Commonwealth v. Bass

GANT, Justice. Respondent Timothy Eugene Bass operated an ambulance service in Christian County between April, 1985, and June, 1986, in which capacity he was an authorized provider of services to the Kentucky Medical Assistance Program (KMAP). Under the pertinent regulations, respondent was required to submit a claim form for each service, setting out all the details of the services provided. These details included name of the recipient, type of trip, mileage, base charges, certification that recipient’s condition necessitated the trip, identification of driver and vehicle, certification that all statements on the claim form were true, complete and accurate, etc. As a result of an investigation by the Kentucky Medicaid Fraud and Abuse Control Division, respondent was indicted by the Franklin County Grand Jury for 16 counts. The first count charged a violation of KRS 194.505(6), a Class C felony when the sum collected is $10,000 or more. That statute reads: (6) No person shall with intent to defraud or deceive, devise a scheme or plan a scheme or artifice to obtain benefits from any assistance program by means of false or fraudulent representations or intentionally engage in conduct which advances the scheme or artifice. Respondent was further indicted for 15 additional counts, being numbered Counts II through XVI, for violation of KRS 205.-850(4), these being one count for each month during which claims were filed for services fraudulently certified. Each of these counts constituted a Class D felony under KRS 205.990(5). KRS 205.850(4) reads: (4) No person shall make, present, or cause to be made or presented to an employe or officer of the cabinet any false, fictitious or fraudulent statement, representation or entry in any application, claim, report or document used in determining rights to any benefit or payment or the extent of such entitlement to any benefit or payment, knowing such application, claim, report or document to contain any false, fictitious or fraudulent information; ... The investigation allegedly disclosed that respondent presented or caused to be presented to KMAP approximately 1,600 fraudulent claims, each of which was for $100 or more, and had fraudulently received approximately $160,000 based upon these claims. In early July, 1988, about six days before trial, respondent moved to dismiss Counts III-XVI of the indictment on the grounds that KRS 205.990(5) requires consolidation of all fraudulent claims into one claim; that the counts were multiplicitous, and that conviction would result in double jeopardy. This motion was sustained by the Franklin Circuit Court, and this case comes to us on appeal. Review is granted under KRS 22A.020(4) because the action of the trial court has adversely affected an issue which is vital to the Commonwealth. See Eaton v. Commonwealth, Ky., 562 S.W.2d 637 (1978). The test which must be applied is found in both statutory and case law. KRS 505.-020 provides: “(1) When a single course of conduct of a defendant may establish the commission of more than one offense, he may be prosecuted for each such offense.” The trial court found that the dismissed counts fell under the exception to the above-quoted Paragraph (1) found in (l)(c), which states: (c) The offense is designed to prohibit a continuing course of conduct and the defendant’s course of conduct was uninterrupted by legal process, unless the law expressly provides that specific [918] periods of such conduct constitute separate offenses. It is our opinion that KRS 205.990(5) clearly provides for separate offenses. This statute reads: Any person who violates Subsection (4) of KRS 205.850 shall be guilty of a Class A misdemeanor unless the sum total of benefits or payments claimed in any such application, claim, report or document, or in any combination or aggregation thereof, is valued at one hundred dollars ($100) or more, in which case it shall be a Class D felony. (Emphasis ours.) Thus, each claim which is of an aggregate amount of $100 or more is a Class D felony, and we do not feel that basing the counts in the indictment on the monthly statement is erroneous. The respondent herein can hardly complain when there are less counts in the indictment than the pertinent statutes might possibly permit. The applicable case law also permits separate prosecutions. KRS 505.020 has been described by this court as a codification of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). That case sets out that the test is whether individual acts are prohibited or the course of action and conduct which they constitute. We cannot find that the legislature intended the same punishment for one fraudulent claim of $100 as it did for 1,600 such claims amounting to $160,000. See also Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). The July 8, 1988 order of the Franklin Circuit Court consolidating Counts II through XVI into one count is hereby set aside, and this case is remanded to said court with directions to restore the original indictment to the docket to be set for trial on all counts. STEPHENS, C.J., and LAMBERT and WINTERSHEIMER, JJ., concur. LEIBSON, J., dissents and files a separate dissenting opinion. VANCE, J., dissents without opinion. COMBS, J., not sitting.