGUST 30, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0975-MR
KEITH BRADLEY APPELLANT
APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE STEVE ALAN WILSON, JUDGE ACTION NO. 19-CR-00579
COMMONWEALTH OF KENTUCKY APPELLEE
AND
NO. 2022-CA-0977-MR
APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE STEVE ALAN WILSON, JUDGE ACTION NO. 18-CR-00510
COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, KAREM, AND LAMBERT, JUDGES.
ACREE, JUDGE: Appellant, Keith Bradley, appeals the Warren Circuit Court’s
May 25, 2022 Judgment and Sentence on Plea of Guilty. Bradley alleges (1) he
was denied both his constitutional and statutory rights to a speedy trial; and (2) the
circuit court erred in concluding Bradley was not partially exempt from
prosecution based on Kentucky’s “Good Samaritan Law”, KRS1 218A.133. We
affirm.
BACKGROUND
On December 18, 2017, Bradley was stopped for speeding in Warren
County. Bradley had an active warrant and was arrested. During a search incident
to his arrest, the police discovered on his person suspected methamphetamine and a
gabapentin pill – a drug for which Bradley did not have a prescription. Suspected
cocaine and more suspected methamphetamine were discovered in Bradley’s truck.
Bradley was released on bond. Bradley was indicted for tampering with physical
evidence, two counts of first-degree possession of a controlled substance, and
driving under the influence.
1 Kentucky Revised Statutes.
-2- Two months later, on February 28, 2018, Bradley was with a friend,
Tessa Reece, when she began to overdose. Bradley asked a neighbor to call 911
while he stayed with Reece. Paramedics were unable to save Reece. Bradley
admitted to the police that methamphetamine was in his truck, and he was arrested.
Bradley was indicted on charges of second-degree manslaughter, first-degree
trafficking in a controlled substance, possession of drug paraphernalia, and first-
degree persistent felony offender.
Bradley’s two cases were consolidated. He pleaded not guilty to all
charges. Bradley and the Commonwealth began negotiating an Alford2 plea and
negotiations continued until May 13, 2019. A pretrial conference was set for June
17, 2019. For unknown reasons, the circuit court continued the trial until July 22,
2020 and scheduled a pretrial conference for June 22, 2020. On March 20, 2020,
the parties, by agreement, rescheduled the pretrial conference for July 6, 2020.
Bradley filed a pro se motion to dismiss in June 2020. Apparently,
Bradley’s appointed counsel declined to file the motion on Bradley’s behalf.
Bradley argued KRS 218A.133 – commonly called the “Good Samaritan Law” –
exempted him from prosecution for the charges stemming from Reece’s death.
Bradley wanted to be present at the hearing on the motion, which resulted in
2 Under North Carolina v. Alford, a defendant is permitted to acknowledge the strength of the evidence against him and enter a guilty plea while maintaining his innocence. 400 U.S. 25, 36-37, 91 S. Ct. 160, 167, 27 L. Ed. 2d 162 (1970).
-3- another continuance of the pretrial conference and trial. The pretrial conference
was rescheduled for September 9, 2020, and the trial was continued to December
15, 2020. The trial did not take place in December 2020, and the Commonwealth
acknowledges that it “is not clear” why the circuit court did not hold the trial.
Bradley filed a second motion to dismiss in March of 2021, again
relying on KRS 218A.133. In a letter accompanying the motion, Bradley refiled
the motion because circuit court staff told him that there was no record of his
original motion. The circuit court scheduled status conferences for April 26, June
22, and August 23, 2021.
On August 9, 2021, Bradley filed his speedy trial motion. The circuit
court considered the motion at the previously scheduled August 23, 2021 status
conference. The circuit court scheduled another pretrial conference for October
18, 2021, and set trial for November 3, 2021. The trial was continued to
November 12. Again, the trial did not take place on that date.
