MARK JOHNSON V. COMMONWEALTH OF KENTUCKY
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AS MODIFIED:. MAY 31, 2000
RENDERED: MARCH 23,200O
TO BE PUBLISHED
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1998-SC-0180-MR’;
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MARK JOHNSON
V.
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
97-CR-325
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
DISMISSING APPEAL AND REMANDING
Following a trial by jury in the Campbell Circuit Court, Appellant Mark Johnson
was convicted of arson in the first degree. He waived the sentencing phase of the trial
and was subsequently sentenced to twenty years in prison. He appeals to this Court as
a matter of right. Ky. Const. § 110(2)(b). We have determined that the appeal was
prematurely filed and must be remanded for a ruling on Appellant’s post-trial motions
and for an evidentiary hearing on the issue of his competency to stand trial. The
relevant events as they occurred in the trial court are as follows:
November 24. 1997: A verdict of guilty was returned by the jury. Appellant
waived the jury sentencing phase of his trial pursuant to an agreement that he would be
sentenced to no more than the minimum sentence of twenty years. KRS 513.020(2).
December 4. 1997: An Order was entered setting final sentencing for January
12, 1998.
December 4. 1997: Appellant filed a motion for a new trial on grounds of newly
discovered evidence premised upon the affidavit of a witness who claimed to possess
exculpatory evidence, and defense counsel’s assertion that he had obtained newly
discovered evidence which would impeach the credibility of a witness who testified at
trial.
December 18. 1997: Appellant filed a supplemental motion for a new trial on
grounds of additional newly discovered evidence, a: the contents of a post-trial letter
to Appellant from his wife.
December 30. 1997: Appellant filed a motion for “a new trial and an order of
dismissal notwithstanding the verdict” on grounds that defense counsel had become
aware “that perhaps the Defendant was not capable of assisting his defense or
appreciating the nature and consequences of the proceedings against him.”
January 13. 1998: An “Order of Mental Examination” was entered, reciting that
the trial judge had “reasonable grounds to believe that the Defendant may be
incompetent” and ordering the Kentucky Correctional Psychiatric Center (KCPC) to
examine Appellant and file a report with respect to both Appellant’s competency to
stand trial and his criminal responsibility at the time of the offense. The Order further
provided that upon receipt of the report, an evidentiary hearing would be held on the
issue of competency at which both parties would be permitted to cross-examine the
examining physician. KCPC subsequently delegated the duty to examine Appellant to
the Comprehensive Care Centers of Northern Kentucky.
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January 16. 1998: Appellant filed another supplementary motion for a new trial
on grounds of newly discovered evidence premised upon the affidavit of the owner of
the damaged building that the fire caused only minor damage, and the affidavit of a
cousin of Appellant’s wife stating his belief that Appellant’s wife and her boyfriend had
conspired to set the fire.
February 19. 1998: Dr. George W. Rogers, Jr., of Comprehensive Care Centers
of Northern Kentucky, filed a report stating that, pursuant to the Order of January 13,
1998, he had examined Appellant at the Campbell County Detention Center and was of
the opinion that Appellant was competent to stand trial. However, Dr. Rogers
recommended that Appellant be further evaluated at KCPC with respect to his criminal
responsibility at the time of the offense.
March 2. 1998: A final sentencing hearing was held at which the trial judge
considered both Dr. Rogers’s report and the presentence investigation report prepared
by the division of probation and parole, but did not hold a formal evidentiary hearing.
The trial judge expressed his intent to follow Dr. Rogers’s recommendation for a full
psychiatric evaluation.
I’m most concerned at this point, Mr. Johnson with your mental status. . .
I don’t really doubt your statement, Mr. Johnson, that you believe that you
didn’t do this. . . . I do believe that in your head and in your mind, you
don’t think that you did this. . . . And that’s why I want to get this
psychiatric evaluation done.
Judgment was entered on the same day adjudging Appellant guilty of arson in the first
degree and sentencing him to twenty years in prison. The judgment concluded with the
following paragraph:
IT IS FURTHER ORDERED that the Defendant be transferred to
the Kentucky Correctional Psychiatric Center as soon as practicable for
further evaluation and psychiatric care. Defendant’s motion for New Trial
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herein or Judgment Notwithstanding the Verdict shall be treated as if filed
post-sentencing and shall remain under submission and no appeal time
shall run until the psychiatric report of February 19, 1998 is updated by
the Kentucky Correctional Psychiatric Center.
