WALLACE L . HADLEY V. HON . CHARLES C . SIMMS, III, JUDGE, NELSON CIRCUIT COURT AND COMMONWEALTH OF KENTUCKY

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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNA TED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVI_L PROCED URE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOTBE CITED OR USED AS A UTHORITYIN ANY OTHER CASE INANY COUR T OF THIS STA TE. RENDERED : AUGUST 26, 2004 NOT TO BE PUBLISHED ,*uyrrmr (~ourf of rufurhV 2004-SC-0354-MR WALLACE L. HADLEY V. APPELLANT APPEAL FROM THE COURT OF APPEALS 2004-CA-0424-OA NELSON CIRCUIT COURT NO. 2003-CR-0373 HON . CHARLES C . SIMMS, III, JUDGE, NELSON CIRCUIT COURT APPELLEE AND COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST MEMORANDUM OPINION OF THE COURT AFFIRMING Pursuant to CR 76 .36(7)(a), Appellant, Wallace L. Hadley, appeals an order of the Court of Appeals denying his petition for a writ of mandamus . Through the writ, Appellant sought to compel Judge Charles C . Simms, III, of the Nelson Circuit Court to dismiss the indictment of first-degree sexual abuse against him on the grounds that the indictment was defective for its failure to state the name of the victim . On December 17, 2003, a Nelson County Grand Jury indicted Appellant on a single count of first-degree sexual abuse . The indictment read in pertinent part that Appellant engaged "in sexual contact with another person by the use of forcible compulsion." On January 30, 2004, Appellant filed a motion to dismiss the indictment for failing to identify the victim. The trial court denied the motion on February 9, 2004, but required the Commonwealth to provide the defense with discovery within forty-five days. Appellant filed an original action in the Court of Appeals on February 2, 2004, requesting a writ of mandamus compelling the trial court to dismiss the indictment . The Court of Appeals denied the writ stating that the "extraordinary remedy of mandamus is unavailable where, as here, there exists an adequate remedy by appeal." We agree . This Court decides the propriety of the denial of a writ by determining whether the Court of Appeals exercised sound discretion or acted arbitrarily. Humco, Inc. v. Noble , Ky., 31 S .W.3d 916, 920-21 (2000). A writ of mandamus is an extraordinary remedy that should only be granted under two sets of circumstances : 1) when the lower court is proceeding or about to proceed without jurisdiction, and there is no adequate remedy by law, or 2) to establish that the lower court, although acting with jurisdiction, is about to act incorrectly and there is no adequate remedy by appeal and great injustice or irreparable injury would occur . Id . We agree with the Court of Appeals that a writ of mandamus is not appropriate under the circumstances presented in this case . An attack on the sufficiency of an indictment is a cognizable claim on appeal. Varble v. Commonwealth , Ky ., 125 S .W .3d 246 (2004) ; Salinas v. Commonwealth , Ky., 84 S .W .3d 913 (2002), cert. denied, 538 U.S . 930, 123 S . Ct. 1585, 155 L . Ed . 2d 326 (2003); Thomas v. Commonwealth , Ky., 931 S.W.2d 446 (1996) . Therefore, we cannot conclude that the Court of Appeals acted arbitrarily. Further, the Appellant's motion to supplement the record, to which the Commonwealth had no objection, is granted . Additionally, the Appellant's motion to advance the appeal and to stay the underlying action pending the appeal's outcome is denied as moot . For the foregoing reasons, the decision of the Court of Appeals is affirmed . All concur . COUNSEL FOR APPELLANT : Keith D. Duerr Northside Place, Suite 5 4000 North Dixie Highway Elizabethtown, KY 42701 COUNSEL FOR APPELLEE : Charles C. Simms, III Geoghegan & Associates 116 East Stephen Foster Avenue Bardstown, KY 40004 COUNSEL FOR REAL PARTY IN INTEREST : Gregory D. Stumbo Attorney General of Kentucky Michael L. Harned Assistant Attorney General Criminal Appellate Division Office of the Attorney General 1024 Capital Center Drive Frankfort, KY 40601-8204

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