Opinion
NO. 2014-CA-001836-MR
02-05-2016
JASON DEWAYNE REED APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jason Dewayne Reed, Pro se Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 12-CR-00225 OPINION AND ORDER
DISMISSING BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND JONES, JUDGES. CLAYTON, JUDGE: Jason Dewayne Reed, Appellant, brings this appeal from an order of the Franklin Circuit Court for relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 and Kentucky Rules of Civil Procedure (CR) 60.02 in which he alleged that his plea was involuntary and that his sentence should be set aside due to police misconduct. We have reviewed the record and have not discerned any error by the trial court. However, because we hold that Reed's filing fee was not tendered timely pursuant to CR 5.05, we dismiss his appeal.
Procedural History
On October 19, 2012, Reed pled guilty to two counts of Trafficking in a Controlled Substance in the First Degree, First Offense, and one count of Forgery in the Second Degree. He was sentenced to five years on each count, to be served concurrently. In exchange for Reed's guilty plea, the Commonwealth agreed to drop two counts of Enhanced Trafficking in a Controlled Substance in the First Degree, First Offense.
On May 22, 2014, Reed filed a motion to vacate, set aside, or correct his sentence, pursuant to RCr 11.42 and CR 60.02, in which he argued that he had received ineffective assistance of counsel and that his sentence should be voided due to police misconduct. Reed's motion was denied in an order entered on August 4, 2014.
On August 8, 2014, Reed filed his motion to proceed in forma pauperis on his appeal in the Franklin County Circuit Court. The circuit court denied Reed's motion in an order entered on October 8, 2014. Reed apparently paid $60 towards the filing fee for his appeal on October 14, 2014. On November 12, 2014, Reed paid the remainder of the filing fee.
Analysis
I. Noncompliance with CR 5.05(4)
The Commonwealth argues that Reed's appeal should be dismissed for his failure to comply with the appellate filing fee requirements. We agree. CR 5.05(4) provides as follows:
If accompanied by a motion for leave to proceed in forma pauperis and a supporting affidavit, and made in good faith, any matter to be filed under these rules, including appeals, shall be considered filed on the date it is tendered. If the motion to proceed in forma pauperis is denied, the moving party shall then have thirty (30) days to pay any required fees or costs or to appeal the decision. If the moving party fails to pay the required fees or costs, or to seek review, the matter shall be treated as though not timely filed. The time for certifying the record on appeal under CR 73.08 shall run from the date the motion to proceed in forma pauperis is granted.
Furthermore, CR 73.02(1)(b) states that "the notice [of appeal] shall not be docketed or noted as filed until such payment is made...." The failure to comply with the filing fee requirements in CR 5.05(4) may result in the dismissal of an appeal. See Sadler v. Commonwealth, 196 S.W.3d 22, 23-24 (Ky. App. 2006). Our Supreme Court has previously held that "a tardy notice of appeal is subject to automatic dismissal and cannot be saved through application of the doctrine of substantial compliance[.]" Excel Energy, Inc. v. Commonwealth Institutional Sec., Inc., 37 S.W.3d 713, 716-17 (Ky. 2000).
In the present case, the Franklin County Circuit Court denied Reed's motion in an order entered on October 8, 2014. It was not until November 12, 2014, that Reed paid his filing fee for this appeal. Reed, therefore, has not complied with the 30 day requirement for the payment of filing fees under CR 5.05.
Reed has not argued that paying a portion of his filing fee before the 30-day period tolled the time for filing his appeal. Nevertheless, we do not believe that it does. CR 5.05(4) requires that an appellant "pay any required fees or costs[]" within 30 days, not to pay a portion of those costs within that period. To hold otherwise would no doubt disrupt this Court's ability to hear cases expeditiously, as appellants could presumably file a small portion of the filing fee prior to the 30 day period under CR 5.05(4) and then pay the remainder at his or her leisure. "It is in the public interest that the administration of criminal justice proceed fairly, impartially, expeditiously, and efficiently." Commonwealth v. Lavit, 882 S.W.2d 678, 679 (Ky. 1994) (quoting Bradshaw v. Ball, 487 S.W.2d 294, 298 (Ky. 1972)).
Instead, Reed argues that the circuit court clerk denied his motion, instead of the judge. Our examination of the record reveals that this argument is unsubstantiated. --------
We note that Reed is proceeding pro se and is not held to the same standards as litigants represented by counsel. Beecham v. Commonwealth, 657 S.W.2d 234, 236 (Ky. 1983). However, "[c]ompliance with the time requirements of CR 73.02 is mandatory[,]" Stinson v. Stinson, 381 S.W.3d 333, 336 (Ky. App. 2012), and because the appellant has failed to comply with CR 73.02 here, this is fatal to his appeal. For the foregoing reasons, appeal number 2014-CA-001836-MR shall be, and is hereby ORDERED, dismissed.
ALL CONCUR. ENTERED: February 5, 2016
/s/ Denise G. Clayton
Judge, Court of Appeals BRIEF FOR APPELLANT: Jason Dewayne Reed, Pro se
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky