FROM CAMPBELL CIRCUIT COURT HONORABLE FRED A. STINE V, JUDGE
ACTION NO. 16-CR-00663
FOR APPELLANT: Shannon Dupree Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark
D. Barry Assistant Attorney General Frankfort, Kentucky
BEFORE: COMBS, JONES, AND NICKELL, JUDGES.
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.
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.
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.
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.
axiomatic that absent extraordinary circumstances,
trial court may not dismiss an indictment prior to trial
except with consent of the Commonwealth. RCr 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
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 ...