Opinion
NO. 2014-CA-001267-MR
03-18-2016
ANTHONY L. MCALISTER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Anthony McAlister, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Nathan T. Kolb Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HENRY CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 09-CR-00071 OPINION
REVERSING AND REMANDING BEFORE: J. LAMBERT, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Anthony McAlister, pro se, appeals from the dismissal of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion as procedurally time barred.
McAlister pled guilty to fourteen counts of sodomy resulting in a total sentence of twenty-years' incarceration. The circuit court's judgment and sentence on plea of guilty was entered on May 13, 2011. No appeal was filed.
In May 2014, McAlister completed preparation of his motion to vacate sentence pursuant to RCr 11.42 and accompanying memorandum, motion for public defender, affidavit of indigency and motion to proceed in forma pauperis. The notices of mailing and certifications in these documents were dated May 5, 2014. Because McAlister is incarcerated at the Kentucky State Reformatory in LaGrange, his motion, accompanying memorandum and other documents he submitted had to be delivered to prison officials for mailing, but the date upon which these materials were submitted to prison officials and when they were actually placed in the mail by prison officials is not documented in the record.
On May 14, 2014, McAlister's RCr 11.42 motion was stamped as filed with the Henry County Circuit Court. This filing date is one day beyond the three-year statute of limitations for RCr 11.42 motions as calculated in accordance with KRS 446.030(1)(a). See Gailor v. Alsabi, 990 S.W.2d 597, 599-600 (Ky. 1999) (calculating cause of action with two-year limitation period arose on February 4, 1992, and expired on February 4, 1994).
The case history in the record does not list McAlister's motion to vacate as having been filed and it does not appear in the record before this Court. The memorandum of law and facts in support of motion to vacate sentence pursuant to RCr 11.42, consisting of 34 pages, does appear in the record. As an exhibit to McAlister's brief, he submitted a certified copy of the circuit court case history for this case dated August 4, 2014; it lists a motion to vacate, along with the memorandum, motion for public defender, affidavit of indigency and motion to proceed in forma pauperis, as all having been filed on May 14, 2014. McAlister argues that he mailed his motion to vacate and does not understand why it is not part of the record. It appears that upon receipt perhaps the circuit court considered his memorandum as also constituting his motion, but then corrected itself when submitting the record on appeal on August 26, 2014, after having added page numbers to the case history and not finding this document in the record. As the circuit court did not dismiss McAlister's motion for lack of submission of a motion to vacate, we assume one was properly filed or that the circuit court chose to treat his memorandum as his motion because he filed it pro se. --------
On June 27, 2014, the circuit court dismissed McAlister's motion as untimely for being past the RCr 11.42 deadline and not qualifying for either RCr 11.42(10) exception to extend the deadline. It also concluded the RCr 12.04(5) "mailbox exemption" only applies to the deadlines for appeals and did not apply to McAlister's RCr 11.42 motion. The circuit court did not consider whether equitable tolling applied.
In a letter filed on July 11, 2014, McAlister subsequently requested from the circuit court a record copy of the envelope used to mail his motions to the court that were filed on May 14, 2014. On the bottom of the letter, the circuit court clerk responded "we don't have the envelope for the motion filed on 5/14/14. It was thrown away when the mail was processed." McAlister then filed a notice of appeal.
McAlister argues the circuit court erred in dismissing his motion as untimely because: (1) it should have applied the prison mailbox rule or equitable tolling to determine the motion was filed when submitted to prison officials for mailing; (2) the motion was actually timely received by the clerk on May 13, 2014, but not stamped as filed until the following day; and (3) his deadline for filing the motion did not expire because he was never served with a notice of original judgment. "[W]e review the trial court's factual findings only for clear error, but its application of legal standards and precedents . . . , we review de novo." Commonwealth v. Pridham, 394 S.W.3d 867, 875 (Ky. 2012).
