Opinion
NO. 2011-CA-000012-MR
04-26-2013
BETTY WHITAKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Ned Pillersdorf Prestonsburg, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Christian K. R. Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 10-CR-00141
OPINION
AFFIRMING
BEFORE: KELLER, LAMBERT, AND MOORE, JUDGES. MOORE, JUDGE: Betty Whitaker appeals the Franklin Circuit Court's order denying her motion to dismiss the indictment against her. After a careful review of the record, we affirm because Whitaker's double jeopardy rights were not violated and the Commonwealth did not welsh on its bargain.
Judge Michelle M. Keller concurred in this opinion prior to her appointment to the Kentucky Supreme Court. Release of this opinion was delayed by administrative handling.
I. FACTUAL AND PROCEDURAL BACKGROUND
Whitaker was employed by the Commonwealth of Kentucky as a "Mine Safety Analyst I, Energy and Environment Cabinet, Department for Natural Resources, Office of Mine Safety and Licensing." Following an investigation, she was charged by the Commonwealth's Executive Branch Ethics Commission (Commission) of violating KRS 11A.020(1)(b), (c), and (d) by falsifying mine reports and failing "to fulfill her job duties over a one year period while receiving compensation." Executive Branch Ethics Commission v. Betty Sue Whitaker, Case No. 09-001.
Kentucky Revised Statute.
Whitaker ultimately entered into a settlement agreement with the Commission, wherein she admitted that she committed violations of KRS 11A.020(1)(b), (c), and (d); she agreed "to pay the Commission a civil penalty in the total amount of one thousand five hundred dollars ($1,500.00) on or before August 28, 2009"; and she agreed that once the Commission's final order was entered, she waived "all rights to any further administrative process or appeal pursuant to KRS 13B.140 thereon." Additionally, the settlement agreement provided that both parties agreed "that the acceptance of this Settlement Agreement by both parties, and the fulfillment of its express terms, is in full accord and satisfaction of the herein referenced Executive Branch Ethics Commission v. Betty Sue Whitaker, Agency Case No. 09-001." Subsequently, the Commission entered a final order dismissing the matter on the basis that it had been settled.
The Commonwealth then indicted Whitaker on twenty-eight counts of tampering with public records pursuant to KRS 519.060. Each count alleged that Whitaker falsified reports regarding various mines and caused the reports to be filed and entered with the Kentucky Department for Natural Resources, Office of Mine Safety and Licensing.
Whitaker filed a motion to dismiss the indictment and an amended motion to dismiss. She alleged that the indictment violated her double jeopardy rights under the Kentucky and United States Constitutions. Specifically, Whitaker argued that the subject matter of the indictment and the subject matter of the Commission's prior ethics complaint against her in Executive Branch Ethics Commission v. Betty Sue Whitaker, Agency Case No. 09-001, were the same and that she had already been punished for the same charges, pursuant to the settlement agreement in the case involving the ethics complaint. Whitaker also contended the settlement agreement provided that both parties agreed there was "full accord and satisfaction" of the issues between the parties, and she asserted that the Commonwealth should be required to keep its promises.
The Commonwealth opposed both the motion to dismiss and the amended motion to dismiss. A hearing was held on the motion, and the circuit court denied the motion to dismiss, holding that the proceedings by the Commission against Whitaker "were civil in nature, and that the civil penalty imposed by the administrative agency did not implicate the penal or criminal jurisdiction of state government." The court found that the decision in Turbyfill v. Executive Branch Ethics Commission, 303 S.W.3d 124 (Ky. App. 2009), as modified (Ky. App. 2010), was controlling because in Turbyfill, this Court held that the Ethics Commission's proceedings were civil, rather than criminal. The circuit court also noted that the Commission is "an administrative agency that has no power to waive, settle, or compromise the position of the Commonwealth in any matter outside the scope of its administration of the ethics statute codified at KRS Chapter 11A."
