TERRY V. COM.
CRIMINAL: Arraignment, Superseding Indictments
PUBLISHED: AFFIRMING IN PART AND VACATING AND REMANDING IN PART
OPINION: SCOTT; LAMBERT CONCURS IN PART AND DISSENT IN PART BY SEP. OP IN WHICH SCHRODER JOINS
DATE RENDERED: 12/20/2007
Terry’s convictions for criminal mischief in the first degree are vacated and remanded. Terry’s convictions for desecration of venerated objects in the first degree, violating a grave, theft by unlawful taking over $300, and abuse of a corpse are affirmed. Terry was convicted of criminal mischief charges of which he had never been formally advised, and to which he had never entered a formal plea of not guilty. A criminal conviction may not be had on a new charge in a superseding indictment to which a defendant has not entered a formal plea, even if the new charges are based on the same essential underlying facts as the original indictment. So Terry’s criminal mischief convictions must be vacated. Under the particular facts of this case, the lack of a rearraignment on the desecration of venerated objects, violating a grave, theft by unlawful taking, and abuse of a corpse charges does not require reversal since Terry has not shown specific prejudice stemming from the lack of rearraignment on those charges.
Here, the grand jury returned a superseding indictment issued against Terry about three weeks before his scheduled jury trial. That superseding indictment added two criminal mischief charges, and it also changed Terry’s role in the other originally charged offenses from being complicit in the commission of those offenses to being the principal actor in the commission of the offenses. Under Kentucky law, "an arraignment and taking of a plea are necessary to a valid conviction." Yet, the record does not reflect that Terry was arraigned on the superseding indictment . And Terry clearly apprised the trial court of the fact that he had not been arraigned, which properly preserved this issue for appellate review.
Because theft by unlawful taking over $300 and first-degree desecration of venerated objects contain separate elements, Terry’s conviction for violating both of those statutes does not violate double jeopardy.
Digested by Scott C. Byrd
Olgin and Byrd
Defendant’s convictions for criminal mischief vacated because he was never arraigned on these charges in the superseding indictment.