Released for Publication February 20, 2014.
ON APPEAL FROM JEFFERSON CIRCUIT COURT. HONORABLE SUSAN LYNN SCHULTZ, JUDGE. NO. 11-CR-000501.
FOR APPELLANT: Daniel T. Goyette, Bruce P. Hackett, James David Niehaus, Office of the Louisville Metro Public Defender.
FOR APPELLEE: Jack Conway, Attorney General; Micah Brandon Roberts, Assistant Attorney General.
OPINION OF THE COURT BY JUSTICE CUNNINGHAM. All sitting. All concur.
On November 30, 2010, officers from the Louisville Metro Police Department were staked-out near the location of a robbery believed to have been committed by Appellant, Dejuan Anthony Glenn, and his brother, Damon Glenn. While the officers were observing the area, a tan sedan entered the scene. Based on photographs of the suspects that had been provided to them, the officers identified two of the men in the sedan as Appellant and his brother. The officers then followed the sedan down the street and engaged their emergency lights in an attempt to pull over the vehicle. Upon seeing the lights, the suspects in the sedan took off and a high speed chase ensued. Eventually, all three occupants in the sedan bailed out of the vehicle while it was still moving, causing it to crash into two parked vehicles. The officers continued the hot pursuit on foot, resulting in the immediate apprehension of only one of the vehicle's three occupants--Rondell Basemore. Basemore told police that Appellant and his brother were the other two occupants of the vehicle and that Appellant was the driver. Based on this information, arrest warrants were issued and the two were subsequently apprehended. Appellant was found to be in possession of cocaine at the time of his arrest.
A Jefferson Circuit Court jury found Appellant guilty of one count of first-degree wanton endangerment, one count of first-degree fleeing or evading the police, one count of first-degree illegal possession of a controlled substance (cocaine), and one count of second-degree criminal mischief. On those charges, the jury recommended a total sentence of thirteen years. The jury also found Appellant guilty of being a persistent felony offender (" PFO" ) in the first-degree and then recommended an enhanced sentence of twenty years. The trial court sentenced Appellant in accordance with the jury's recommendation.
Appellant now appeals his conviction and sentence as a matter of right pursuant to the Ky. Const. Section 110(2)(b). Three issues are raised and addressed as follows. The legality of the attempted stop has not been raised on appeal.
Validity of RCr 9.40
Appellant argues that RCr 9.40 is invalid and that the trial court's reliance on the rule requires reversal of the judgment. Specifically, Appellant contends that RCr 9.40, the rule prescribing the number of peremptory challenges in a criminal case, exceeds the authority granted to this Court in § 116 of the Kentucky Constitution.
The Commonwealth urges us not to consider the merits of this claim because Appellant failed to comply with KRS 418.075, which requires that he provide the Attorney General with proper notice when challenging the constitutionality of a statute. Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky. 2008) (" [S]trict compliance with the notification provisions of KRS 418.075 is mandatory . . . even in criminal cases[.]" ). ...