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Harper v. Commonwealth

Commonwealth of Kentucky Court of Appeals
Aug 16, 2019
NO. 2019-CA-000541-MR (Ky. Ct. App. Aug. 16, 2019)

Opinion

NO. 2019-CA-000541-MR

08-16-2019

CANON HARPER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

ATTORNEY FOR APPELLANT: J.P. Ward, Jr. Louisville, Kentucky ATTORNEY FOR APPELEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky


NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HON. ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 15-CR-002253 OPINION AND ORDER
DISMISSING

** ** ** ** ** ** ** **

BEFORE: ACREE, KRAMER AND NICKELL, JUDGES. NICKELL, JUDGE: On April 5, 2019, appellant filed a notice of appeal stating he was appealing the Jefferson Circuit Court order entered on March 7, 2019, denying his motion to withdraw his guilty plea. On April 16, 2019, this Court entered an order directing appellant to show cause why this appeal should not be dismissed as interlocutory as a final and appealable order had not been entered. Appellant filed a response to the show cause order arguing that this Court should apply the relation forward doctrine and allow the appeal to proceed.

"A final order or judgment is one 'adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02.' CR 54.01. In a criminal case, this is ordinarily the judgment of conviction and sentence, or a similarly named document." Cassetty v. Commonwealth, 495 S.W.3d 129, 132 (Ky. 2016).

Kentucky Rules of Civil Procedure.

"The rule of relation forward allows a premature notice of appeal to invoke the appellate court's jurisdiction," as the notice of appeal serves the purpose of CR 73.02, giving timely notice of the intent to appeal. Id. at 133 (citing Johnson v. Smith, 885 S.W.2d 944 (Ky. 1994)). "[T]he rule does 'not permit a notice of appeal from a clearly interlocutory decision . . . to serve as a notice of appeal from the final judgment.'" Id. (quoting FirsTier Mortgage v. Investors Insurance Co., 498 U.S. 269, 276, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991)). Instead, the relation forward rule

applies to "the unskilled litigant who files a notice of appeal from a decision that he reasonably but mistakenly believes to be a final judgment, while failing to file a notice of appeal from the actual final judgment." With respect to a clearly interlocutory order: "A belief that such a decision is a final judgment would not be reasonable."
Id. at 133-34 (quoting FirsTier Mortgage, 498 U.S. at 276, 111 S.Ct. 648). Relation forward "applies only where the notice of appeal identifies a technically 'nonfinal order [that] would be appealable if followed by the formal entry of judgment.'" Id. at 134 (quoting Board of Regents of Western Kentucky University v. Clark, 276 S.W.3d 819, 821 (Ky. 2009)).
In other words, it applies to the type of decision that would result in a final judgment but for some technicality staying the court's hand, such as the filing of a post-trial motion tolling finality of the court's judgment. In such instances, the relevant final judgment is readily ascertainable because the order or judgment identified in the notice of appeal is either directly related to the final order (as in the case with post-judgment orders) or in fact becomes the final judgment (as in the case of judgments made temporarily interlocutory by post-judgment motions).
Id. Thus, the relation forward applies where a post-judgment motion has been properly filed.

Relation forward also applies to notices of appeals filed after a bench ruling, but prior to entry of an order or judgment. In Wright v. Ecolab, Inc., 461 S.W.3d 753, 759 (Ky. 2015), the Supreme Court of Kentucky set forth the United States Supreme Court's construction of the federal relation forward doctrine:

[A] premature notice of appeal does not ripen until judgment is entered. Once judgment is entered, the Rule treats the notice of appeal "as filed after such entry[.]"...it permits a premature notice of appeal from [a] bench ruling to relate forward to judgment and serve as an effective notice of appeal from the final judgment.
Id. (quoting FirsTier Mortgage, 498 U.S. at 275, 111 S.Ct. 648).

The relation forward doctrine does not apply to the facts of this case. This case does not involve a post-judgment motion or an appeal from a bench ruling that simply had not been reduced to an order. Appellant filed a notice of appeal from an order denying his motion to withdraw his guilty plea which is simply not a final and appealable order but, rather, a clearly interlocutory order. While appellant directs this Court to the dissenting opinion in Wright v. Swigart, 2012-CA-001956, 2013 WL 424662 (Ky. App. Aug. 16, 2013), the Court of Appeals' majority opinion dismissing the case was affirmed by the Supreme Court of Kentucky in Wright v. Ecolab, Inc. supra. "As an intermediate appellate court, this Court is bound by the published decisions of the Kentucky Supreme Court. SCR 1.030(8)(a)." Kindred Healthcare, Inc. v. Henson, 481 S.W.3d 825, 829 (Ky. App. 2014).

Rules of the Supreme Court of Kentucky --------

Having considered appellant's response, and being otherwise sufficiently advised, this Court holds that appellant has demonstrated INSUFFICIENT CAUSE to prevent the dismissal of this appeal. Therefore, this Court ORDERS that the above-styled appeal be hereby DISMISSED. ENTERED: AUGUST 16, 2019

/s/_________

JUDGE, COURT OF APPEALS ATTORNEY FOR APPELLANT: J.P. Ward, Jr.
Louisville, Kentucky ATTORNEY FOR APPELEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky


Summaries of

Harper v. Commonwealth

Commonwealth of Kentucky Court of Appeals
Aug 16, 2019
NO. 2019-CA-000541-MR (Ky. Ct. App. Aug. 16, 2019)
Case details for

Harper v. Commonwealth

Case Details

Full title:CANON HARPER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court:Commonwealth of Kentucky Court of Appeals

Date published: Aug 16, 2019

Citations

NO. 2019-CA-000541-MR (Ky. Ct. App. Aug. 16, 2019)