ARNOLD (ALFRED) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 12, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000235-MR
ALFRED ARNOLD
v.
APPELLANT
APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE JANET J. CROCKER, JUDGE
ACTION NO. 06-CR-00040
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, MOORE, AND VANMETER, JUDGES.
VANMETER, JUDGE: Alfred Arnold appeals from an order of the Allen Circuit
Court denying his motion for return of property seized as evidence by the police.
For the following reasons, we affirm.
In April 2007, pursuant to a plea agreement with the Commonwealth,
Arnold entered a guilty plea to fleeing or evading police in the first degree and
receiving stolen property over $300. As part of the plea agreement, Arnold
agreed to forfeit “any and all evidence seized incident to this matter, unless
specifically agreed otherwise.” When Arnold came back before the trial court for
final sentencing, he claimed for the first time that certain property seized should be
returned to him. As a basis for that motion, he argued that because the indictment
only identified four of numerous items seized as stolen, the remaining seized items
were not evidence and were not included in the plea agreement.
In response to Arnold’s pro se oral motion, the Commonwealth moved to
withdraw the plea and continue sentencing on the basis that Arnold was accepting
the benefit of the plea agreement but was rejecting portions of it. The trial court
denied the Commonwealth’s motion and passed Arnold’s oral motion for return of
property, subject to reconsideration upon filing a written motion. A final judgment
was entered against Arnold on June 26, 2007.
In June 2008, Arnold filed a pro se motion for return of property. The
Commonwealth filed a response and the trial court set a hearing for July 15, 2008,
but did not issue a transport order. The trial court denied Arnold’s motion for
return of property, without a hearing, on the basis that the June 2007 judgment was
final. This order was entered on July 16, 2008.
Two months later, Arnold filed a pro se notice of appeal from the trial
court’s July 2008 order. The court clerk returned the notice of appeal to him since
criminal appeals are required to be filed within 30 days after the judgment is
entered. RCr1 12.04. Thereafter, by letter entered into the record on September 25,
2008, Arnold claimed that he was unaware a judgment had been entered against
1
Kentucky Rules of Criminal Procedure.
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him on the motion for return of property. On October 27, 2008, Arnold tendered
pro se a second notice of appeal and filed a motion for a belated appeal, which was
granted. This court then entered an order remanding the matter to the trial court
for an evidentiary hearing to determine whether Arnold implicitly or explicitly
waived his right to appeal.
The trial court conducted a hearing and entered findings of fact and
conclusions of law on August 28, 2009, holding that Arnold explicitly waived his
right to a belated appeal. On October 2, 2009, Arnold, by counsel, filed a motion
to supplement the motion for a belated appeal. By order entered November 9,
2009, this court granted Arnold’s motion to supplement the motion for a belated
appeal and granted his motion for a belated appeal. This matter is now before us
for review.
Arnold’s sole claim of error is that the trial court violated state and federal
due process by denying his pro se written motion for return of property without a
hearing. However, we decline to address the substantive nature of Arnold’s claim
since our review of the record reveals that Arnold’s June 2008 written motion for
return of property was filed over a year after entry of the trial court’s June 2007
order, which expressly states, “oral motion for return of property passed subject to
reconsideration upon filing of written motion.” Arnold’s written motion for return
of property was in effect a motion under CR2 59.05 to alter or amend the June 2007
order, which motion the trial court was procedurally barred from addressing since
it had been filed after the expiration of ten days from entry of the trial court’s
2
Kentucky Rules of Civil Procedure.
-3-
order. See CR 59.05 (“[a] motion to alter or amend a judgment, or to vacate a
judgment and enter a new one, shall be served not later than 10 days after entry of
the final judgment.”). See also Commonwealth v. Newsome, 296 S.W.2d 703, 705
(Ky. 1956) (holding that petitioner’s motion to reconsider a petition for writ of
error coram nobis was in effect a motion under CR 59.05 to alter or amend the
order dismissing the petition, which motion the trial court had no power to
entertain and act upon since filed after the expiration of 10 days from entry of
judgment). We further note that the trial court made it abundantly clear to Arnold
and his counsel during final sentencing that the court would not entertain Arnold’s
claim for return of property until a written motion was filed. Finally, the fact that
the trial court’s decision to deny Arnold’s written motion was based upon different
reasoning (i.e., on the basis that the June 2007 judgment was final) does not alter
our result since well-settled is the rule that an appellate court may affirm a lower
court for any reason supported by the record. See McCloud v. Commonwealth, 286
S.W.3d 780, 786 n.19 (Ky. 2009).
The order of the Allen Circuit Court is affirmed.
CAPERTON AND MOORE, JUDGES, CONCUR IN RESULT
ONLY.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Brandon Neil Jewell
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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