GARY M. AULT v. COMMONWEALTH OF KENTUCKY
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RENDERED:
August 16, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001042-MR
GARY M. AULT
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 96-CR-002162
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, GUDGEL, AND KNOPF, JUDGES.
KNOPF, JUDGE:
Gary M. Ault appeals from an April 5, 2001, order
by the Jefferson Circuit Court which denied his RCr 11.42 motion
as untimely.
He contends that the Commonwealth had agreed to
waive any objection to the timeliness of his motion.
We find
that if the Commonwealth made such an agreement, the trial court
would have jurisdiction to consider the merits of the motion
despite its untimeliness.
Hence, we vacate the trial court’s
order and remand for further proceedings.
On August 27, 1997, Ault entered a guilty plea to the
charges of second degree manslaughter;1 six counts of wanton
endangerment in the first degree;2 two counts of criminal
mischief in the first degree;3 and one count each of operating a
motor vehicle under the influence of intoxicants, first offense
(DUI 1st),4 and operating a motor vehicle on a suspended or
revoked licence.5
The charges stemmed from an August 10, 1996,
incident in which Ault, while he was driving a car under the
influence of alcohol, drove the wrong way on Interstate 64 in
Louisville.
He narrowly missed and sideswiped several vehicles,
and then collided with another vehicle, causing the death of the
driver, Richard Melson.
On October 6, 1997, the trial court
sentenced Ault to ten years for manslaughter, three years on each
count of wanton endangerment and criminal mischief, and six
months for driving on a suspended or revoked licence.
The trial
court merged the DUI 1st penalty with the manslaughter sentence.
It further directed that the three-year sentences would run
concurrently with each other but consecutive to the manslaughter
sentence, for a total of thirteen years.
Ault’s later motion for shock probation.
1
KRS 507.040.
2
KRS 508.060.
3
KRS 512.820.
4
KRS 189A.010.
5
KRS 186.620.
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The trial court denied
In August of 2000, Ault retained new counsel to
represent him on a motion to alter, amend or vacate the
conviction pursuant to RCr 11.42.
However, his counsel initially
concluded that the motion would not be timely, miscalculating the
three-year period from the date that Ault entered his guilty plea
rather than from the date of his sentencing.
Counsel avers that
he met with the prosecutor upon discovering the error.
The
prosecutor allegedly agreed that he would not oppose a motion to
enlarge the time for filing Ault’s RCr 11.42 motion.
Pursuant to
this agreement, the trial court entered an order extending the
deadline for filing the motion until January 1, 2001.
Ault filed his RCr 11.42 motion on December 29, 2000,
alleging ineffective assistance of trial counsel.
In its
response, the Commonwealth argued, among other things, that the
motion had not been filed within three years after the judgment
became final.
The trial court agreed and, by order entered on
April 5, 2001, it denied the motion.
Thereafter, in a motion to
reconsider, Ault pointed out the prosecutor’s agreement and the
trial court’s prior order extending the time for filing the
motion.
However, prior to the trial court ruling on this
motion, Ault’s counsel filed a notice of appeal from the court’s
April 5, 2001, order.
Ault then filed a motion with this Court,
asking that the matter be remanded back to the trial court for an
evidentiary hearing.
The Commonwealth opposed the motion,
contending that the circuit court no longer had jurisdiction
following the filing of the notice of appeal, and that even if
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there were an agreement to extend the time for filing the RCr
11.42 motion, the trial court had no authority to extend the time
for filing.
This Court denied the motion to remand on September
14, 2001.
In 1994, our Supreme Court added subsection 10 to RCr
11.42.
That section provides in pertinent part:
Any motion under this rule shall be filed
within three years after the judgment becomes
final, unless the motion alleges and the
movant proves either:
(a) that the facts upon which the claim is
predicated were unknown to the movant and
could not have been ascertained by the
exercise of due diligence; or
(b) that the fundamental constitutional right
asserted was not established within the
period provided for herein and has been held
to apply retroactively.
There is no dispute that the three-year time limit for
filing a RCr 11.42 motion is mandatory.
Rather, the central
question in this case is whether the time limit is jurisdictional
and cannot be waived.
The Commonwealth compares the time limit
in RCr 11.42(10) to the thirty-day period allowed for filing a
notice of appeal under RCr 12.04(3).