Instead of conducting the trial, the circuit court considered Bradley’s
motion to dismiss. The circuit court granted the motion as to Bradley’s possession
charge but denied the motion as to his trafficking charge. Yet again, the circuit
court scheduled a pretrial conference for March 8, 2022, and scheduled trial for
July 12, 2022.
-4- Bradley filed a third motion to dismiss on February 14, 2022, arguing
the Commonwealth failed to prosecute his case. He argued the case should be
dismissed because his speedy trial motion was still pending, and the
Commonwealth had taken no action in response to the motion in more than 180
days.
The circuit court considered Bradley’s arguments on his motion to
dismiss for failure to prosecute at the March 8, 2022 pretrial conference. Bradley
argued his original case had been pending for three years and nine months, that his
second case had been pending for two years and nine months, and that his speedy
trial motion had been pending for seven months. He acknowledged that in-person
court proceedings had been suspended for a year due to COVID. The circuit court
denied Bradley’s motion, noting that COVID-related delays and a prosecutor’s
injury provided just cause for the delay.
Bradley entered his Alford plea on May 23, 2022, pleading guilty to
first-degree possession of a controlled substance, driving under the influence, first-
degree wanton endangerment, and first-degree trafficking in a controlled
substance. Bradley received a total sentence of eighteen years of incarceration.
On his motion to enter guilty plea, Bradley handwrote: “does not waive right to
appeal pretrial motions.” This is the only reference to preservation of his right to
appeal on any documents relating to his plea, and the circuit court’s order on
-5- Bradley’s guilty plea explicitly states that Bradley understood he waived both his
right to appeal and his right to a speedy trial. Bradley now appeals.
ANALYSIS
I. Preservation of Right to Appeal
We must first address the Commonwealth’s contention that Bradley
waived his right to appeal by entering his guilty plea, despite his motion to enter
guilty plea reflecting Bradley’s intention to the contrary. The Commonwealth
argues that no order or other document of the circuit court reflects that Bradley
pleaded guilty on the condition he would be able to appeal the circuit court’s
rulings on his pretrial motions. Indeed, the circuit court’s order explicitly states
otherwise. The Commonwealth argues Bradley’s handwritten amendment to his
motion was insufficient to preserve Bradley’s right to appeal.
This issue arose in Dickerson v. Commonwealth, in which the
Commonwealth argued a defendant, Dickerson, failed to preserve his right to
appeal. 278 S.W.3d 145, 148 (Ky. 2009). There, too, “nothing in the final
judgments of conviction in question actually reflects that Dickerson’s guilty plea
was conditional.” Id. However, because Dickerson’s motion to enter guilty plea
contained the word “conditional” handwritten at the top, and because similar
handwritten notations appeared on the Commonwealth’s plea offer and the
-6- arraignment order entered after Dickerson’s guilty plea, the Supreme Court of
Kentucky determined Dickerson had minimally preserved his right to appeal. Id.
The Supreme Court in Dickerson derived the following rule from
applicable precedent to determine whether a defendant preserved his right to
appeal:
Synthesizing our precedent in this area leads to the conclusion that we will consider issues on appeal from a conditional guilty plea only if those issues: (1) involve a claim that the indictment did not charge an offense or the sentence imposed by the trial court was manifestly infirm, or (2) the issues upon which appellate review are sought were expressly set forth in the conditional plea documents or in a colloquy with the trial court, or (3) if the issues upon which appellate review is sought were brought to the trial court’s attention before the entry of the conditional guilty plea even if the issues are not specifically reiterated in the guilty plea documents or plea colloquy.
Id. at 149.
In our view, Bradley’s handwritten amendment to his motion to enter
his guilty plea adequately preserved his right to appeal the circuit court’s handling
of his pretrial motions. By doing so, he expressly set forth the issues he sought to
appeal as the rule in Dickerson contemplates. Both the Commonwealth and the
circuit court had notice that Bradley intended his guilty plea to be conditioned
upon his right to appeal the denial of his pretrial motions. Accordingly, the issues
raised in Bradley’s appellate brief are properly before us for our review.