The Commonwealth made an Offer on a Plea of Guilty, which stated that if Whitaker entered conditional guilty pleas on all of the counts, the Commonwealth would recommend a sentence of five years for each count, to be served concurrently, for a total of five years of imprisonment. The guilty pleas would be conditioned on Whitaker's right to appeal the issue "of whether her indictment violates double jeopardy as same subject matter in Commonwealth of Kentucky Executive Branch Ethics Commission, Case No. 09-001." The Commonwealth also would recommend that Whitaker pay a $3,500.00 fine and investigative costs of $8,200.00.
Whitaker moved to enter a conditional guilty plea in accord with the Commonwealth's Offer on a Plea of Guilty. The circuit court entered its judgment, stating that Whitaker had entered her guilty plea to the twenty-eight counts of tampering with public records. Whitaker was sentenced to a maximum term of imprisonment of five years, which was probated for five years. She was ordered to pay restitution in the amount of $8,200.00, a fine in the amount of $3,500.00, and court costs of $156.00.
The court's judgment did not state that Whitaker's guilty plea was conditioned on her right to appeal the double jeopardy issue. However, the Commonwealth does not dispute that Whitaker's guilty plea was conditional. Additionally, the Commonwealth's Offer on a Plea of Guilty noted that the guilty plea would be conditioned on Whitaker's right to appeal the double jeopardy issue, and her motion to enter a guilty plea also stated that her right to appeal was conditional, as provided in the plea offer. Further, during the plea colloquy, Whitaker's counsel informed the court that she was entering a conditional guilty plea. Thus, pursuant to Dickerson v. Commonwealth, 278 S.W.3d 145, 148-49 (Ky. 2009), Whitaker sufficiently preserved her right to appeal the double jeopardy issue.
Whitaker now appeals, contending that: (a) the circuit court erred when it held that the indictments did not violate her double jeopardy rights; and (b) the circuit court erred in failing to dismiss the indictments pursuant to Workman v. Commonwealth, 580 S.W.2d 206 (Ky. 1979).
II. ANALYSIS
A. DOUBLE JEOPARDY
Whitaker first contends the circuit court erred when it held that the indictments did not violate her double jeopardy rights. She alleges she was previously penalized by the Commission pursuant to the settlement agreement in the ethics complaint case, when she agreed to pay a $1,500.00 civil penalty and she received a reprimand, so her criminal conviction places her in double jeopardy.
In her criminal case, Whitaker was charged with multiple violations of KRS 519.060, which provides:
(1) A person is guilty of tampering with public records when:
(a) He knowingly makes a false entry in or falsely alters any public record; or
(b) Knowing he lacks the authority to do so, he intentionally destroys, mutilates, conceals, removes, or otherwise impairs the availability of any public records; or(2) Tampering with public records is a Class D felony.
(c) Knowing he lacks the authority to retain it, he intentionally refuses to deliver up a public record in his possession upon proper request of a public servant lawfully entitled to receive such record for examination or other purposes.
In her civil case, Whitaker was alleged to have violated KRS 11A.020(1)(b), (c), and (d), which provide:
(1) No public servant, by himself or through others, shall knowingly:
* * *
(b) Use or attempt to use any means to influence a public agency in derogation of the state at large;
(c) Use his official position or office to obtain financial gain for himself or any members of the public servant's family; or
(d) Use or attempt to use his official position to secure or create privileges, exemptions, advantages, or treatment for himself or others in derogation of the public interest at large.
"Both the Fifth Amendment to the United States Constitution and Section 13 of the Kentucky Constitution secure an individual's protection against double jeopardy. The Fifth Amendment specifically states that no person shall 'be subject for the same offence to be twice put in jeopardy of life or limb.'" Simpson v. Commonwealth, 159 S.W.3d 824, 826 (Ky. App. 2005) (internal quotation marks and citation omitted).
Whitaker cites Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and Turbyfill, 303 S.W.3d at 124, in support of her double jeopardy claim. In her appellate brief, she asserts that Kurth Ranch stands for the proposition that "the [D]ouble [J]eopardy [C]lause prohibits both the imposition of criminal charges and civil punitive penalties." Whitaker then notes that in its Kurth Ranch decision, the United States Supreme Court referred to its prior decision in Halper. Whitaker continues, discussing the Supreme Court's holding in Halper, and she argues that the Halper "fact pattern is directly relevant to [her] issue before this Court." However, we note that Halper was abrogated by Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). Thus, Whitaker's reliance upon Halper is misplaced, and we will discuss the Hudson case further during our analysis of Turbyfill, infra.
