Opinion
NO. 2014-CA-001815-MR
03-18-2016
COMMONWEALTH OF KENTUCKY APPELLANT v. KEITH EDWARD MASON APPELLEE
BRIEF FOR APPELLANT: Jack Conway Attorney General Frankfort, Kentucky Robert Ernest Stephens, Jr. Special Assistant Attorney General Williamsburg, Kentucky BRIEF FOR APPELLEE: None
NOT TO BE PUBLISHED APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL K. WINCHESTER, JUDGE
ACTION NO. 12-CR-00222 OPINION
VACATING BEFORE: ACREE, CHIEF JUDGE; DIXON AND KRAMER, JUDGES. KRAMER, JUDGE: The Commonwealth of Kentucky appeals from the October 31, 2014 order of the Whitley Circuit Court setting aside its August 20, 2014 final judgment and sentencing of appellee Keith Edward Mason pursuant to his conditional guilty plea, alleging it lacked jurisdiction to set aside the order. We agree and vacate the circuit court's October 31, 2014 order.
On July 9, 2012, a Whitley County grand jury charged Mason with manslaughter second degree after he discharged a firearm, striking and killing Robert Vanover. Mason entered a conditional guilty plea to the charge with a recommended sentence of seven years on July 16, 2014. On August 18, 2014, the circuit court held a final sentencing hearing wherein Mason requested the circuit court consider bond pending appeal. The court entered its final judgment and sentencing order on August 20, 2014, but did not immediately rule on the issue of bond pending appeal, holding it over for a separate hearing on October 22, 2014. In the meantime, Mason appealed from the final judgment and sentencing order.
Kentucky Revised Statutes (KRS) 507.040.
At the October 22, 2014 hearing, the circuit court heard arguments from both parties on the issue of bond pending appeal and at the close of arguments, requested the parties brief the issue. After both parties filed briefs, on October 31, 2014, the circuit court ordered the August 20, 2014 final judgment and sentencing order "set aside, canceled and held for nought," and moved the case back to its trial docket.
The Commonwealth now appeals from the October 31, 2014 order, contending the circuit court lost jurisdiction to alter, amend, or vacate its August 20, 2014 final judgment ten days after entry of the order pursuant to CR 59.05. Our review is de novo because jurisdiction is a question of law. Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2008).
Kentucky Rules of Civil Procedure (CR).
On appeal Mason has failed to file a brief as required by Kentucky Civil Rule (CR) 76.12(1). Although the Commonwealth does not raise Mason's failure to comply with CR 76.12, we have wide latitude to determine the proper remedy for a litigant's failure to follow the rules of appellate procedure. An appropriate penalty is to regard an appellee's failure to file a brief as a confession of error and award the appellant the relief it seeks without considering the merits of the case. Com., Dept. of Public Safety v. Skiadas (Ky. 1970) 454 S.W.2d 110; CR 76.12(8)(c)(iii). We do so here and VACATE the Whitley Circuit Court's October 31, 2014 order setting aside Mason's final judgment and sentencing.
CR 76.12(1) states in pertinent part:
Unless otherwise directed by the appellate court, before any appeal is taken under submission for final disposition on the merits briefs shall be filed by the respective parties.
However we would reach the same result if we considered the merits of the Commonwealth's argument. In support the Commonwealth cites Silverburg v. Commonwealth, 587 S.W.2d 241, 244 (Ky. 1979), wherein the trial court attempted to modify the defendant's sentence 38 days after entry of its final judgment and sentencing order, purportedly pursuant to its authority under KRS 532.070. On appeal we determined that because KRS 532.070 and our criminal rules do not specify the time within which the final judgment and sentencing order may be modified, the civil rules applied. Id.; RCr 13.04. Because CR 59.05 provides that a final judgment may be altered, amended or vacated only within ten days after entry of the final judgment, we held the court lacked jurisdiction and the order modifying the final judgment and sentencing was void. Id.; see also Commonwealth v. Sowell, 157 S.W.3d 616, 618 (Ky. 2005) (finding that "[u]nder CR 59, a final judgment or order may be vacated only in accordance with the ten day provisions of the rule. Thereafter, the trial court loses jurisdiction to act."). Here, the order setting aside Mason's final judgment and sentencing order was entered well beyond the ten day limit imposed by CR 59.05 - 62 days after the window expired - and is thus void and would be vacated if we reached the merits.
KRS 532.070 generally provides for modification of a sentence imposed by a jury if the trial court determines the sentence is unduly harsh.
Kentucky Rules of Criminal Procedure (RCr). --------
ALL CONCUR. BRIEF FOR APPELLANT: Jack Conway
Attorney General
Frankfort, Kentucky Robert Ernest Stephens, Jr.
Special Assistant Attorney General
Williamsburg, Kentucky BRIEF FOR APPELLEE: None