-7- II. Speedy Trial
Bradley first argues the circuit court erred by denying his motion for a
speedy trial because the circuit court deprived him of both his statutory and
constitutional rights to a speedy trial. The Sixth Amendment to the United States
Constitution guarantees criminal defendants “the right to a speedy and public
trial[.]” UNITED STATES CONST. amend VI. This right applies to the states by
application of the Due Process Clause of the Fourteenth Amendment to the United
States Constitution. Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 2184, 33
L. Ed. 2d 101 (1972) (citations omitted). The Kentucky Constitution also
guarantees “a speedy public trial” to criminal defendants. KY. CONST. § 11. In
furtherance of this right, the General Assembly enacted KRS 500.110:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and whenever during the continuance of the term of imprisonment there is pending in any jurisdiction of this state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
-8- KRS 500.110. Trial courts, therefore, have “the ability to grant continuances
extending the disposition of the untried indictment beyond 180 days after the
statutory right is invoked.” Darcy v. Commonwealth, 441 S.W.3d 77, 83 (Ky.
2014). Further, because the statute empowers trial courts to grant “any necessary
or reasonable continuance,” the General Assembly clearly intended trial courts to
have broad power in granting such continuances. KRS 500.110 (emphasis added);
see Darcy, 441 S.W.3d at 84.
As KRS 500.110 states, unless good cause existed for the circuit court
to grant a reasonable or necessary continuance, the circuit court was required to
bring Bradley to trial within 180 days of his invocation of the statute. Bradley
invoked the statute in his August 9, 2021 motion for speedy trial. The circuit court
never held a trial; after Bradley filed his motion, the circuit court continued the
trial from November 3, 2021, to November 12, 2021, and, again, to July 12, 2022.
The circuit court set Bradley’s ultimate trial date for nearly a year after he filed his
motion.
However, the circuit court had good cause for this delay. Apparently,
the Commonwealth’s Attorney suffered a serious injury, which both Bradley and
the Commonwealth describe in their briefs as “life-threatening.” This is analogous
to a delay in Barker v. Wingo, wherein the Supreme Court of the United States
described the illness of the sheriff in charge of the investigation as a “strong
-9- excuse” for a seven-month period of delay. Barker, 407 U.S. at 533-34, 92 S. Ct.
at 2194. While the circuit court subjected Bradley to multiple continuances of his
trial date prior to his motion, KRS 500.110 only contemplates continuances made
after the statute’s invocation which cause a defendant to wait for trial for more than
180 days. We therefore cannot say the circuit court deprived Bradley of his
statutory right to a speedy trial.
As for Bradley’s constitutional right to a speedy trial, “[w]e analyze 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, 92 S. Ct. 2182). These factors are: “(1) length of the delay; (2) reason
for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4)
prejudice to the defendant.” Tamme v. Commonwealth, 973 S.W.2d 13, 22 (Ky.
1998) (citing Barker, 407 U.S. 514, 92 S. Ct. 2182). “We regard none of the four
factors . . . as either a necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial.” Barker, 407 U.S. at 533, 92 S. Ct. at 2193.
“Rather, they are related factors and must be considered together with such other
circumstances as may be relevant.” Id.
First, for a defendant to be deprived of his speedy trial right, he must
have experienced a delay of such a length that the delay was “presumptively
-10- prejudicial.” Dunaway, 60 S.W.3d at 569 (citing Barker, 407 U.S. at 530, 92 S. Ct.
at 2192). Presumptively prejudicial delay is found by balancing the complexity of
the charges against the delay; “the delay that can be tolerated for an ordinary street
crime is considerably less than for a serious, complex conspiracy charge.” Id.
(quoting Barker, 407 U.S. at 531, 92 S. Ct. at 2192).
