James Morris v. Hon Karen Wilson Judge, Henderson Circuit Court

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION . (

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, _ UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION ·BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

RENDERED: MARCH 22, 2018 NOT TO BE PUBLISHED

201 7 -SC.-000466-MR [Q)~1~1(/,¢]/f I ~,;. {kJMOll,DC JAMES MORRIS APPELLANT

ON APPEAL FROM COURT OF APPEALS v. CASE NO. 2017-CA-00054 7 HENDERSON CIRCUIT COURT NO. 13-CR-00058

HONORABLE KAREN LYNN WILSON, APPELLEE JUDGE, HENDERSON CIRCUIT COURT

.AND REAL PARTY IN INTEREST COMMONWEALTH OF KENTUCKY

MEMORANDUM OPINION OF THE COURT

AFFIRMING

James Allen Morris Jr., proceeding without counsel, has filed this appeal as a matter of rightl from an order 1of the Court of Appeals .that denied his petition of a writ to prohibit the trial court from vacating Morris's allegedly ·unlawful guilty plea. Because Morris does not satisfy the legal requirement for. the writ he seeks, the Court of Appeals properly denied the petition. We affirm the decision of the Court of Appeals. 1 Ky Const.§ 115.

I. BACKGROUND. A grand jury indicted Morris on four counts of first-degree robbery, and

he ultimately reached a negotiated plea agreement with the Commonwealth, µnder which Morris pleaded guilty to four counts of second~degree robbery for which he received a sentence of 30 years' imprisonment. The trial court entered judgment accordingly.

Morris later filed a RCr2 11.42 motion, requesting the judgment be vacated because it imposed an illegal sentence. Kentucky Revised Statute (KRS) 532.1 lO{l)(c) provides for a maximum aggregate sentence of 20 years' imprisonment for the amend~d charges for which Morris stood convicted under his guilty plea. The Commonwealth responded, agreeing that the trial court should set aside the illegal sentence but insisting that the case be scheduled

for,trial on the_ original charges. The trial court ordered the appointment of ' counsel to Morris, commenting "it would be more appropriate to appoint

counsel for the defendant rather than undo the entire guilty plea without the defendant's consent."

Morris, with the assistance of counsel, continued to assert that the l ·judgment should simply be corrected to reflect a maximum sentence of 20

years' imprisonment rather than 30 years' impnsonment. But the . Commonwealth insists that the sentence according to the plea should be vacated and criminal proceedings reinstituted. The trial court vacated the

·2 Kentucky Rules of Criminal Procedure. · 2 \

guilty plea and the judgment of conviction ~d sentence and scheduled the

case for a pretrial conference.

Morris then filed, proceeding without counsel, a petition for a writ of prohibition in the Court of Appeals, attempting to prevent the trial court from proceeding further with prosecution of the original first-degree robbery charges and to compel the trial court'to reinstate its order "not to undo the entire guilty

plea. "3 The Court of Appeals denied the writ petition, finding that Morris has I alternative adequate remedies, including the filing of a direct appeal from the

trial court's order regarding his RCr 11.42 motion. Morris then appealed to this Court.

II. ANALYSIS.

We review the Court of Appeals' decision to deny Morris's writ of prohibition4 for an abuse of discretion.s "However, if the basis for the grant or denial involves a question of law, the appellate court reviews t}:l.is conclusion de

3 This awkward phrasing is what Morris seeks as his relief. It appears that Morris took the trial court's statement, that "it would be more appropriate to appoint counsel for · the defendant rather than undo the entire guilty plea without the de(endant's consent," as a prohibition on vacating the guilty plea. Morris takes the words of the trial court quite literally and argues that this pronouncement proscribes the trial court's ability to enter any further order that would contravene this language. Essentially, Morris assumes that this order by the trial court was a final order completely adjudicating his RCr 11.42 motion. As will be explained, this is incorrect. 4Morris interchangeably uses the terms writ of "prohibition" and "mandamus" to describe his original action in the Court of Appeals. This Court in Mahoney v. McDonald-Burkman reiterated that the standard for granting a writ of prohibition or mandamus is the same, and so the terms can be used interchangeably for the· purposes of this opinion. 320 S.W.3d 75, 77 n.2 (Ky. 2010) (citing Martin v. Administrative Office of Courts, 107 S.W.3d 212,_ 214 (Ky. 2003)) .. s Commonwealth v. Peters, 353 S.W.3d 592, 595 (Ky: 2011) (quoting Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961)).

novo." 6 "If the court with which the petition is filed bases its ruling on a factual determination, this finding of fact is reviewed for clear error."7

This Court in Commonwealth v. Peters explained that "r~lief by way of a · writ of prohibition is an 'extraordinary remedy and we have always been

cautious and conservative both in entertaining petitions for and in granting ' '

such relief. '"8 Writ cases are divided into essentially two classes based on whether the inferior court allegedly is acting: (1) without junsdiction (which included "beyond its jurisdic~ion")·;. or (2) erroneously within its jurisdiction. 9

