Kenerly v. State

• Court: Georgia Court of Appeals
• Writing for the Court: PHIPPS, Chief Judge.
• Citation: Kenerly v. State, 750 S.E.2d 822, 325 Ga. App. 412 (Ga. App. 2013)
• Decision Date: 22 November 2013
• Docket Number: No. A13A1370.,A13A1370.
• Parties: KENERLY v. The STATE.

325 Ga.App. 412

750 S.E.2d 822

KENERLY

v.The STATE.

No. A13A1370.

Court of Appeals of Georgia.

Nov. 22, 2013.

Reconsideration Denied Dec. 11, 2013.

Anderson, Tate & Carr, Trinity M. Hundredmark, Patrick J. McDonough, Duluth, for Appellant.

Daniel J. Porter, Dist. Atty., Tracie H. Cason, Asst. Dist. Atty., for Appellee.

PHIPPS, Chief Judge.

We granted Kevin Kenerly's application for interlocutory review of the trial court's order denying his motion to quash a second indictment issued against him on the same charges asserted in an earlier indictment. Kenerly asserts that a pending appeal of the first indictment deprived the trial court of jurisdiction to accept return of the second indictment. He also contests the trial court's denial of his plea in bar based on the expiration of the statutes of limitation. For the reasons that follow, we affirm.

Kenerly, a former member of the Gwinnett County Board of Commissioners ("BOC"), was first indicted on October 11, 2010. On October 22, 2010, the trial court denied Kenerly's objection challenging the jurisdiction and authority of a Gwinnett County special purpose grand jury to return an indictment against him. On November 19, 2010, Kenerly filed a Notice of Appeal from the trial court's October 22, 2010 order. On July 6, 2011, this court reversed the trial court's October 22, 2010 order, and held that a special purpose grand jury is not authorized to return a criminal indictment.¹ The state filed a motion for reconsideration, which this court denied on July 27, 2011. On August 1, 2011, the state filed in this court a Notice of Intent to Apply for Certiorari ("NOI"). On August 11, 2011, the state filed in the Supreme Court of Georgia a Petition for Writ of Certiorari; the Supreme Court on March 5, 2012 denied the petition and issued its remittitur. This court issued its remittitur on March 21, 2012.

On August 4, 2011, three days after the state had filed its NOI, the state obtained from a regularly-impaneled grand jury a second indictment against Kenerly. The second indictment contained the same three charges as the charges contained in the first indictment. Both indictments alleged that Kenerly had committed bribery² (Count 1) and two counts of (failure to make) disclosure of financial interest (Counts 2 and 3).³

1. Kenerly's assertion that the pending appeal of the first indictment deprived the trial court of jurisdiction to accept return of the second indictment is without merit. In the trial court, Kenerly moved to quash the second indictment, arguing that

when [he] filed his Notice of Appeal [regarding the first indictment], this [trial court] was divested or deprived of any and all jurisdiction. As such, the Second Indictment, which incidentally charged [him] with the same offenses as the first quashed indictment, against [him] is invalid as it was returned by this [trial court] at a time when it lacked jurisdiction.

"Because the issue before us is a question of law, we do not owe deference to the trial court's ruling, and we apply the ‘plain legal error’ standard of review."⁴

The trial court, in its order denying Kenerly's motion, quoted this court's prior decisions in Porter v. State⁵ and Roberts v. State:⁶

Not every action by a trial court is barred during the pendency of an appeal. Rather the trial court cannot execute a sentence or entertain proceedings which either require a ruling on the matters on appeal or which directly or indirectly affect such matters.⁷ The loss of jurisdiction is limited only to those proceedings which either require a ruling on the matters on appeal or directly or indirectly affect such matter. ⁸

The trial court found that the cases Kenerly cited in support of his motion involved post-judgment trial court actions that were "within the bounds of the issues being appealed." The court found that that was not the case here, "as the appeal that led to the ruling [regarding the first indictment] was concerned solely with the statutory authority of a special purpose grand jury," and the trial court's actions in regard to the second indictment were "accepting an indictment from the regularly convened grand jury and causing the same to [be] filed by the Clerk of Court."⁹ The trial court noted that "[h]ad the State waited for the remittitur to return from the Supreme Court, the statute of limitations would have run on Counts 2 and 3." The trial court concluded that the return of the second indictment "was not a matter which required ruling on the matters on appeal, nor did it directly or indirectly affect such matters."