In Dunaway, Dunaway was charged with three counts of first-degree
robbery and one count of being a persistent felony offender. Id. The Kentucky
Supreme Court considered these charges to be “serious and of moderate
complexity.” Id. When the Kentucky Supreme Court weighed the seriousness and
complexity of the charges against Dunaway’s thirteen and one-half month delay, it
determined the delay was presumptively prejudicial. Id. In Goben v.
Commonwealth, a defendant’s multiple drug possession, drug trafficking, drug
manufacture, and felon in possession of a firearm charges, when weighed against a
five-year delay, “easily qualifie[d] as presumptively prejudicial[.]” 503 S.W.3d
890, 898, 905 (Ky. 2016).
Both of Bradley’s underlying cases experienced long delays: fifty-
three months and seventeen days for the 2018 arrest, and fifty months and twenty-
seven days for the 2019 arrest. A delay of over four years is plainly presumptively
prejudicial. As such, we must “inquire further as to who was responsible for the
delay – [Bradley], the Commonwealth or, as is often the case, both.” Id. at 905.
-11- When examining the reasons offered for delay under the second
Barker factor, “different weights should be assigned to different reasons.” Barker,
407 U.S. at 531, 92 S. Ct. at 2192. The government’s deliberate efforts to impede
the defense are “weighed heavily” against the prosecution. Id. Neutral reasons for
delay can also exist, which include negligence or an overburdened court; though
these reasons are neutral and less weight is applied to them, “the ultimate
responsibility for such circumstances must rest with the government rather than
with the defendant.” Id. “[A] valid reason, such as a missing witness, should serve
to justify appropriate delay.” Id. In short, this examination requires us to
determine “whether the government or the criminal defendant is more to blame for
[the] delay[.]” Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 2690,
120 L. Ed. 2d 520 (1992) (citing Barker, 407 U.S. at 530, 92 S. Ct. at 2192).
In the analogous Henderson v. Commonwealth, though a fifty-six-
month delay was “clearly presumptively prejudicial,” the Kentucky Supreme Court
determined Henderson’s own actions – including multiple pro se motions and his
insistence on a new attorney – constituted most of the delay in bringing his case to
trial. 563 S.W.3d 651, 664 (Ky. 2018). On balance, Henderson’s speedy trial right
was not violated, despite the trial court’s failure to rule on pending suppression
motions. Id.
-12- In Bradley’s case, much of the delay he experienced was a result of
his own pretrial motions. As the Commonwealth notes, Bradley filed multiple
motions on his own behalf between 2018 and 2022. The circuit court granted
continuances after each, apparently to allow it to evaluate Bradley’s motions prior
to trial. The other sources of delay included scheduling complications with the
circuit court due to COVID, which is a neutral reason for delay and weighs slightly
against the government. Additionally, the Commonwealth Attorney’s serious
injury, which we already determined to be good cause for delay, also weighs
slightly against the government. However, as in Henderson, we believe the bulk of
the delay in this case resulted from Bradley’s multiple pretrial motions.
It is clear Bradley asserted his right to a speedy trial – the third Barker
factor. He did so first on August 9, 2021, when he filed his motion for speedy trial.
Bradley again asserted this right as a component of his February 14, 2022 motion
to dismiss. Those asserting their right to a speedy trial must do so “vigorously.”
Stacy v. Commonwealth, 396 S.W.3d 787, 798 (Ky. 2013). Bradley asserted his
right to a speedy trial and continued to do so until entering his plea. However,
Bradley apparently never objected to the circuit court’s repeated continuances, and
one continuance was granted to accommodate his desire to be present at a pretrial
conference. Though we believe Bradley sincerely and somewhat vigorously
asserted his right to a speedy trial, a defendant’s assertion of this right must be
-13- viewed in the context of his other conduct. Dunaway, 60 S.W.3d at 571 (citations
omitted). While we find Bradley’s assertion weighs in his favor, it does not weigh
heavily.