McAlister argues his motion was timely filed pursuant to the prison mailbox rule or equitable tolling because he turned over his notarized RCr 11.42 motion to vacate to prison authorities to be mailed to the Henry Circuit Court Clerk's Office on May 9, 2014, a few days before the three-year deadline for his RCr 11.42 motion expired. In support of his argument, McAlister attached an exhibit of a photocopy of what he claims is the Kentucky State Reformatory in LaGrange's outgoing legal mail log.
There are two entries listed in the log. Each entry is dated May 9, 2014, lists McAlister's name and prison number, and has an outgoing date of May 12, 2014. One entry is listed as going to the Henry County Circuit Court and the other entry is listed as going to the Commonwealth Attorney. Although we cannot consider evidence outside of the record to establish when McAlister's motion was submitted to prison officials and placed in the mail, McAlister has provided support for his allegation that he submitted his motion to prison officials on May 9, 2014 and any delay in its filing was attributable to them.
In Robertson v. Commonwealth, 177 S.W.3d 789 (Ky. 2005) overruled on other grounds by Hallum v. Commonwealth, 347 S.W.3d 55 (Ky. 2011), the Kentucky Supreme Court considered whether an inmate's untimely filing of an RCr 11.42 motion due to a delay in mailing by prison officials could be excused either through adoption of the prison mailbox rule or equitable tolling. It rejected adoption of the prison mailbox rule but decided to adopt the Dunlap v. United States, 250 F.3d 1001 (6th Cir. 2001), equitable tolling test. Robertson, 177 S.W.3d at 792. Because three of the five Dunlap factors were already incorporated into RCr 11.42(10), the Supreme Court focused on the remaining factors of diligence and prejudice. Robertson, 177 S.W.3d at 792.
In applying the diligence and prejudice factors to Robertson, the Supreme Court opined as follows:
If, indeed, Appellant delivered a properly prepared and properly addressed motion to the appropriate prison authorities prior to the expiration of the three-year limitation period, [he was diligent because] he did all that could reasonably be expected to get the motion to its destination within the required time limit. . . . [The prejudice factor] ordinarily would not militate against equitable tolling under these circumstances, because there would seem to be no more prejudice to the Commonwealth to permit Appellant to proceed with his motion than if the motion had actually been received and filed [timely] by the [clerk].Id. (internal quotations, citations and brackets omitted). The Supreme Court decided the appropriate remedy under these circumstances was to reverse and remand for an evidentiary hearing on the issue of equitable tolling to determine "whether Appellant actually delivered a properly prepared and addressed RCr 11.42 motion to the appropriate . . . prison authorities for mailing prior to the expiration of the limitation period." Id. at 792.
In 2011, Kentucky adopted the prison mailbox rule for notices of appeal in criminal cases through the amendment of RCr 12.04. RCr 12.04(5) provides as follows:
If an inmate files a notice of appeal in a criminal case, the notice shall be considered filed if its envelope is
officially marked as having been deposited in the institution's internal mail system on or before the last day for filing with sufficient First Class postage prepaid.
Subsequently, in Hallum v. Commonwealth, 347 S.W.3d 55 (Ky. 2011), the Kentucky Supreme Court considered whether RCr 12.04(5) should be applied retroactively to two inmates filing notices of appeal. After determining RCr 12.04(5) should be applied retroactively, the Supreme Court went on to address the continued applicability of the equitable tolling test in light of RCr 12.04(5):
With the recent enactment of the prison mailbox rule, the burdensome equitable tolling test is now duplicative and superfluous, with its utility marginalized. "Equity is the correction of that wherein the law, by reason of its universality, is deficient." Houston v. Steele, 28 S.W. 662, 663 (Ky. 1894). The prison mail box rule was crafted to remedy the procedural deficiency our rules posed to pro se inmates seeking to appeal; thus, there is no longer a need for Robertson's equitable tolling provision. Consequently, we overrule Robertson.Hallum, 347 S.W.3d at 59.
