APPEAL FROM JEFFERSON CIRCUIT COURT. HONORABLE OLU A. STEVENS, JUDGE. ACTION NO. 11-CR-000224 & 12-CR-001963.
BRIEFS FOR APPELLANT: J. David Niehaus, Office of the Louisville Metro, Public Defender, Louisville, Kentucky.
BRIEF FOR APPELLEE: Jack Conway, Attorney General of Kentucky, Susan Roncarti Lenz, Assistant Attorney General, Frankfort, Kentucky.
BEFORE: CAPERTON, TAYLOR AND THOMPSON, JUDGES. CAPERTON, JUDGE, CONCURS. TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
Following a jury trial, Robert Prickett was found guilty of criminal facilitation to manufacturing methamphetamine, fourth-degree controlled substances endangerment to a child, illegal use or possession of drug paraphernalia, and being a second-degree persistent felony offender. He was sentenced in accordance with the jury's recommendation to an enhanced sentence of fifteen-years' imprisonment. On appeal, Prickett contends KRS 29A.290(2), requiring the Kentucky Supreme Court to establish the number of peremptory challenges to which parties are entitled is an unconstitutional delegation of legislative authority in violation of Section 28 of the Kentucky Constitution. The Commonwealth contends because Prickett did not present the issue to the trial court and the Attorney General was not notified of the constitutional challenge before the entry of final judgment, he is precluded from presenting the issue on appeal. Based on controlling precedent, we agree with the Commonwealth and affirm.
Kentucky Rules of Civil Procedure (CR) 24.03 states: " When the constitutionality of an act of the General Assembly affecting the public interest is drawn into question in any action, the movant shall serve a copy of the pleading, motion or other paper first raising the challenge upon the Attorney General." KRS 418.075(1) provides:
In any proceeding which involves the validity of a statute, the Attorney General of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heard, and if the ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the petition and be entitled to be heard.
Despite that the notification rule appears " in an awkward place in the civil rules and in a statute concerning declaratory judgments[,]" notification to the Attorney General is required whenever the constitutionality of a statute is challenged. Brashars v. Commonwealth, 25 S.W.3d 58, 65 (Ky. 2000). The notice requirement applies to " criminal, as well as civil, actions." Jacobs v. Commonwealth, 947 S.W.2d 416, 419, 44 3 Ky. L. Summary 3 (Ky.App. 1997).
In Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky. 2008), the Court held " strict compliance with the notification provisions of KRS 418.075 is mandatory[.]" It noted it consistently " refused to address arguments that a statute is unconstitutional unless the notice provisions of KRS 418.075 had been fully satisfied." Id. Adhering to its view that strict compliance with the statute is required in all cases, the Court rejected the contention filing an appellate brief when the Commonwealth is a party represented by the Attorney General met the statute's requirements. It held: " Because the plain language of KRS 418.075 requires notice be given to the Attorney General prior to the entry of judgment, we reject any contention that merely filing an appellate brief, which necessarily occurs post-judgment, satisfies the clear requirements of KRS 418.075." Id.
We are bound to follow the dictates of published opinions of our Supreme Court and, with some reluctance, do so in this case. Consequently, on the basis Prickett failed to notify the Attorney General
in the trial court, we must affirm. However, we note that in an unpublished memorandum opinion, Owens v. Commonwealth,
2006-SC-000713-MR, 2008 WL 466132 (Ky. 2008), our Supreme Court expressed a view contrary to Benet and one we believe sound. In that case, our Supreme ...