Whitaker also cited Halper in her motion to dismiss in the circuit court, and the Commonwealth stated in its response to the motion to dismiss that Halper had been "overruled," so we are uncertain why Whitaker continues to cite Halper as if it continues to be good law.
As for her reliance upon Kurth Ranch, that case involved the question of whether a tax could be characterized as punitive, in a way that the tax violated one's double jeopardy rights. Kurth Ranch, 511 U.S. at 778, 114 S.Ct. at 1945. The Court in Kurth Ranch noted that "tax statutes serve a purpose quite different from civil penalties, and Halper's method of determining whether the exaction was remedial or punitive simply does not work in the case of a tax statute." Kurth Ranch, 511 U.S. at 784, 114 S.Ct. at 1948 (internal quotation marks and citation omitted). Therefore, because Kurth Ranch involved a tax statute, which is very different from the civil penalty that Whitaker was ordered to pay, Kurth Ranch is inapplicable to the present case; Whitaker's reliance upon it is misplaced.
Finally, Whitaker cites Turbyfill in support of her double jeopardy claim. In Turbyfill, the issue was whether the Kentucky Executive Branch Ethics Commission, i.e., the same Commission that is involved in the present case, had the "authority to pursue an administrative proceeding for the purpose of sanctioning . . . Turbyfill, who was previously pardoned by" the Governor. Turbyfill, 303 S.W.3d at 126. "Turbyfill filed a motion to dismiss with [the Commission's] hearing officer arguing that the violations alleged by the [Commission] were the same charged in the criminal indictment and, therefore, were encompassed within the Governor's pardon." Turbyfill, 303 S.W.3d at 127.
The Court in Turbyfill concluded and reasoned as follows:
[W]e conclude that the allegation that Turbyfill violated KRS 11A.020 is not criminal in nature and is collateral to the criminal proceedings; therefore, the [Commission's] proceeding is not subject to [the Governor's] pardon.Turbyfill, 303 S.W.3d at 129-30 (internal quotation marks omitted).
Although the designation of a statute as a civil remedy is not conclusive, absent clear proof the Court will not transform the legislature's characterization of a civil remedy into a criminal penalty. Burnett v. Commonwealth, 3 S.W.3d 359 (Ky. App. 1999).
[Kentucky Revised Statute] 11A.100(3)(e) clearly states that the remedy is a civil penalty imposed for a violation
of KRS 11A.020 and is separate and distinct from any possible criminal consequences provided for in KRS 11A.100(5) for violations of KRS 11A.040. The [Commission] is not empowered to impose any criminal sanctions, leaving any criminal penalties to be pursued by the Office of the Attorney General. Its function is limited to promote ethical conduct of present and former public employees . . . . Thus, Turbyfill must demonstrate that despite the legislature's language to the contrary, the statutory scheme is so punitive in purpose or effect as to transform it into a criminal penalty. Burnett, 3 S.W.3d at 361.
Relying on Hudson [, i.e., the case that abrogated Halper],the Court in Burnett set forth seven factors to consider when determining whether a penalty is criminal or civil:
(1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter"; (4) "whether its operation will promote the traditional aims of punishment-retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned." It is important to note, however, that "these factors must be considered in relation to the statute on its face," and "only the clearest proof" will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty. (Citations omitted).[Burnett, 3 S.W.3d] at 361.
As applied to this case, the factors do not preempt the legislature's express characterization of the remedies
available to the [Commission] as civil. Although a monetary sanction is available, such sanctions are not an affirmative disability or restraint, are not historically regarded as punishment, and are widely accepted as an enforceable sanction through a civil proceeding. . . .
The third factor, scienter, is not relevant because the monetary penalty does not depend upon the actor's intent.