Like the latter time-limit,
the Commonwealth asserts that the three-year time limit is
jurisdictional and cannot be waived or extended by agreement or
by an order of the trial court.
Since jurisdiction cannot be
conferred by agreement of the parties,6 the Commonwealth contends
that even if the prosecutor had agreed not to oppose an extension
of time, the trial court would not have jurisdiction to entertain
the merits of the RCr 11.42 motion.
6
In contrast, Ault argues
Demoss v. Commonwealth, Ky. App., 765 S.W.2d 30, 32 (1989).
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that the time limit is not jurisdictional, and therefore could be
waived by the prosecutor’s agreement and by the trial court’s
order.
We disagree with the Commonwealth that the time
provided for filing a RCr 11.42 motion is jurisdictional and
cannot be extended.
First, the courts’ jurisdiction is
prescribed by the Kentucky Constitution, not by the rules of
procedure.
While the courts have the authority to deny or
dismiss an appeal if the rules are not followed, the courts have
no power to create or deny jurisdiction.
Thus, the time-limit
provided under the rules does not create jurisdiction, but only
prescribes the method by which the jurisdiction of an appellate
court is invoked.7
Moreover, this matter does not involve the filing of a
notice of appeal, but the filing of a motion to alter, amend or
vacate a judgment of conviction under RCr 11.42.
The clear
language of the rule allows for exceptions from the mandatory
three-year limit on filing a motion for relief.
Although there
is no allegation that any of the exceptions apply in this case,
their inclusion indicates that the Supreme Court intended to
allow for waiver of the time limit under certain circumstances.
Such an intention is inconsistent with the Commonwealth’s
argument that the time limit is jurisdictional.
Consequently, we conclude that the trial court
improperly denied Ault’s RCr 11.42 motion as untimely.
Ault
asserts that the prosecutor agreed not to oppose his RCr 11.42
7
Johnson v. Smith, Ky., 885 S.W.2d 944, 949-50 (1994).
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motion on the grounds that it was untimely.
The Commonwealth
does not concede that such an agreement existed.
Nonetheless,
the existence of such an agreement by the Commonwealth is an
issue of fact which, if proven, could justify the trial court’s
consideration of the merits of Ault’s untimely motion.
The Commonwealth further asserts that even if the
prosecutor had made such an agreement, Ault would not be
prejudiced by the Commonwealth’s failure to perform it because
his motion would still have been untimely at the time the
agreement was made.
However, we find that a showing of unfair
prejudice is not necessary in this case.
Where the Commonwealth
has agreed not to object to an untimely motion under RCr 11.42,
the Commonwealth will be held to that agreement.8
Moreover, the
prosecutor’s representations apparently induced the trial court
to sign an order granting the motion for an extension of time.9
Although the trial court’s decision to grant Ault’s motion for an
extension of time was not based upon any of the exceptions set
out in RCr 11.42(10), that order is not the subject of this
appeal.
So long as Ault is able to prove the existence of an
agreement with the Commonwealth to waive any objection to the
8
Workman v. Commonwealth, Ky., 580 S.W.2d 206, 207 (1979), overruled on other
grounds Morton v. Commonwealth, Ky., 817 S.W.2d 218 (1991). See also Matheny v.
Commonwealth, Ky., 37 S.W.3d 756, 758 (2001); Commonwealth v. Reyes, Ky., 764 S.W.2d
62, 68 (1989).
9
We do note that there appear to be some irregularities with this order as well. As noted
above, the trial court allowed Ault until January 1, 2001, to file his RCr 11.42 motion. But while
the order is signed by the trial judge, it is not dated, and there is no indication that it was entered
until May 7, 2001, when it was filed as an attachment to Ault’s motion to reconsider. Yet even if
the order was not properly entered, it may still serve as evidence of the existence of an agreement
between Ault and the Commonwealth.
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timeliness of his RCr 11.42 motion, he is entitled to proceed on
the merits of his motion.
Accordingly, the order of the Jefferson Circuit Court
denying Ault’s RCr 11.42 motion is vacated, and this matter is
remanded for further proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Christopher N. Lasch
Goodwin & Lasch
Louisville, Kentucky
Albert B. Chandler, III
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
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