As Barker notes, the fourth factor, prejudice, “should be assessed in
the light of the interests of defendants which the speedy trial right was designed to
protect.” 407 U.S. at 532, 92 S. Ct. at 2193. Barker identifies three of these
interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety
and concern of the accused; and (iii) to limit the possibility that the defense will be
impaired.” Id. (citations omitted). “Of these, the most serious is the last, because
the inability of a defendant adequately to prepare his case skews the fairness of the
entire system.” Id.
As the Commonwealth notes and as the trial court found, Bradley was
incarcerated for reasons unrelated to the charges in the instant case. On the night
Reece died, Bradley was arrested for a parole violation. His parole was revoked,
and he returned to state custody. Accordingly, Bradley’s incarceration does not
constitute oppressive pretrial incarceration. As to the second interest, though
Bradley’s brief says the pendency of his cases caused him anxiety, Bradley
acknowledged before the circuit court he suffered from anxiety and depression
prior to these underlying charges. Additionally, “speculative and generic claims
are insufficient to support a claim of prejudice.” Dickerson, 278 S.W.3d at 152.
-14- Bradley’s brief does not demonstrate his anxiety or concern with sufficient
particularity. Nor can we say Bradley’s defense was impaired by the circuit
court’s delay. He has not shown that his delay led to spoliation of evidence,
caused witnesses to become unavailable, or otherwise hindered him in defending
against his charges.
On balance, the four Barker factors weigh against concluding Bradley
was deprived of his speedy trial right. Though the lengthy delay was
presumptively prejudicial, a sizable portion of the delay resulted from Bradley’s
own motions. Though the Commonwealth’s Attorney’s injury and difficulties with
COVID weigh in favor of Bradley, these are outweighed by Bradley’s pretrial
motions and their resultant continuances. Further, though Bradley did
continuously assert his speedy trial right beginning in August of 2021, Bradley
never objected to the circuit court’s continuances made prior to the speedy trial
motion. And, upon examination of the circumstances of this case, Bradley has not
demonstrated prejudice of such a degree that it would outweigh the other Barker
considerations. For these reasons, we hold Bradley was not deprived of his right to
a speedy trial.
III. Good Samaritan Statute
Bradley argues the circuit court erred in denying his motion pursuant
to the Good Samaritan statute, KRS 218A.133. He argues this statute exempts him
-15- from prosecution for the drug trafficking charge he received following the death of
Tessa Reece.
As relevant to this appeal, KRS 218A.133 provides:
(2) A person shall not be charged with or prosecuted for a criminal offense prohibiting the possession of a controlled substance or the possession of drug paraphernalia . . . if:
(a) In good faith, medical assistance with a drug overdose is sought from a public safety answering point, emergency medical services, a law enforcement officer, or a health practitioner because the person:
1. Requests emergency medical assistance for himself or herself or another person;
2. Acts in concert with another person who requests emergency medical assistance; or
3. Appears to be in need of emergency medical assistance and is the individual for whom the request was made;
(b) The person remains with, or is, the individual who appears to be experiencing a drug overdose until the requested assistance is provided; and
(c) The evidence for the charge or prosecution is obtained as a result of the drug overdose and the need for medical assistance.
KRS 218A.133(2). The statute defines “drug overdose” to include “death which
reasonably appears to be the result of consumption or use of a controlled
substance,” and defines “good faith” to exclude “seeking medical assistance during
-16- the course of the execution of an arrest warrant, or search warrant, or a lawful
search.” KRS 218A.133(1)(a)-(b). Important to this case, the statute also
provides: “The provisions of subsection (2) of this section shall not extend to the
investigation and prosecution of any other crimes committed by a person who
otherwise qualifies under this section.” KRS 218A.133(3).
