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Black v. Commonwealth7/1/2005
AFFIRMING
BEFORE: TACKETT AND VANMETER, JUDGES; MILLER, SENIOR JUDGE.
Michael Black appeals from a judgment of the Mason Circuit Court finding him guilty of possession of a controlled substance in the first degree, possession of marijuana, driving under the influence , and tampering with physical evidence. He was originally indicted on charges of first-degree trafficking, possession of marijuana, and DUI.
Then the grand jury issued a superceding indictment which added the tampering charge. On appeal, he claims that the trial court erroneously denied his motion to quash the new indictment and failed to allow him to withdraw his guilty plea when the sentence was going to be different than the recommendation contained in the plea bargain. Finding no merit to these contentions, we affirm the trial court.
The original indictment, charging Black with first-degree trafficking, possession of marijuana, and DUI, was returned on February 7, 2003. The officer who testified before the grand jury included statements to the effect that Black was asked to provide a second urine sample because the technician who collected the first one suspected it had been diluted with water. Nevertheless, the grand jury did not charge him with tampering at this time. Three weeks later, the prosecutor represented the evidence to the same grand jury and obtained a superceding indictment which contained all of the original charges, plus an additional charge of tampering with physical evidence. The trial court denied Black's motion to quash the superceding indictment.
Initially, the Commonwealth offered to amend the trafficking charge to first-degree possession and recommend a sentence on all charges of three years with no probation. Black refused this offer. Subsequently, the Commonwealth offered Black five years on the same amended indictment, but agreed not to oppose shock probation in ninety days provided Black's conduct prior to sentencing merited it. Black accepted this offer; however, between the plea date and the date of his final sentencing, Black was arrested in New York and charged with possession of marijuana and possession of a firearm. He posted bond in order to return to Kentucky for his next court date where he requested a continuance on his final sentencing. Black maintained that he was innocent of the charges and expected to be able to resolve the matter favorably, but the trial court refused to postpone his sentencing. He then moved to withdraw his guilty plea and substitute the original offer of a three-year sentence to serve. The trial court also refused this request and sentenced him to five years' imprisonment. This appeal followed.
Black argues that the trial court erred by refusing to quash the superceding indictment, issued by the same grand jury and based on no additional inculpatory evidence. He quotes the following language in Bishop v. Caudill, 87 S.W.3d 1 (Ky. 2002) as the basis of his argument:
A grand jury is charged "to inquire into every offense for which any person has been held to answer and for which an indictment or information has not been filed, or other offenses which come to their attention or of which any of them has knowledge." RCr 5.02 (emphasis added); Bowling v. Sinnette, Ky., 666 S.W.2d 743, 745 (1984). It follows that, after an indictment or information has been filed, the grand jury's function with respect to that particular indictment is concluded. On the basis of additional inculpatory evidence, the grand jury can issue a new, superseding indictment charging the defendant with additional offenses. . .
Id. at 3. Black contends that, since no additional evidence was presented, the grand
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