On appeal, Kenerly continues to assert that the pending appeal of the first indictment deprived the trial court of jurisdiction to accept return of the second indictment. Recently, this court, in Brown v. State,¹⁰ addressed the same jurisdictional argument Kenerly raises.¹¹ In Brown, this court relied on Roberts¹² and recognized that the filing of a notice of appeal divests the trial court of jurisdiction in some matters,¹³ and held: "The real issue ... is whether the return of the [s]econd [i]ndictment required the trial court to issue a ruling on the exact matter being considered in the [f]irst [a]ppeal, or whether it directly or indirectly affected such matters."¹⁴ In Brown, the court held that it did not, as the first appeal concerned the validity of the first indictment (whether the first indictment was read in open court as required under Georgia law), whereas the second indictment initiated a completely separate prosecution on the same charges and no contention was raised that the second indictment "suffered from the same infirmity as the first indictment."¹⁵

Indeed, in Roberts, this court rejected a defendant's argument that a second indictment for the same offenses could not be brought against him when an appeal on the first indictment was pending on the issue of the trial court's denial of his motion for acquittal on statutory speedy trial grounds.¹⁶ The state had informed the trial court that it re-indicted the defendant because the statute of limitation was not tolled while the defendant's appeal concerning the first indictment was pending.¹⁷ And, as in this case, the state did not intend to try the defendant on the second indictment while the appeal concerning the first indictment was pending.¹⁸ We agree with the trial court that it did not lose jurisdiction to accept the return of the second indictment. The first appeal concerned the issue of whether the first indictment was returned by an authorized body (a special purpose grand jury).¹⁹ The second indictment initiated a completely separate prosecution on the same charges, but no contention was raised that the second indictment "suffered from the same infirmity as the [f]irst [i]ndictment."²⁰ Thus, the trial court's acceptance of the second indictment did not require a ruling on the matter on appeal or directly or indirectly affect such matter.²¹

2. Kenerly contends that the trial court erred in denying his plea in bar because Counts 1 and 2 of the second indictment were barred by the applicable statutes of limitation, and said applicable statutes of limitation had not been tolled pursuant to OCGA § 17–3–2.²² We disagree.

The appellate standard of review for a plea in bar asserting a statute of limitation defense is a de novo review of the issue of laws. As this ruling involves a mixed question of fact and law, we accept the trial court's findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts.²³

The second indictment was filed on August 4, 2011. Count 1 pertinently alleged that Kenerly committed bribery²⁴ (a felony), in that he:

beginning on 6th day of March, 2007 and having twenty (20) periodic payments ending on the 3rd day of October, 2008, however the payments were unknown to the State until on or about February 4, 2010, did being an elected public official, to wit: a Gwinnett County Commissioner, directly or indirectly receive, accept or agree to receive a thing of value, to wit twenty (20) payments of fifty thousand ($50,000.00) by inducing the reasonable belief that the giving of the thing would influence his performance of an official action, to wit: the payment was suggested and accepted to induce the belief that said Kevin Kenerly would arrange for the purchase of real property by the Gwinnett County Board of Commissioners to the benefit of David Jenkins....

Count 2 of the second indictment alleged that Kenerly committed the offense of (failure to make) disclosure of financial interest (a misdemeanor),²⁵ in that he

on the 3rd day of May, 2005, however the financial interest was unknown to the State until on or about February 4, 2010, did being a local government official to wit: a Gwinnett County Commissioner, who knew or reasonably should have known he had a financial interest in a business entity, to wit: a partnership with D.G. Jenkins Development Corporation which had a property interest in real property to wit: that property described in Gwinnett County zoning case number RZC–05–019, affected by a rezoning action which that official's local government would have a duty to consider, fail to disclose the nature and extent of such interest, in writing, to the local governing authority of the local government in which the local official is a member.

On May 14, 2012, Kenerly filed a plea in bar, asserting that the applicable statutes of limitation barred prosecution, and were not tolled by OCGA § 17–3–2(2), because "[a]fter [Kenerly] receives supplemental and complete discovery, he will demonstrate at the evidentiary hearing that a multitude of alleged victims, persons of interest, and/or the prosecution were aware of both the alleged offense[s] and of the alleged offender no later than May 24, 2007." At the hearing on Kenerly's plea in bar, the parties submitted to the trial court stipulations of facts, which the trial court considered, together with argument of counsel, in...