Gibson v. Commonwealth
| Decision Date | 17 May 2013 |
| Docket Number | NO. 2012-CA-000313-MR,2012-CA-000313-MR |
| Parties | RUSSELL W. GIBSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM BOURBON CIRCUIT COURT
Late on the evening of October 31, 2009, police in Georgetown, Kentucky, responded to a complaint of a vehicle driving the wrong way down Interstate 75. Shortly after receiving the complaint, an officer spotted a parked vehicle matching the description of the one seen on the interstate. The vehicle's occupant was standing outside of the vehicle. When the officer pulled behind the vehicle, its driver re-entered the car and drove away. The officer gave chase and observed the vehicle cross the centerline of U.S. 460 several times and nearly strike an occupied police vehicle. During the course of the chase, the vehicle crossed from Scott County into Bourbon County. In Bourbon County, the vehicle approached the city of Paris, where it eventually collided with the driver's side of a sport utility vehicle carrying an adult and four children. Two of the latter vehicle's occupants required medical treatment.
Following the collision, authorities identified the driver as Gibson and charged him in Scott County with: Fleeing and Evading Police; Operating a Motor Vehicle Under the Influence, Third-Offense, under Aggravating Circumstances ("DUI"); Wanton Endangerment, First-Degree; Speeding 26 Miles Per Hour Over the Speed Limit; Reckless Driving; and Wanton Endangerment of a Police Officer. Following a preliminary hearing, the trial court bound the case to the grand jury,but found no probable cause for the Speeding charge, as well as the two Wanton Endangerment charges for lack of venue because they occurred in Bourbon County. Despite the preliminary finding that the three above charges occurred in Bourbon County, the Commonwealth presented all of the charges to the Scott County grand jury, who returned indictments on five of the six. The grand jury returned no true bill on the charge of wanton endangerment of a police officer.
On March 1, 2010, Gibson pled guilty pursuant to North Carolina v. Alford to the charges of Fleeing and Evading and DUI. As was noted on the plea form, the charges of wanton endangerment, reckless driving and speeding were dismissed by the Commonwealth. Gibson was sentenced to two years' imprisonment and eventually received parole in July of 2010.
On May 1, 2011, a grand jury sitting in Bourbon County indicted Gibson on five counts of wanton endangerment stemming from his collision with the vehicle carrying the adult and four children during the October 2009 chase which was the subject of the Scott County charges. On November 2, 2011, Gibson filed a Motion to Enforce the Scott County Plea Agreement, arguing that the terms of that agreement precluded the Commonwealth from bringing the wanton endangerment charges in Bourbon County. The trial court denied Gibson's motion, finding that the respective events in Scott and Bourbon Counties were distinct and the Commonwealth could therefore bring charges in Bourbon County which stemmed from conduct in Bourbon County. Following the trial court's ruling, Gibson entered a conditional plea of guilty to the five counts of wantonendangerment and reserved his right to appeal the trial court's denial of his motion. Under the conditional plea, Gibson was denied probation and sentenced to three years' incarceration, suspending the sentence until conclusion of the present appeal which followed.
We first review the trial court's findings of fact under the clearly erroneous standard. Kentucky Rules of Civil Procedure ("CR") 52.01; see also Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982). Thus, we will disturb the trial court's decision only "if it is not supported by substantial evidence, which is evidence sufficient to induce conviction in the mind of a reasonable person." Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky. App. 2002) (). Additionally, we conduct a de novo review of the trial court's application of the law to the established facts to determine whether its decision to deny the motion was correct as a matter of law. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004); Commonwealth v. Brooks, 388 S.W.3d 131 (Ky. App. 2012). We therefore afford no deference to the trial court's application of the law to the present facts. Id.
Kentucky Revised Statutes (KRS) 452.550 states, "[w]here an offense is committed partly in one and partly in another county, or if acts and their effects constituting an offense occur in different counties, the prosecution may be in either county in which any of such acts occurs." Gibson asks this Court to hold that KRS452.550 required all offenses associated with Gibson's conduct that day, including the five counts of wanton endangerment arising in Bourbon County, to be brought in the Scott County prosecution. In doing so, Gibson asks us to assume that wanton endangerment is a crime which can be, or is, part of a continuous course of conduct. However, this Court has held the contrary, and so we must again.
In Hash v. Commonwealth, 883 S.W.2d 892 (Ky. App. 1994), authorities in Tennessee prosecuted Hash for reckless endangerment and DUI following a high-speed chase which began in Kentucky and ended in Tennessee. Following his conviction for these crimes, authorities in Kentucky charged Hash with two counts of wanton endangerment for nearly striking two vehicles while still in Kentucky. Hash argued that Kentucky was precluded from prosecuting its charges because he had already been convicted in Tennessee for the same event. This Court disagreed, stating, Hash, 883 S.W.2d at 894.
Our analysis in Hash proves helpful to the present question regarding KRS 452.550 and the nature of the charge of wanton endangerment. As with the Appellant in Hash, "[t]he fallacy of [Robertson's] argument is that wanton endangerment is not susceptible to the single impulse or act analysis." Hash, 883 S.W.2d at 894. The Bourbon County charges of wanton endangerment were based on Gibson's conduct in Bourbon County when he drove his vehicle into anotherwhich held an adult and four children. The Scott County charge of wanton endangerment was for Gibson's conduct which endangered at least one motorist in that county. Therefore, Gibson's single act of wanton endangerment in Scott County and his five acts of wanton endangerment in Bourbon County are distinguishable events.
Furthermore, because the wanton endangerment charges are distinguishable and cannot be part of a "continuous course of conduct," the charges were neither "committed partly in one and partly in another county," nor did their "effects constituting an offense occur in different counties." Simply put, KRS 452.550 did not require the Bourbon County charges to be brought along with those in Scott County.
In addition to asserting that KRS 452.550 required dismissal of the Bourbon County counts of wanton endangerment, Gibson argues that the Commonwealth was precluded from bringing these counts under the conditions of his plea agreement in Scott County. We disagree. Our Supreme Court has stated that the pre-trial preclusion of future prosecution by a trial court must be necessitated by underlying substantive law and is not valid simply because it is arguably done by order of a court. Gibson v. Commonwealth, 291 S.W.3d 686, 691 (Ky. 2009). Also, "[c]ourts have recognized that accepted plea bargains are binding contracts between the government and defendants." Elmore v. Commonwealth, 236 S.W.3d 623, 626 (Ky. App. 2007) (citation omitted). "In the absence of ambiguity, a written instrument will be enforced strictly according to itsterms." Frear v. P.T.A. Industries, Inc., 103 S.W.3d 100 (Ky. 2003). With these basic tenants of contract law in mind, we briefly examine the four corners of...
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