March 3. 1998: The following documents were entered into the court record: (1)
Notice of Appeal “from the final judgment entered herein;” (2) Designation of Record,
including all pleadings and documents filed in the court record; (3) Order permitting
Appellant to appeal in forma pauperis; (4) Order staying the appeal pending a ruling on
all post-trial motions
April 2, 1998: Certification of record on appeal was completed and filed.
May 29. 1998: Dr. Candace Walker of KCPC filed a report reflecting her
examination and treatment of Appellant and that she found no evidence to support an
insanity defense (and that Appellant had advised her that he did not wish to plead
insanity as a defense). However, she further reported that Appellant suffered from
hypomania, which “could have rendered his communication with his attorney
inadequate for proper preparation and presentation of his defense.”
May 29. 1998: An Order was entered overruling Appellant’s motion for a new
trial or judgment notwithstanding the verdict and ordering that the Order and Dr.
Walker’s report be filed as a supplement to the record on appeal. No supplemental
Notice of Appeal was filed after entry of this Order.
Criminal Rule 10.06( 1) provides as follows:
The motion for a new trial shall be served not later than five (5)
days after return of the verdict. A motion for a new trial based upon the
ground of newly discovered evidence shall be made within one (1) year
after the entry of the judgment or at a later time if the court for good cause
so permits.
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The rule clearly provides that, although a motion for a new trial premised upon
newly discovered evidence may be filed within one year of the judgment, a motion
premised upon any other grounds must be filed within five days of the verdict. None of
Appellant’s four post-verdict motions were filed within five days of the verdict.
The
motion pertaining to his possible incompetency was filed thirty-six days after the verdict
and, thus, too late to raise the issue.
However, a trial judge may order a competency evaluation sua sponte at any
stage of the proceedings if he/she has reasonable grounds to believe that the
defendant is incompetent to stand trial. KRS 504.100(l). Here, the trial judge
specifically found in his written order of January 13, 1998 that there were reasonable
grounds to believe that Appellant was incompetent. He reiterated his concerns during
the final sentencing hearing on March 2, 1998.
Criminal Rule 12.04(3)
provides as follows:
The time within which an appeal may be taken shall be ten (10)
days’ after the date of entry of the judgment or order from which it is
taken, subject to Rule 12.06 [notice of entry], but if a timely motion has
been made for a new trial an appeal from a judgment of conviction may
2
be taken within ten (10) days after the date of entry of the order denying
the motion; provided, however, that in the case of a motion for new trial
made later than five (5) days after return of the verdict, the appeal must
be from the order overruling or denying the motion, and the review on
appeal shall be limited to the grounds timely raised by the motion as
provided by Rule 10.06.3
’ Thirty (30) days, effective January 1, 1999.
2 Thirty (30) days, effective January 1, 1999.
3 As stated supra, the only grounds for a motion for new trial filed later than five
days after the return of the verdict is one premised upon newly discovered evidence.
The appeal from the order overruling such a motion is limited to whether the new trial
should have been granted. No appeal was taken from the order of May 29, 1998 and
the issues raised in Appellant’s motions of December 4 and 18, 1997 and January 16,
1998 have not been raised on appeal.
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Thus, regardless of the issue of competency, the judgment of March 3, 1998 was
not final, because Appellant’s post-trial motions were still pending. The same rule
obtained under the former criminal code. Collins v. Commonwealth, 300 Ky. 258, 188
S.W.2d 432 (1945).
Some jurisdictions hold that an appeal filed by a moving party before a ruling has
been entered on his/her post-judgment motions constitutes an abandonment of those
motions. In re Forfeiture of $104.591 in U.S. Currency, 589 So.2d 283 (Fla. 1991);
Grant v. Federal Land Bank, 586 So.2d 685 (La. Ct. App. 1991). If we subscribed to
that theory, the issue of Appellant’s competency to stand trial would be deemed to have
been abandoned when he filed the notice of appeal. Other jurisdictions hold that the
filing of an appeal is not an abandonment of pending post-judgment motions, but that
the appeal is simply of no effect, i.e., the status of the case remains the same as if no
appeal had been filed. People v. Everage, 712 N.E.2d 830 (Ill. App. Ct. 1999); Bailev v.
Sound Lab. Inc., 694 P.2d 1043 (Utah 1984). If we subscribed to that theory, we would
be forced to dismiss the appeal, because no appeal was taken from the purported final
order of May 29, 1998. However, our approach is somewhat different.