We decline Bradley’s invitation to interpret this statute to exempt his
drug trafficking charge from prosecution. The Court is instructed that “[a]ll
statutes of this state shall be liberally construed with a view to promote their
objects and carry out the intent of the legislature[.]” KRS 446.080(1). However,
“where the language of a statute is clear and unambiguous on its face, we are not
free to construe it otherwise even though such construction might be more in
keeping with the statute’s apparent purpose.” MPM Fin. Grp., Inc. v. Morton, 289
S.W.3d 193, 197 (Ky. 2009) (citing Whittaker v. McClure, 891 S.W.2d 80, 83 (Ky.
1995)). Simply put, KRS 218A.133 clearly contemplates the offenses of
possession of drugs and drug paraphernalia and does not contemplate other
offenses where such possession is incidental to the offense. This is particularly so
in light of 218A.133(3) explicitly prohibiting the statute’s application to crimes
other than drug or drug paraphernalia possession.
We confronted similar circumstances in Commonwealth v. Kenley,
where Kenley, an inmate, was indicted on charges of first-degree promoting
-17- contraband after fentanyl was discovered on her person while Kenley was
overdosing. 516 S.W.3d 362, 363 (Ky. App. 2017). Kenley obtained a dismissal
of this charge based on application of KRS 218A.133, and the Commonwealth
appealed. Id. at 364. We reversed because KRS Chapter 218A unambiguously did
not include first-degree promoting contraband within its scope. Id. at 365. We
noted the statute prohibiting promotion of contraband – KRS 520.050 – prohibits,
among other actions, possession of dangerous contraband and, though contraband
could include drugs, KRS 520.050 does not directly criminalize possession of
drugs. Id. at 365.
Additionally, we determined KRS 520.050 “is not a statute aimed at
criminalizing mere possession of drugs.” Id. Rather, “the First-Degree Promoting
Contraband statute on its face evidences an intent by the General Assembly to
combat the harm created by any dangerous contraband” including drug markets
inside prisons and violence and intimidation resulting therefrom. Id. Nor were we
convinced application of KRS 218A.133 to KRS 520.050 fulfilled the public
policy objectives of combating the heroin epidemic and rehabilitating drug users;
to the contrary, Kenley’s drug possession “endangered those who worked and
resided at the detention facility” and “perpetuated an ongoing and serious problem”
inside our detention facilities. Id. at 366.
-18- We do not believe Bradley’s case is a closer call than Kenley. The
plain language of KRS 218A.1412 – Kentucky’s statute prohibiting trafficking in
controlled substances in the first degree – does not directly include possession of
drugs as an element of the offense. See KRS 218A.1412. Rather, “[a] person is
guilty of trafficking in a controlled substance in the first degree when he or she
knowingly and unlawfully traffics in” a series of specified quantities of certain
drugs. KRS 218A.1412(1). The words “possess,” “possession,” or any variant
thereof do not appear in the statute, nor do any synonymous terms.
However, trafficking is defined as relevant elsewhere in Chapter 218A
as follows: “to manufacture, distribute, dispense, sell, transfer, or possess with
intent to manufacture, distribute, dispense, or sell a controlled substance[.]” KRS
218A.010(56). This is directly analogous to our discussion of KRS 520.050 in
Kenley – though trafficking under KRS 218A.1412 could include possession of
controlled substances, the statute does not directly criminalize drug possession.
Nor can we say exemption of drug trafficking would serve the public policy
purpose of combating the heroin epidemic. As should be abundantly clear, drug
trafficking activity directly exacerbates Kentucky’s struggle with drug abuse. For
these reasons, KRS 218A.1412 falls under the category of crimes for which an
individual could still be indicted per KRS 218A.133(3) and, therefore, the
-19- circumstances of Bradley’s drug trafficking charge do not exempt him from
prosecution.
CONCLUSION
Based on the foregoing, we affirm the Warren Circuit Court’s May
25, 2022 Judgment and Sentence on Plea of Guilty.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Adam Meyer Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Harrison Gray Kilgore Assistant Attorney General Frankfort, Kentucky
-20-