Handle v. Commonwealth
| Decision Date | 19 December 2013 |
| Docket Number | 2012-SC-000374-MR |
| Parties | MICHAEL HANDLE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM BRECKINRIDGE CIRCUIT COURT
A Breckenridge County jury found Appellant, Michael Handle, guilty of kidnapping and second-degree assault. Appellant was sentenced to twenty years' imprisonment for kidnapping and ten years' imprisonment for second-degree assault, to run consecutively for the maximum sentence. He now appeals as a matter of right, Ky. Const. §110(2)(b), alleging that: 1) the Commonwealth should be bound by the terms of the plea agreement, 2) he was entitled to a directed verdict for the kidnapping charge, 3) he was entitled to an instruction on the lesser-included offense of second-degree unlawful imprisonment, 4) he suffered undue prejudice when the jury instructions listed elements not included in the indictment, 5) he was denied his right to present a complete defense when the court denied his motion to compel social media evidence, 6) the trial court erred in admitting improper penalty phase evidence,and 7) he suffered undue prejudice when the Commonwealth made speculative comments regarding his parole eligibility. For the reasons that follow, we affirm.
Appellant shared a home with his girlfriend, Tia Hager,1 and their three-month-old son, Patrick. According to Hager, on February 11, 2011, Appellant became enraged because there were dirty dishes in the sink, and began yelling "stupid bitch, do the dishes," and calling her a "piece of shit." Hager further testified that at this point Appellant tied her up in various positions, shot her at point-blank range with a paintball gun, and smacked her across the face with a machete.
Hager said that Appellant would untie her to feed their baby, and that he threatened to harm her entire family if she tried to escape. This continued for three days, and when Appellant finally left the house, Hager called her uncle to come and get her. Hager and her mother went to the office of the Hardin County Attorney. There, Trooper Brad Riley photographed Hager's injuries, including numerous circular bruises, several flat bruises, and ligature marks around her wrists.
Trooper Riley went to Appellant's residence, where Appellant admitted to repeatedly shooting Hager with a paint ball gun. Appellant was taken to theBreckenridge County Detention Center, and while there he had over seventy incident reports logged against him.
A Breckenridge Grand Jury indicted Appellant for kidnapping, second-degree assault, and first-degree wanton endangerment. The Commonwealth offered Appellant a plea bargain, to which he eventually responded with a counteroffer. The Commonwealth rejected Appellant's counteroffer, withdrew the original offer, and proceeded to trial.
At trial, following the presentation of all the evidence, Appellant made a motion for directed verdict, which the trial judge denied. The jury eventually returned a verdict finding Appellant guilty of kidnapping and second-degree assault, but not guilty of first-degree wanton endangerment. For these crimes, Appellant received the maximum sentence of thirty years' imprisonment.
Appellant's first argument is that the Commonwealth should have been bound by the terms of the offered plea agreement. Specifically, Appellant alleges that because his counteroffer did not alter the material terms of the plea agreement, the Commonwealth should be bound by it. It is within the discretion of the trial court to accept or reject a guilty plea. RCr 8.08. Therefore, we will review the trial court's denial of Appellant's motion to enforce the alleged plea agreement for an abuse of discretion. If a trial court determines not to accept a defendant's guilty plea, this Court will not disturb such, unless it is clear that there has been an abuse of discretion. Skinner v.Commonwealth, Ky., 864 S.W.2d 290, 294 (1993). "The test of abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Here there is no evidence that the trial court abused its discretion in rejecting the alleged plea agreement.
Prior to trial, the Commonwealth offered Appellant eight years' imprisonment on the second-degree assault charge and five years' imprisonment on the first-degree wanton endangerment charge, to be served concurrently, in exchange for his guilty plea. As part of the agreement, the Commonwealth agreed to drop the kidnapping charge altogether. However, Appellant also had to agree to transfer title of the truck he and Hager shared solely to her.
After several hours of consultation with counsel, Appellant sent the Commonwealth a response requesting that the terms of the plea agreement be altered to avoid forfeiture of his truck and allow for his release pending final sentencing. However, the Commonwealth rejected Appellant's response, claiming that it was a counteroffer.
On the morning of trial, Appellant sought to enforce the plea agreement, noting that he was now willing to agree to all the terms proposed by the Commonwealth. The Commonwealth, however, argued that the plea was a "limited time offer" and that Appellant had voided that offer by replying with counter terms. Appellant stated that he had always agreed to the materialterms of the contract and asked that the plea be enforced, but his request was denied.
"Plea agreements are often bargained-for exchanges, and are governed by basic contract law." Commonwealth v. Morseman, 379 S.W.3d 144, 149 (Ky. 2012). Under basic contract law, "[a]n acceptance must be unequivocal in order to create a contract." Venters v. Stewart, 261 S.W.2d 444, 446 (Ky. 1953). An acceptance which includes additional terms, or alters the terms of the original offer, constitutes a counteroffer, and not an acceptance. Gen. Motors Corp. v. Herald, 833 S.W.2d 804, 807 (Ky. 1992) (Leibson,J., dissenting).
In the present case, the Commonwealth did make Appellant an offer, but Appellant never accepted it. Instead, Appellant said that he would agree to the original plea only if the Commonwealth would remove the term requiring him to relinquish title to his truck. By stating that he would agree to the original plea if and only if material terms were removed, Appellant was making a counteroffer and not an acceptance. Given that Appellant never actually accepted the terms of the plea agreement, but instead made a counteroffer which the Commonwealth rejected, we cannot say that the trial court abused its discretion in denying his motion.
Appellant next argues that he was entitled to a directed verdict for the charge of kidnapping. Specifically, Appellant alleges that he was entitled to a directed verdict because the kidnapping charge merged with that of assault.Appellant concedes that this issue is unpreserved, but asks that it be reviewed for palpable error. RCr 10.26; KRE 103.
"A finding of palpable error must involve prejudice more egregious than that occurring in reversible error, . . . and the error must have resulted in 'manifest injustice."' Ernst v. Commonwealth, 160 S.W.3d 744, 758 (Ky. 2005) [citing Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky. 1997)). "[P]alpable error . . . [is] composed of two elements: obviousness and seriousness, the latter of which is present when a failure to notice and correct such an error would seriously affect the fairness, integrity, and public reputation of the judicial proceeding." Id. (internal citations and quotation marks omitted).
Appellant claims that he suffered a manifest injustice when the Commonwealth overcharged him by adding the kidnapping charge on top of the assault charge, which already includes the elements of restraint and/or movement of the victim. In support of his claim, Appellant relies upon the Kidnapping Exemption Statute as set forth in KRS 509.050:
A person may not be convicted of unlawful imprisonment in the first degree, unlawful imprisonment in the second degree, or kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim's liberty occurs immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose. The exemption provided by this section is not applicable to a charge of kidnapping that arises from an interference with another's liberty that occurs incidental to the commission of a criminal escape.
Appellant further points this Court to the Kentucky Crime Commission's Commentary to KRS 509.050, which explains that Kentucky's kidnappingexemption statute "seeks to express a policy against the use of kidnapping to impose sanctions upon conduct which involved a movement or confinement (of another person) that has no criminological significance to the evil toward which kidnapping is directed."
In order for the exemption to apply: (1) "the...
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