Com. v. Hillhaven Corp., 83-CA-2814-DG

• Citation: 687 S.W.2d 545
• Decision Date: 28 December 1984
• Docket Number: No. 83-CA-2814-DG,83-CA-2814-DG
• Parties: COMMONWEALTH of Kentucky, Appellant, v. The HILLHAVEN CORPORATION, Appellee.
• Court: Court of Appeals of Kentucky

Page 545

687 S.W.2d 545

COMMONWEALTH of Kentucky, Appellant, v. The HILLHAVEN CORPORATION, Appellee.

No. 83-CA-2814-DG

Court of Appeals of Kentucky.

Dec. 28, 1984.

Discretionary Review Denied and Opinion

Ordered Published by

Supreme Court

April 24, 1985.

David L. Armstrong, Atty. Gen., Roy Gray, Asst. Atty. Gen., Richard E. Plymale, Deputy Asst. Atty. Gen., Frankfort, Raymond Naber, Jr., Asst. County Atty., Louisville, for appellant.

John L. Smith, Barnett & Alagia, Bradley R. Hume, Louisville, Robert Fabrikant, Washington, D.C., for appellee.

Before CLAYTON, HOWERTON and REYNOLDS, JJ.

CLAYTON, Judge.

On December 22, 1982, the present appeal began as a complaint filed in the Jefferson District Court by the Medicaid Fraud Control Unit of the Kentucky Attorney General's Office. The Attorney General charges by that complaint that the appellee, Hillhaven Corporation, violated KRS 508.070 and KRS 502.050 relating to wanton endangerment. The affidavit accompanying the complaint accuses employees of Hillhaven, a 180-bed nursing home located in Louisville, Kentucky, of engaging in conduct wantonly endangering Viola Fitzgerald by their failure to provide necessary and proper care to her while she was a patient. Listed as examples of this conduct are the failure to provide adequate skin care, nutrition, sanitary care, laboratory work, and medications.

In response to these charges, Hillhaven entered a plea of not guilty on January 21, 1983. The corporation later moved the Jefferson District Court at pretrial hearing to accept a plea of nolo contendere and acknowledged its willingness to pay the maximum fine of $10,000. On April 22, 1983, the district court entered an order accepting the corporation's plea. The sole authority cited by the district court in support of this power is an opinion letter of the Attorney General's Office, 76-174, stating in part, "Nor has that plea [nolo contendere] been utilized in Kentucky as a frequent method of disposition."

The Commonwealth appealed the order of the district court to Jefferson Circuit Court on June 1, 1983. The circuit court entered on November 30, 1983, its judgment supporting the order. Cited in the judgment as authority for affirmation is KRS 532.025(1)(a) which directs the court to consider a defendant's prior pleas of nolo contendere during a presentence hearing involving the death penalty. The Court then comments that,

"Obviously, the directive to consider prior nolo contendere pleas does not designate the court of origin of the pleas, but does at least indicate that such pleas are to be considered, and therefore are not totally unconsidered in Kentucky criminal law."

Based solely upon this reasoning the circuit court found there to be no abuse of discretion. Appeal was subsequently taken to this court.

The Commonwealth founds its argument in support of reversal in the Kentucky Rules of Criminal Procedure (RCr). The state reads rules RCr 8.08 and RCr 8.12 as effectively prohibiting the acceptance of a plea of nolo contendere in a criminal case. In pertinent part, the two rules read,

RCr 8.08 Pleas

A defendant may plead not guilty or guilty. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.

and

RCr 8.12 Pleadings

Pleadings in criminal proceedings shall be the indictment, information, complaint or uniform citation, and the plea of guilty or not guilty. No other plea, demurrer, or motion to quash shall be used, and defenses and objections that before the effective date of these rules could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief.

(our emphasis).

Official commentary to RCr 8.08 adds that the rule is Federal Criminal Rule 11 "with the plea of nolo contendere omitted." As further weight for its position, the state also points out that the Kentucky Supreme Court refused to adopt the 1980 recommendation of the Criminal Rules Revision Committee to amend RCr 8.08 and 8.12 to provide for a plea of nolo contendere. The Commonwealth then concludes its argument by pointing out various flaws in the opinions of the district and circuit court, and by distinguishing Attorney General Opinion 76-174 and KRS 532.025(1)(a).

The appellee corporation goes to no small effort to convince us that the courts of the Commonwealth have, via the common law, the inherent power to accept pleas of nolo contendere, regardless of the criminal rules express prohibition of all pleas other than guilty or not guilty. Reasoning that section 233 of the Kentucky Constitution adopts the law of Virginia as of 1792, including the power of Virginia Courts to enter nolo contendere pleas, the corporation concludes that Kentucky Courts, therefore, must have the same inherent power. With respect to RCr 8.08 and 8.12, the appellee maintains that the two rules do not abrogate this common law power as they are not clearly repugnant to the common law rule nor indicative of legislative intent to overturn it. This is so, the appellee explains, because at common law a plea of nolo contendere was not a plea, but simply a defendant's declaration that he will not contest prosecution. Furthermore, it is argued that the commentary to RCr 1.04 indicates that the rules should be construed to eliminate unjustifiable expense and delay which would supposedly occur were we to reverse. In the final portion of its first argument, Hillhaven refers to the Attorney General's Opinion and statute mentioned above along with three recent Kentucky judicial decisions to demonstrate that Kentucky Courts have been aware of this inherent common law power both before and after adoption of the present rules. The balance of its brief is then devoted to an extended discussion of policy reasons supporting the application of a nolo contendere plea in the present situation.

Having examined in detail the arguments of both parties, we are persuaded that the Commonwealth's position is the more soundly reasoned one. The language of RCr 8.12 as construed according to "common and approved usage of language," KRS 446.080(4), expressly prohibits the use of any pleas except guilty or not guilty. Thus, the rule is clearly repugnant to the supposed common law power of the courts of the Commonwealth to enter pleas of nolo contendere, assuming that such power did at one time exist. As a matter of policy, acceptance of a plea of nolo contendere may well serve a beneficial purpose in the administration of the criminal justice system. However, we do not sit as a policymaking body. Our function in this instance is to construe the rules and the common law, neither of...