Dickerson v. Com., No. 2008-SC-000074-MR.

Decision Date19 February 2009
Docket NumberNo. 2008-SC-000074-MR.
Citation278 S.W.3d 145
PartiesRobert DICKERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky
Opinion of the Court by Chief Justice MINTON.
I. INTRODUCTION.

Robert Dickerson was indicted on new charges after we vacated his original convictions. We reject Dickerson's claim that these new charges were a result of prosecutorial vindictiveness. We also reject Dickerson's claim that his right to a speedy trial was violated.

II. FACTUAL AND PROCEDURAL HISTORY.

Dickerson was convicted of one count of first-degree sodomy, one count of possession of a handgun by a convicted felon, one count of violating the Sex Offender Registration Act, and of being a second-degree persistent felony offender (PFO II). It is not necessary to recount the lengthy and disturbing facts that led to those convictions. Rather, for purposes of this opinion, we merely state that we reversed Dickerson's convictions in October 2005 because of numerous errors.1

After several continuances on remand, Dickerson eventually pleaded guilty to one count of criminal abuse in the first degree, one count of possession of a handgun by a convicted felon, and one count of possession of a "[long gun]" by a convicted felon.2 Dickerson was sentenced to ten years' imprisonment on the criminal abuse charge and a total of fifteen years' imprisonment on the firearms charges. The sentences were ordered to run consecutively for a total imprisonment term of twenty-five years. Dickerson then filed this appeal as a matter of right.3 We affirm.

III. ANALYSIS.

Dickerson raises two arguments in this appeal. First, he claims his right to a speedy trial was violated on remand. Second, he contends the Commonwealth engaged in prosecutorial vindictiveness when it obtained a new indictment containing new charges after the issuance of our 2005 opinion reversed the original convictions. We disagree with both of Dickerson's arguments.

A. Issues Were Minimally Preserved for Appellate Review.

Before we address the merits of Dickerson's arguments, we must first address the Commonwealth's contention that Dickerson's issues in this appeal are not properly before us because Dickerson did not adequately preserve his appellate rights when he entered his guilty plea. Although the record of the procedures below is not completely clear, we ultimately conclude that Dickerson has preserved his right to bring this appeal.

We agree with the Commonwealth's contention that a valid, unconditional guilty plea may constitute a waiver of many of a defendant's appellate rights.4 And nothing in the final judgments of conviction in question actually reflects that Dickerson's guilty plea was conditional. But the motion to enter guilty plea form contains the handwritten notation "Conditional" at the top.5 Similar handwritten notations appear on the Commonwealth's offer on a plea of guilty and the arraignment order after Dickerson's guilty plea. In fact, at the hearing at which the trial court accepted Dickerson's plea of guilty, there were scant references to the fact that the plea was to be conditional. And Dickerson's counsel only vaguely remarked that the plea was conditional because Dickerson "may, or may not, file an appeal of both of the indictments. He just wants to have something general for later on, and we have agreed to that[,]" to which the trial court simply responded, "OK, sure. OK, well you can appeal the proceeding, and I don't have any problem with that."

The Commonwealth's preservation argument runs contrary to our precedent. In Gabbard v. Commonwealth, a defendant's motion to enter a guilty plea was captioned "Conditional Plea of Guilty but Mentally Ill."6 At sentencing, defense counsel merely stated that he "would simply raise the same objections that I raised prior to the entry of the plea and incorporate all those objections raised by motion and preserved in the conditional plea by reference."7 When the prosecutor indicated he was unclear about which motions defense counsel was referring to, defense counsel stated, "the motions I am referring to are those motions regarding the defendant's competency that were preserved for appellate review; I think there were three of them, preserved for appellate review, in those proceedings."8 When the Commonwealth contended that the issues raised in the appeal were not properly before us because they were inadequately set forth during the trial court proceedings, we held that the issues were sufficiently preserved for our review, although these issues were "inartfully done," because "the Commonwealth and the trial court were aware of the objections raised prior to the entry of the conditional plea."9 By contrast, we have refused to consider a claim presented in an appeal from a conditional guilty plea if that issue had not been brought to the trial court's attention and was not mentioned in the conditional guilty plea.10

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.

In the case at hand, before the day he entered his conditional guilty plea, Dickerson had submitted a motion to dismiss the indictments with prejudice because of alleged prosecutorial vindictiveness and a separate motion for a speedy trial. And the trial court was aware, or should have been aware, of the issues raised in this appeal at the time it accepted Dickerson's conditional plea. So we hold that Dickerson has sufficiently preserved for our review the issues in this appeal. It would have been far better practice, of course, if the issues upon which Dickerson's guilty plea were conditioned had been identified in the record, instead of Dickerson's counsel's vague statement that Dickerson's plea was conditional merely because Dickerson wanted to have "something general" upon which to base an appeal. Had the issues raised in Dickerson's appeal not been expressly raised in the circuit court, we would not have considered them on appeal. To avoid these types of situations in the future, we urge the bench and bar of this Commonwealth to specify in the record in conditional guilty pleas the precise issues being reserved for appellate purposes. Such careful preservation should eliminate uncertainty, which would inure to the benefit of everyone involved.

B. Dickerson's Right to a Speedy Trial Was Not Violated.

As stated before, we reversed Dickerson's original convictions in October 2005. Dickerson entered his guilty plea in September 2007, a period of almost two years. Dickerson contends that the delay violated his right to a speedy trial. We disagree.

We consider four factors when determining whether a defendant's right to a speedy trial has been violated: (1) length of delay, (2) reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice to the defendant.11 And the Commonwealth concedes that Dickerson timely and adequately asserted his right to a speedy trial. So our analysis will focus on the remaining three factors.

1. Length of Delay.

Our opinion reversing the initial convictions was issued in October 2005. So the speedy trial clock did not begin to tick until that date.12 Dickerson pleaded guilty in September 2007. Thus, the total length at issue is approximately twenty-three months.

Although there is no bright line rule for how long a delay must be in order to be presumptively prejudicial, we note that we have found presumptively prejudicial delays shorter than the twenty-three month delay in this case.13 Although our speedy trial analysis does not end here, we find that the delay in this case is presumptively prejudicial.14

2. Reason for the Delay.

In order to ascertain the reasons for the numerous delays in this case, we must set forth the facts underlying the delays that are ascertainable from the record. In December 2005, shortly after our order reversing Dickerson's convictions, the charges contained in at least one of Dickerson's previous indictments, 01-CR-00015, was set for trial in May 2006. In April 2006, Dickerson's counsel filed a motion for a continuance. That motion stated that a continuance was appropriate because Dickerson's counsel needed to review "volumes of documents" and "all physical evidence pertaining to this case[,]" and because "[c]ounsel does not have the discovery provided to prior defense counsels . . . ." In response, the trial court postponed the trial to August 2006.

In a July 2006 hearing, defense counsel stated that he was not ready for trial because he had not received the grand jury tapes he had requested. The Commonwealth responded that there had been a flood that had damaged the tapes but that his office was trying to get the tapes to defense counsel. In response, the trial court again postponed the trial to November 2006.15

After that new trial date was set, defense counsel requested a hearing on a discovery matter. Meanwhile, despite the fact that he was represented by counsel, Dickerson filed several lengthy motions on his own, including a motion to dismiss the charges and a motion for a continuance, which appeared to be...

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