SANDERS-EL (JUAN) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 22, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001964-MR
JUAN SANDERS-EL
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE W. DOUGLAS KEMPER, JUDGE
ACTION NO. 02-CR-002491
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND VANMETER, JUDGES.
VANMETER, JUDGE: Juan Sanders-El (Sanders) appeals pro se from the
Jefferson Circuit Court order denying his petition for a writ of mandamus to
compel a public attorney to prosecute Sergeant Clarence Marthet for burglary,
perjury, and official misconduct. For the following reasons, we affirm.
In 2002, the Jefferson County Police arrested Sanders outside of his
residence after his prior convictions of assault and manslaughter were affirmed on
appeal and his bond was revoked. Under the belief that Sanders was a suspect in a
recent, unrelated shooting incident, Sgt. Marthet obtained a warrant to search
Sanders’ residence for evidence related to the shooting. During this search, the
officers discovered sixty-five marijuana plants, grow lights, and money, and then
obtained a second warrant to search and seize these items.
In 2006, after denying Sanders’ motion to suppress evidence seized
from the search, the Jefferson Circuit Court entered a final judgment based on a
jury verdict finding Sanders guilty of planting, cultivating, or harvesting with
intent to sell or transfer marijuana; illegal use or possession of drug paraphernalia;
and persistent felony offender in the second degree. The court sentenced Sanders
to ten years’ imprisonment. On appeal, a panel of this court affirmed his
conviction and sentence.1
In 2010, Sanders filed pro se a complaint alleging that Sgt. Marthet
burglarized his home by entering without a valid warrant, committed perjury to
obtain the search warrant, and acted with official misconduct. The Attorney
General declined to prosecute. Sanders then filed pro se a petition for a writ of
mandamus in the Jefferson Circuit Court to order the Commonwealth Attorney or
County Attorney to prosecute, which the circuit court denied as procedurally and
jurisdictionally deficient. This appeal followed.
1
Sanders v. Commonwealth, 2008-WL-2219789 (Ky.App., May 30, 2008).
-2-
On appeal, Sanders claims that the circuit court erred by denying the
petition for a writ of mandamus to compel a public attorney to prosecute his case.
We disagree.
This court reviews the denial of a petition for a writ of mandamus for
an abuse of discretion. Owens v. Williams, 955 S.W.2d 196, 197 (Ky.App. 1997).
An abuse of discretion occurs if the court’s decision was “arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Campbell v. Commonwealth,
316 S.W.3d 315, 318 (Ky.App. 2009) (citation omitted).
Mandamus is an extraordinary remedy which compels the
performance of a duty or act where a clear legal right exists or no adequate remedy
at law. Sowders v. Lewis, 241 S.W.3d 319, 321 (Ky. 2007). Mandamus does not
lie to compel discretion in how a duty is carried out. Kaufman v. Humphrey, 329
S.W.2d 575, 576 (Ky. 1959) (citations omitted). The decision to initiate a
prosecution rests with the prosecutor, in the executive branch of government.
Hoskins v. Maricle, 150 S.W.3d 1, 12 (Ky. 2004). The “[e]xecutive branch has
exclusive authority and absolute discretion to decide whether to prosecute a case.”
Id. (citation omitted). A court does not have the power to tell prosecutors which
crimes to prosecute or when to prosecute them. Id. at 20. Accordingly, the circuit
court in this case did not abuse its discretion by denying the petition for a writ of
mandamus to compel the Commonwealth Attorney or the County Attorney to
prosecute Sanders’ case.
The order of the Jefferson Circuit Court is affirmed.
-3-
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Juan Sanders-El, Pro se
West Liberty, Kentucky
Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
-4-
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