In Commonwealth, Dep’t of Hiahways v. Stamper, Ky., 424 S.W.2d 821 (1967),
the appeal was filed one day before the judgment was entered. It was held (1) the
attempted appeal from the nonexistent judgment did not confer jurisdiction upon the
appellate court, and (2) the subsequent signing and entry of the judgment did not
breathe life into the premature appeal. ld. at 823. The appeal was ordered dismissed,
but the Court did not specifically address the validity of the judgment which had been
entered after the appeal was filed. As a general rule, except with respect to issues of
custody and child support in a domestic relations case, the filing of a notice of appeal
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divests the trial court of jurisdiction to rule on any issues while the appeal is pending.
Hov v. Newbura Homes, Inc., Ky., 325 S.W.2d 301 (1959) (trial judge had no
jurisdiction to enter an order permitting the filing of an amended complaint); Monsour v.
Humohrev, Ky., 324 S.W.2d 813 (1959) (trial judge had no jurisdiction to enter an order
amending the judgment); Louisville & N.R. Co. v. Paul’s Adm’r, 314 Ky. 473, 235
S.W.2d 787 (1950) (trial judge had no authority to supplement the record on appeal).
There is authority permitting a trial judge to rule on a motion filed in a criminal case
while the case is pending on appeal, if the motion raises new issues, a, newly
discovered evidence or ineffective assistance of counsel, which could not have been
the subject of the direct appeal. RCr 10.06(2);
RCr 11.42(l); Wilson v. Commonwealth,
Ky. App., 761 S.W.2d 182 (1988). That exception does not apply here, since all of
Appellant’s post-trial motions were filed before the attempted appeal. Thus, the order
of May 29, 1998 was entered without jurisdiction and is a nullity.
The trial judge’s attempt to stay the appeal was also a nullity. Although a trial
judge has a right to stay the enforcement of his/her own judgments, CR 62.01, CR
62.04, or to extend the time for filing an appeal for ten days under certain
circumstances, CR 73.02(1)(d), Burchell v. Burchell, Ky. App., 684 S.W.2d 296 (1984),
there is no provision permitting a trial judge to stay an appeal after it has been filed.
RCr 10.06(2)
clearly anticipates that only an appellate court has the authority to stay an
appeaL4
4 The reference in RCr 10.06(2) to a stay of appellate proceedings while a trial
court rules on a motion for new trial obviously refers to a motion premised upon newly
discovered evidence filed within one year of the verdict, but after the appeal was filed.
See Wilson v. Commonwealth, supra.
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Since the order of May 29, 1998 was a nullity, we need not decide whether the
trial judge’s failure to hold an evidentiary hearing on the issue of competency was
contrary to the dictates of both his own order of January 13, 1998 and of KRS
504.100(3). But see Mills v. Commonwealth, Ky., 996 S.W.2d 473 (1999), cert. denied,
-U.S. -, 2000 WL 197684 (Feb. 22, 2000); Gabbard v. Commonwealth, Ky., 887
S.W.2d 547 (1994); Clark v. Commonwealth, Ky., 591 S.W.2d 365 (1979). The
Commonwealth’s reliance on Conlev v. Commonwealth, Ky. App., 569 S.W.2d 682
(1978) in this respect is misplaced, as that case was interpreting the version of KRS
504.040 which existed prior to its 1978 amendment and which did not mandate a
hearing on the issue of a defendant’s competency to stand trial. As amended by 1978
Ky. Acts, ch. 290, § 4, KRS 504.040(4) provided that “[alfter the defendant is examined
and the report is filed, the court shall order an evidentiary hearing on the issue of
defendant’s competency to stand trial.” (Emphasis added.) That is the language which
was being interpreted in Clark v. Commonwealth, supra, and which was carried over
into KRS 504.100(3) when KRS 504.040 was repealed and recodifed in 1982. 1982
Ky. Acts, ch. 113, §§ 5, 14. Substantially the same language appears in the present
version of KRS 504.100(3), which was the version being interpreted in Mills v.
Commonwealth, supra, and Gabbard v. Commonwealth, supra.
Accordingly, this appeal is dismissed as premature and this action is remanded
to the Campbell Circuit Court for a ruling on Appellant’s post-trial motions and for an
evidentiary hearing and a ruling on the issue of Appellant’s competency to stand trial.
Lambert, C.J.; Graves, Johnstone, Stumbo and Wntersheimer, JJ., concur.
