RENDERED: JANUARY 12, 2024; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1520-MR
TARELL THOMAS APPELLANT
APPEAL FROM HICKMAN CIRCUIT COURT
v. HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 10-CR-00022
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.
ACREE, JUDGE: Appellant, Tarell Thomas, pro se, appeals the Hickman Circuit
Court’s order denying his motion for relief pursuant to CR1 60.02. Having
reviewed the record, we affirm.
1
Kentucky Rules of Civil Procedure.
In 2011, a jury convicted Appellant on four counts: (1) complicity to
commit burglary in the first degree; (2) complicity to commit robbery in the first
degree; (3) complicity to commit assault in the second degree; and (4) intimidating
a participant in the legal process. On these counts, the jury recommended a
sentence of thirty years, and the judge, accordingly, so sentenced Appellant. He
then appealed his conviction to the Kentucky Supreme Court, which affirmed the
conviction on all meritorious grounds. See Thomas v. Commonwealth, No. 2011-
SC-000557-MR, 2013 WL 1188030, at *1 (Ky. Mar. 21, 2013).
On September 9, 2021, Appellant initiated this action by filing a CR
60.02 motion to vacate the judgment, arguing the Commonwealth violated his
constitutional protections against double jeopardy. The circuit court did not grant
the relief requested, relying on the reasoning given in Oliver v. Commonwealth,
No. 2012-SC-000153-MR, 2013 WL 4680423, at *1 (Ky. Aug. 29, 2013).
On appeal, Appellant argues his conviction for complicity to commit
burglary, robbery, and assault violate the constitutional principles the United States
Supreme Court teased out in Blockburger v. United States, 284 U.S. 299, 52 S. Ct.
180, 76 L. Ed. 306 (1932). The Commonwealth presents several procedural
challenges. These challenges are not without merit; however, we will address
Appellant’s claims because they implicate constitutional protections.
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Pursuant to Blockburger, “[d]ouble jeopardy does not occur when a
person is charged with two crimes arising from the same course of conduct, as long
as each statute ‘requires proof of an additional fact which the other does not.’”
Commonwealth v. Burge, 947 S.W.2d 805, 809 (Ky. 1996) (quoting Blockburger,
284 U.S. at 304, 52 S. Ct. at 182). See also KRS2 505.020. Blockburger derives
these principles from the Fifth Amendment to the United States Constitution,
which reads: “No person shall . . . be subject for the same offen[s]e to be twice put
in jeopardy of life or limb[.]” U.S. CONST. amend. V. Kentucky’s constitution
similarly contains a double jeopardy clause in § 13, and the General Assembly
codified Blockburger’s same element test in KRS 505.020. See KY. CONST. § 13
(“No person shall, for the same offense, be twice put in jeopardy of his life or
limb . . . .”); KRS 505.020 (“(1) When a single course of conduct of a defendant
may establish the commission of more than one (1) offense, he may be prosecuted
for each such offense. He may not, however, be convicted of more than one (1)
offense when: (a) One offense is included in the other . . . .”).
Thus, following Blockburger: “The applicable rule is that, where the
same act or transaction constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other does not.”
2
Kentucky Revised Statutes.
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Blockburger, 284 U.S. at 304, 52 S. Ct. at 182. Accordingly, we turn to the
elements of each of Appellant’s offenses to determine if they are separate offenses
or only one.
As applicable here, and pursuant to KRS 508.020, one is guilty of
second-degree assault “when: . . . [h]e intentionally causes physical injury to
another person by means of a deadly weapon or a dangerous instrument . . . .”
KRS 508.020(1)(b). On the other hand, one is guilty of first-degree burglary
when: “with the intent to commit a crime, he . . . knowingly enters or remains
unlawfully in a building, and when in effecting entry or while in the
building . . . he . . . [i]s armed with explosives or a deadly weapon[.]” KRS
511.020(1)(a). Finally, one is guilty of first-degree robbery “when, in the course of
committing theft, he . . . uses or threatens the immediate use of physical force upon
another person with intent to accomplish the theft and . . . he . . . [c]auses physical
injury to any person who is not a participant in the crime[.]” KRS 515.020(1)(a).
One may be convicted of each of these offenses, arising from the
same occurrence, without violating an individual’s rights against double jeopardy.3
Each offense involves an additional fact that the other does not require. See Clark
3
We do note, however, a jury convicted Appellant of complicity to commit these crimes, though
this has no bearing on our analysis.
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v. Commonwealth, 267 S.W.3d 668, 675-76 (Ky. 2008). We commend Appellant
for his well-written pro se brief; Appellant misunderstands the Blockburger test.
Primarily, Appellant argues that the elements of robbery and burglary
subsume the two elements of assault ((1) serious physical injury caused (2) by a
deadly weapon). He contends that because assault does not contain an element that
robbery and burglary also do not, his double jeopardy rights are violated.
However, to apply Blockburger correctly, one must compare each offense to each
of the others and not compare offenses as groups of charges.
Accordingly, to be convicted of assault and robbery does not violate
double jeopardy because both require an additional fact to be proven that the other
does not: second-degree assault requires an injury caused by the use of a deadly
weapon, whereas first-degree robbery requires a theft. Additionally, to be
convicted of assault and burglary does not violate double jeopardy because, again,
both require an additional fact that must be proven at trial: second-degree assault
requires a physical injury, but first-degree burglary requires entering unlawfully
into a building. Finally, to be convicted of burglary and robbery does not violate
double jeopardy because, again, both require an additional fact to be proven that
the other does not: first-degree burglary requires entering unlawfully into a
building, but robbery requires a theft. Thus, we find no violation of Thomas’
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rights under the Fifth Amendment to the U.S. Constitution, nor Section 13 of the
Kentucky Constitution.
There is no proviso to the Blockburger analysis that when more than
two crimes are charged the elements of each charged are compared with the
combined elements of all the remaining charges. Instead, one must test individual
charges against individual charges to determine if each requires an additional,
different fact not found in each of the other individual charges.
For the reasons stated above, we affirm the circuit court’s order.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Tarell Thomas, pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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