The final four factors focus upon the purpose of the statute and the relationship of the sanction to that purpose. The requirement that public officers be free from corruption and unethical conduct is beyond debate. Although the potential sanctions contained in KRS 11A.100(5) are intended to deter such behavior, there is a significant public purpose for its existence, and the potential monetary sanctions are infinitesimal when compared to that purpose.
In summary, the factors do not sufficiently weigh in Turbyfill's favor so that the language of the legislature that the statute is a civil remedy can be ignored.
Whitaker cites Turbyfill, but claims it is distinguishable from her case. She alleges it is distinguishable because Turbyfill was indicted criminally and pardoned by the Governor before the Commission brought its ethics complaint against Turbyfill, while in Whitaker's case, the Commission brought its ethics complaint against her and the parties settled that case by agreeing Whitaker would pay a $1,500.00 civil penalty and be subject to a public reprimand before she was criminally indicted. Nevertheless, we find the reasoning in Turbyfill on point and applicable to Whitaker's case because the civil action in Turbyfill involved violations of the same statute that Whitaker violated, i.e., KRS 11A.020, and because Turbyfill also involved the application of KRS 11A.100, which was the statute pursuant to which Whitaker's settlement agreement was entered. Thus, for the same reasons that the Court found the civil penalty in Turbyfill was a civil remedy, rather than a criminal penalty, we hold that Whitaker's civil penalty was merely a civil remedy, rather than a criminal penalty. Consequently, her double jeopardy rights were not violated by the criminal indictment. B. WORKMAN CASE
Finally, Whitaker alleges that the circuit court erred in failing to dismiss the indictments pursuant to Workman, 580 S.W.2d at 206, because in Workman, the Supreme Court held that "the government should [not] be allowed to welsh on its bargain." Workman, 580 S.W.2d at 207. Whitaker contends that the settlement agreement she entered into with the Commission stated that both parties agreed that the fulfillment of the agreement's terms was in "full accord and satisfaction," which proves that both the Commonwealth and Whitaker intended the document to resolve all issues between them. The Commonwealth argues that this issue was not preserved for appeal because it was not specified in Whitaker's conditional guilty plea and, alternatively, that Workman is inapplicable.
In Dickerson, the Kentucky Supreme Court stated that on appeal from a conditional guilty plea, issues will only be considered if they:
(1) involve a claim that the indictment did not charge an offense or the sentence imposed by the trial court was manifestly infirm, or (2) the issues upon which appellateDickerson, 278 S.W.3d at 149.
review are sought were expressly set forth in the conditional plea documents or in a colloquy with the trial court, or (3) if the issues upon which appellate review is sought were brought to the trial court's attention before the entry of the conditional guilty plea even if the issues are not specifically reiterated in the guilty plea documents or plea colloquy.
In the present case, the issue concerning the Workman case was not expressly set forth in the conditional plea documents. However, that issue was brought to the trial court's attention in Whitaker's amended motion to dismiss, which was filed before she entered her conditional guilty plea. Therefore, pursuant to Dickerson, we will consider the issue.
Whitaker asserts that by indicting her, the Commonwealth is attempting to welsh on its bargain, which is not permitted under Workman. Whitaker's settlement agreement provided, in pertinent part, that: "4. The parties further agree that the acceptance of this Settlement Agreement by both parties, and the fulfillment of its express terms is in full accord and satisfaction of the herein referenced Executive Branch Ethics Commission v. Betty Sue Whitaker, Agency Case No. 09-001." Because the agreement specified that it was in full accord and satisfaction of only the ethics complaint case, the agreement did not prevent the Commonwealth from bringing criminal charges against Whitaker. Thus, the Commonwealth did not welsh on its bargain.
Workman was subsequently overruled to the extent that it provided polygraphs were admissible evidence. See Morton v. Commonwealth, 817 S.W.2d 218, 222 (Ky. 1991).
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Accordingly, the order of the Franklin Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Ned Pillersdorf
Prestonsburg, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Christian K. R. Miller
Assistant Attorney General
Frankfort, Kentucky