This ruling spawned confusion because RCr 12.04(5) only applied to prisoners filing notices of appeal, while in the Robertson decision equitable tolling was applied to an inmate filing a RCr 11.42 motion. Although equitable tolling is superfluous to inmates covered by RCr 12.04(5), in a series of unpublished opinions, the Court of Appeals reasoned the Kentucky Supreme Court did not intend to overrule Robertson's adoption of equitable tolling for inmates filing RCr 11.42 motions. See Anderson v. Commonwealth, No. 2012-CA-001869-MR, 2014 WL 812886, 4 (Ky.App. 2014) (unpublished); Treat v. Commonwealth, No. 2010- CA-002220-MR, 2012 WL 1886512, 2 (Ky.App. 2012) (unpublished); Kollros v. Commonwealth, No. 2011-CA-002081-MR, 2012 WL 4839557, 1 (Ky.App. 2012) (unpublished). We rely on the reasoning of these unpublished decisions pursuant to Kentucky Rules of Civil Procedure (CR) 76.28(4)(c).
The Court of Appeals expressed this reasoning as follows in Treat:
The Kentucky Supreme Court in Hallum overruled Robertson based upon the subsequent adoption of "the prison mailbox rule," which eliminated the need for the equitable tolling doctrine for those specific cases. Hallum, 347 S.W.3d at 58. Hallum, however, did not prohibit the application of the tolling doctrine to RCr 11.42 motions that do not involve the prison mailbox rule. Therefore, we conclude that the equitable tolling doctrine still applies to post-convictions proceedings that meet strict standards of tolling relief.Treat, 2012 WL 1886512 at 2. In Anderson, 2014 WL 812886 at 5, the Court of Appeals suggested the adoption of the prison mailbox rule to both notices of appeal and RCr 11.42 motions would "yield the most equitable, reasonable and fair result" but applied equitable tolling. We note that additional unpublished cases express uncertainty as to whether the equitable tolling doctrine continues to apply to post-conviction motions after the Hallum decision. Roach v. Commonwealth, No. 2011-CA-001319-MR, 2015 WL 1450831, 6 (Ky.App. 2015) (unpublished); Christian v. Commonwealth, No. 2011-CA-001288-MR, 2012 WL 6213775, 2-3 (Ky.App. 2012) (unpublished).
The circuit court was correct in its determination that the prison mailbox rule contained in RCr 12.04(5) does not apply to McAlister's filing of his RCr 11.42 motion. However, in accordance with Treat, Anderson and Kollros, we determine the circuit court erred by failing to determine whether equitable tolling applied to McAlister's submission of his motion before deciding whether dismissal was warranted. Because McAlister has alleged his motion was timely placed in the prison mail system, but there is no record evidence upon which we can determine if that is true, we follow the procedure outlined in Robertson, 177 S.W.3d at 793, and reverse and remand for an evidentiary hearing to determine whether McAlister can establish his right to relief pursuant to equitable tolling. Compare with Anderson, 2014 WL 812886 at 5 (reversing without an evidentiary hearing because "the record reveals that proof has clearly been provided to indicate that the RCr 11.42 motion was placed in the prison mail system prior to the expiration of the three-year time limit").
McAlister's remaining arguments are both superfluous and without merit. McAlister has no evidence to support his supposition that his motion was timely received by the clerk on May 13, 2014, but not stamped as filed until the following day. While McAlister provides evidence that other mailings from the prison have arrived the day after they were sent, this is not proof as to when this particular item arrived. The circuit court did not clearly err in making a factual finding that McAlister's motion was filed on May 14, 2014.
McAlister is incorrect that the deadline for filing his motion did not expire because he was never served with a notice of original judgment. Because McAlister pled guilty, there was no requirement that he be served with a written judgment. RCr 12.06(3).
Accordingly, we reverse the Henry Circuit Court's dismissal of McAlister's RCr 11.42 motion and remand for an evidentiary hearing to determine whether equitable tolling applies.
ALL CONCUR. BRIEFS FOR APPELLANT: Anthony McAlister, Pro Se
LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Nathan T. Kolb
Assistant Attorney General
Frankfort, Kentucky