Keller, J., concurs in part and dissents in part by separate opinion.
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COUNSEL FOR APPELLANT:
Thomas M. Ransdell
Assistant Public Advocate
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
Matthew D. Nelson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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RENDERED: MARCH 23,200O
TO BE PUBLISHED
1998-SC-0180-MR
APPELLANT
MARK JOHNSON
V.
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
97-CR-325
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE KELLER
CONCURRING IN PART AND DISSENTING IN PART
I concur with the majority opinion to the extent that it holds that we should
remand this case to the trial court with instructions for it to hold an evidentiary hearing
regarding Johnson’s competency, but I would limit the scope of the hearing and
determination to the question of whether Johnson was competent at the time of his
sentencing. Johnson brought no pretrial motions regarding his competency before the
trial court and, in fact, raised no issue involving his mental illness prior to the jury’s
return with a guilty verdict. On December 30, 1997, Johnson, for the first time, brought
an issue regarding his mental status before the trial court in a motion styled a Motion for
a New Trial and an Order of Dismissal Notwithstanding the Verdict which he filed
between the date when the jury returned its verdict, November 24, 1997, and the date
of his final sentencing and the entry of final judgment, March 2, 1998. The record
reflects that both defense counsel’s declarations regarding Johnson’s ability to assist in
his defense and the trial court’s own doubts regarding the appellant’s competency
expressed in its Order of Mental Examination entered January 13, 1998 provided
“reasonable grounds [for the trial court] to believe the defendant is incompetent.” KRS
504.100(l).
In light of this, the trial court should not have sentenced the defendant
without first ascertaining his competency status by conducting a hearing, as provided in
KRS 504.100, on the issue whether he was competent to assist his counsel in
sentencing proceedings. KRS 504.090 (“No defendant who is incompetent to stand
trial shall be tried, convicted, or sentenced so long as the incompetency continues.” Id.)
Trial counsel preserved this issue for our review by objecting that the unresolved
questions regarding Johnson’s mental health status constituted legal cause to postpone
sentencing. Accordingly, I concur in the majority opinion to the extent that it holds that
this matter should be remanded to the trial court for a hearing on Johnson’s
competency, subject to the qualifications expressed above.
I do not agree, however, with the majority’s view that Johnson prematurely filed
this appeal or with its holding dismissing the appeal and remanding the matter to
Campbell Circuit Court for a ruling on the post-trial motions filed prior to the trial court’s
entry of judgment.
Each of the four post-trial/pre-judgment motions for a new trial filed
by Johnson raises issues regarding newly discovered evidence. Accordingly, the
appropriate time for filing such motions is not, as the logic of the majority opinion would
suggest, within one year of the verdict, but rather, as provided in RCr 10.06, “A motion
for a new trial based upon the ground of newly discovered evidence shall be made
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within one (1) year after the entrv of the iudament or at a later time if the court for good
cause so permits.” RCr 10.06( 1) (emphasis added). The overwhelming implication of
this section is that motions for new trial which allege newly discovered evidence will not
be filed prior to the entry of final judgment. I agree, however, with the majority opinion
that, in order to be timely filed, a motion for a new trial based on any grounds other than
newly discovered evidence must be filed within five (5) days of the verdict. In my
opinion, therefore, all of the post-verdict/prejudgment motions, with the exception of
Johnson‘s motion for new trial addressing competency issues, were not properly before
the trial court, and had no legal significance because Johnson had not timely filed them.
Accordingly, the three post-verdict/prejudgment motions for a new trial had no effect on
the trial court’s jurisdiction to enter final judgment, and Johnson’s appeal was timely
filed.
Although the Kentucky courts have not previously addressed the status of
prematurely filed new trial motions, courts in other jurisdictions have concluded that
new trial motions filed prior to judgment have no effect. See In re Tutorship of
Inaraham, 565 So.2d 1012 (La.App., 1990); Jessup v. Newman, 383 S.E.2d 136
(Ga.App, 1989); Ruiz v. Ruiz, 163 Cal.Rptr. 708 (Cal.App., 1980); Auto Equity Sales,
Inc. v. Superior Court of Santa Clara County, 369 P.2d 937 (Cal., 1962); Jones v. Kay,
110 N.E.2d 33 (Ohio App., 1951); Stone v. Boston, 218 S.W.2d 783 (Mo.App., 1949).
In my opinion, the majority’s interpretation ignores RCr 10.06(1)‘s use of the
phrase “after the entry of the judgment.” RCr 10.06(l) (emphasis added). This Court
did utilize the word “within” when drafting RCr 10.06(l), but it did so to clarify that a
motion for new trial on the basis of newly discovered evidence may be brought at any
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point in the year following the entry of final judgment.’ A motion filed before a time
period set out by rule or statute is no different from a motion filed after a defined time
period. Neither is timely filed, and neither is properly before the court. Both are
nullities.
