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Appellant v. Commonwealth

Court of Appeals of Kentucky

May 11, 2018

RONA ALEXANDER APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLE FRED A. STINE V, JUDGE ACTION NO. 16-CR-00663

          BRIEFS FOR APPELLANT: Shannon Dupree Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark D. Barry Assistant Attorney General Frankfort, Kentucky

          BEFORE: COMBS, JONES, AND NICKELL, JUDGES.

          OPINION

          NICKELL, JUDGE:

         Rona Alexander has appealed from the March 23, 2017, order of the Campbell Circuit Court granting the Commonwealth's motion to dismiss an indictment against her without prejudice. She contends the trial court should have denied the motion and permitted the matter to proceed to trial. She further urges us to hold trial courts have the inherent power to grant expungement in cases such as hers. Following a careful review, we disagree with Alexander and affirm.

         Following a traffic stop, Alexander was charged with possession of a controlled substance and possession of drug paraphernalia and was ultimately indicted by a Campbell County Grand Jury for those offenses. She successfully challenged the stop as unconstitutional and the trial court granted her motion to suppress the evidence seized. Having no other evidence to support the charges, the Commonwealth verbally moved to dismiss the indictment without prejudice at a subsequent pretrial conference. Alexander opposed the motion, asserting a dismissal without prejudice could never be expunged or removed from her record. She sought a hearing on the Commonwealth's motion and also requested the matter be set for a jury trial. The trial court set a trial date, directed the Commonwealth to file a written motion, permitted Alexander time to respond and set the matter for a hearing prior to the scheduled trial date.

         Following a short hearing, the trial court granted the Commonwealth's motion over Alexander's objection. While noting its displeasure with the Commonwealth's position, the trial court concluded it had no authority to dismiss an indictment with prejudice absent the Commonwealth's consent. Because the matter was dismissed, no jury trial occurred. This appeal followed.

         Alexander argues the trial court abused its discretion in granting the dismissal without prejudice and not permitting the matter to proceed to trial. Alternatively, Alexander contends the trial court should be permitted to use its "inherent power to grant expungement in this case." Neither of these assertions finds support in the law.

         It is axiomatic that absent extraordinary circumstances, [1] a trial court may not dismiss an indictment prior to trial except with consent of the Commonwealth. RCr[2] 9.64; Hoskins v. Maricle, 150 S.W.3d 1, 13 (Ky. 2004).

The power to define crimes and establish the range of penalties for each crime resides in the legislative branch. The power to charge persons with crimes and to prosecute those charges belongs to the executive department, and by statute, is exercised by the appropriate prosecuting attorney. The power to conduct criminal trials, to adjudicate guilt and to impose sentences within the penalty range prescribed by the legislature belongs to the judicial department. See Hoskins, 150 S.W.3d at 11-12.

Gibson v. Commonwealth, 291 S.W.3d 686, 689-90 (Ky. 2009). RCr 9.64 states:

[t]he attorney for the Commonwealth, with the permission of the court, may dismiss the indictment, information, complaint, or uniform citation prior to the swearing of the jury or, in a non-jury case, prior to the swearing of the first witness.

         Whether to grant permission for dismissal lies within the sound discretion of the trial court. Hoskins, 150 S.W.3d at 16. A trial court abuses its discretion when its decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal ...


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