When the petitioner is alleging that the lower court is acting erroneously within its jurisdiction, "a writ will only be granted when two threshold requirements are satisfied: there exis_ts no adequate remedy by appeal or otherwise; and the petitioner will suffer great and irreparable harm."10 Under . the "certain special cases" exception, the writ can be granted "in the absence of a showing of specific great and irreparable injury ... provided a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration."11 But, the certain special cases exception still

6 Id. 17 Id.

s Peters, 353 S.W.3d at 595 (quoting Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 808 (Ky. 2004)). 9 Id. 10 Peters, 353 S.W.3d at 595 (citing Hoskins v. Maricle, 150 S.W.3d 1, 18 (Ky. 2004). 11 Peters, 353 S.W.3d at 595 (quoting Bender, 343 S.W.2d at 801 (emphasis in original)).

requires a showing of a lack of an adequate remedy by appeal.when.the alleged error is that of the court erroneously ~cting within its jurisdiction. 12"No ac:_lequate remedy by appeal or otherwise means that the injury to be

suffered ... 'could not therefore be rectified by subsequent proceedings in the . ) '

case. "' 13

Morris claims that the Court of Appeals erred in two ways when it denied his writ petition. First, Morris claims that the Court of Appeals should have automatically granted his writ petition, because the respondents, Judge Wilson and the Commonwealth, did not file responses to his writ petition in the Court of Appeals. But Morris has not cited to any rule of law that states that a petitioner for a writ i~ entitled to an--automatic grant if the respondent fails to file a response, and we decline to adopt ~uch a rule today. So the Court of Appeals did not err in reaching the merits 9f Morris's petition, and we shall do the same.

Second, Morris argues that the Court of Appeals failed to recognize that he.satisfied the requirements for the granting of his petition. But this argument fails, as well. Morris alleges that the trial court is acting erroneously outside its jurisdiction because it entered an invalid order vacating the guilty plea when it specifically entered an earlier order pprportedly stating that it would not undo the guilty plea. This argument is without merit, mainly because it erroneously

12 Jndependent Order of Foresters v. Chauvin, 175 S.W.3d 610, 617 (Ky. 2005) (citing Bender, 343 S.W.2d at 801)). 13 Ridgeway Nursing & Rehabilitation Facility, LLC v. Lane, 415 S.W.3d 635, 640 (Ky. 2013) (quoting Bender, 343 S.W.2d at 802). · ·

assumes that the trial court's statement regarding the need to appoint counsel for him. was an order of the Court sustaining his position not to "undo the entire plea agreement."

The trial court's original order in this case, in response to Morris's RCr 11.42 motion, did nothing to displace the jurisdiction it had over Morris, as a

final determination on Morris's RCr 11.42 motion had never been entered. The . . trial court's statement, that "it would be more appropriate to appoint counsel

for the defendant rather than undo the entire guilty plea without the defendant's consent," is neither a declaration that the guilty plea can never be undone, nor a final order; rather, it is a statement by the trial court that the appropriate relief as of that point in time was to appoint counsel to assist Morris in further develop~ents of the case and to assist Morris in arguing the

merits of his RCr 11.42 motion. In other words, the trial court never made a I.

final ruling as to the merits of Morris's RCr 11.42 motion-it simply ordered "\.. '

that counsel be appointed tg_ assist Morris in arguing si:i.ch merits. Therefore the trial court cannot be said to have lost jurisdiction over the case because it never ceased to exercise its jurisdiction. The original comment upon which Mprris relies did not conclusively adjudicate his RCr 11.42 motion. Morris's writ petition fails for having not met the requirements for a valid writ petition under the first class of such petition.

Morris's writ petition also fails the second and "certain special cases" writ petition classes' requirements. As stated, both classes require, among other things, that the petitioner not have any other adequate remedy by appeal. In

6 I

this case, as the Court of Appeals.acknowledged, Morris has a·different adequate remedy by appeal-Morris can file a direct appeal of the trial court's actual final order on his RCr 11.42 motion. Because Morris has an adequate alternative remedy, his petition cannot satisfy this requirement of the second and "certain special cases" classes for a writ petition.

III. CONCLUSION.

Morris cannot satisfy the requirements for the grant of a petition for writ of prohibition. As such, we affirm the Court of Appe~s' denial of Morris's writ petition because the Court of Appeals did not abuse its discretion in doing so.

All sitting. All concur. COUNSEL FOR APPELLANT:

James A. Morris, #267917, prose Eastern Kentucky Correctional Center

Honorable Karen Lynn Wilson, Judge . Henderson Circuit Court

COUNSEL FOR REAL PARTY IN INTEREST, COMMONWEALTH OF KENTUCKY:

Andy. Beshear . . Attorney General of Kentucky

Perry Thomas Ryan Assistant Attorney General

William I. Markwell Jr. Assistant Attorney General