The first sentence of RCr 10.06(l) addresses motions for new trial based upon
matters arising during the course of the proceedings or trial and states that such
motions must be served on the prosecution within five days of the verdict. See
Abramson, 9 Kentuckv Criminal Practice and Procedure s32.22 (West 1997). Motions
for new trial on the basis of trial errors, if timely filed, stay the time within which an
appeal from the judgment may be taken: “[IIf a timely motion has been made for a new
trial an appeal from a judgment of conviction must be taken within thirty (30) days after
the date of entry of the order denying the motion.” RCr 12.04(3); Adkins v.
Commonwealth, Ky., 309 S.W.2d 165 (1958). By contrast, RCr 10.06(2) describes the
interaction between motions for new trials based on newly discovered evidence and
appellate review of the underlying judgment and contemplates that such a motion would
be filed after the entry of judgment:
After a motion for a new trial is filed and if there is an appeal
pending, either party may move the appellate court for a
stay of the proceedings in the appellate court, whereupon
the clerk of the appellate court shall notify the clerk of the
trial court that the motion has been filed. The clerk of the
‘Without the word “within,” the relevant portion of RCr 10.06(l) would read: “A
motion for new trial based upon the ground of newly discovered evidence shall be made
[ ] one (1) year after the entry of the judgment or at a later time if the court for good
cause so permits.” RCr 10.06(l). Accordingly, it is understandable why “within” was
inserted into the rule; otherwise, such a motion could not be filed until one (1) year had
passed since entry of the judgment.
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trial court shall notify the clerk of the appellate court of the
trial court’s ruling on the motion for a new trial.
R,Cr 10.06; see also RCr 12.04(3)
(“[IIn the case of a motion for new trial made later
than five (5) days after return of the verdict, the appeal must be from the order
overruling or denying the motion . . . .‘I Id.).
To summarize, a defendant may bring a motion for new trial upon a basis other
than newly discovered evidence no later than five (5) days after the verdict.
If the trial
court overrules such a timely filed motion for new trial, a defendant may seek appellate
review of the ruling in an appeal from the final judgment. A motion for new trial based
upon newly discovered evidence may be filed at any time during the one (1) year
following, but not before, the entry of final judgment. If the trial court overrules such a
motion for new trial, any appeal must be taken from the order overruling or denying the
motion.
As the trial court ordered that Johnson’s competency-based motion for a new
trial be considered filed as of the date of the judgment, the trial court had jurisdiction to
enter the May 29, 1998 order denying the motion. Wilson v. Commonwealth, Ky.App.,
762 S.W.2d 182, 184 (1988). As Johnson chose not to appeal from this order, it
became final thirty (30) days after entry and Johnson may not now seek its reversal.
I find none of Johnson’s assignments of error with respect to his trial meritorious
and I would affirm the conviction, but remand the case to the trial court with instructions
for it to conduct a hearing to determine whether Johnson was competent at the time of
his final sentencing.
If the trial court determines that Johnson was incompetent at the
time of his sentencing, the final judgment should be set aside and further proceedings
-5
conducted in accordance with KRS 504.110. If the trial court finds that Johnson was
competent at the time of his final sentencing, the trial court should enter an order to that
effect from which Johnson may seek appellate review.
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I
i
1998-SC-180-MR
MARK
APPELLANT
JOHNSON
ON APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
97-CR-325
v.
COMMONWEALTH
OF
APPELLEE
KENTUCKY
ORDER
On
rendered
the
herein
on
Court's
own
motion, the Opinion of the Court
March
23,
2000, is hereby modified by the
substitution of new pages 1 and 6, hereto attached, in lieu of
pages 1 and 6 of the opinion as originally rendered.
Said
modification does not affect the holding of the opinion or the
dissent.
Appellee's motion to depublish-the
opinion of this
Court entered in the above-styled action is denied.
.'f'
All sitting. All concur.
ENTERED:
t
May 2L , 2000.
Chief
Justice
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