Mitchell Jackson v. Hon C. Shea Nickell Judge, Court of Appeals

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISIO,N IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
 RENDERED: FEBRUARY 2014
NOT TO BE PUB IS D

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MITCHELL JACKSON PETITIONER

V. IN SUPREME COURT

HON. C. SHEA NICKELL (JUDGE, RESPONDENTS
COURT OF APPEALS), ET AL.

AND

COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST

MEMORANDUM OPINION OF THE COURT

DISMISSING

Petitioner, Mitchell Jackson, brought forth two claims for relief as an

original action in the Supreme Court of Kentucky. The first claim seeks a

summary reversal of the Jefferson Circuit Court's order of revocation of

Petitioner's probation. Petitioner seeks to invoke this Court's jurisdiction

pursuant to Section 110(2)(a) of the Kentucky Constitution.' Alternatively,

Petitioner's second claim requests a writ of mandamus directing the Court of

Appeals to 1) rule on his motion to expedite, 2) rule on his motion for summary

Section 110(2)(a) states, to wit:
The Supreme Court shall have appellate jurisdiction only, except it shall
have the power to issue all writs necessary in aid of its appellate
jurisdiction, or the complete determination of any cause, or as may be
required to exercise control of the Court of Justice.
 reversal, and, if necessary, 3) render a decision on the merits. For the reasons

that follow, we dismiss both claims.

I. BACKGROUND

A Jefferson County Grand Jury returned two separate indictments

charging Petitioner with various offenses. In 2003, Petitioner reached a plea

agreement with the Commonwealth, resulting in two separate judgments.
(

Each judgment sentenced Petitioner to ten years' imprisonment to be served

consecutively for a total of twenty years. However, each sentence was probated

for five years.

In 2005, Petitioner pled guilty to additional unrelated charges. The guilty

plea and resulting judgment indicated that Petitioner agreed to a tolling of the

five-year probationary period imposed by the 2003 judgments. Petitioner was

sentenced to eight years' imprisonment, served two years of his sentence, and

received parole.

After his release on parole, Petitioner was indicted again for additional

offenses. 2 Thereafter, the Jefferson Circuit Court entered an order revoking

Petitioner's probation and imposing two ten-year sentences to be served

consecutively pursuant to the two judgments rendered against him in 2003.

Following his probation revocation, Petitioner filed a matter-of-right

appeal with this Court challenging the circuit court's order. Jackson v.

2 This new indictment included charges of possession of a controlled substance,

tampering with physical evidence, resisting arrest, theft by unlawful taking over
$300.00, use/possession of drug paraphernalia, and criminal trespass. The
indictment included further charges of fleeing or evading the police, possession of a
. controlled substance, and use/possession of drug paraphernalia that were dismissed.

2
Commonwealth, 319 S.W.3d 343 (Ky. 2010). Therein, Petitioner argued that

the circuit court lacked jurisdiction to revoke his probation given that the five-

year probation period established in the two 2003 judgments against him had

lapsed. Id. The Commonwealth moved to dismiss or transfer the appeal,

arguing that a probation revocation order did not constitute a "judgment .. .

imposing a sentence" for purposes of Section 110(2)(b) of the Kentucky

Constitution, 3 and, therefore, Petitioner was not entitled to an appeal as a

matter of right to this Court. Id. at 344-45. Agreeing with the Commonwealth,

we dismissed the appeal and directed the Court of Appeals to accept a belated

appeal if one was filed by Petitioner. Id. at 346-47.

In October 2010, the Court of Appeals granted Petitioner's motion to file

a belated appeal. After the filing of Petitioner's reply brief in June 2011, the

appeal was submitted for a decision. 4 In November 2013, Petitioner filed this

original action seeking to compel the Court of Appeals to act on his appeal.

II. ANALYSIS

Petitioner has filed an original action in this Court requesting summary

reversal of the Jefferson Circuit Court's order' revoking his probation or, in the

alternative, a writ of mandamus compelling the Court of Appeals to rule on his

motions or the merits of his case. Before this Court will reach the merits of

3 Section 110(2)(b) of the Kentucky Constitution provides for direct matter-of-

right appeals to the Supreme Court from any "judgment of the Circuit Court imposing
a sentence of death or life imprisonment or imprisonment for twenty years or
more . . . ."
4 Under CR 76.26, "Appeals will be submitted for consideration on the merits by

the appellate court when all briefs have been filed . . . ."

3
Petitioner's original action, we must first establish whether each claim in the

petition was filed in the proper forum.

A. The Supreme Court's Authority to Exercise Supervisory Control over
the Court of Justice

Petitioner acknowledges that both claims in his original action are

seemingly prohibited by CR 76.36(1), which states, in pertinent part, loiriginal

proceedings in an appellate court may be prosecuted only against a judge or

agency whose decisions may be reviewed as a matter of right by that appellate

court." The Supreme Court is undoubtedly an appellate court. Therefore, by

the plain language of CR 76.36(1), original proceedings may be brought in the

Supreme Court only against a judge whose decisions may be reviewed as a

matter of right by the Supreme Court. Petitioner's case is currently before the

Court of Appeals. The only Court of Appeals decisions reviewable as a matter

of right by the Supreme Court are original actions filed in the Court of Appeals

(i.e., a writ of mandamus/prohibition filed in the Court of Appeals) and -

worker's compensation appeals under CR 76.25. See Vessels v. Brown-

Foreman Distillers Corp., 793 S.W.2d 795 (Ky. 1990). Because Petitioner's case

before the Court of Appeals is not itself an original action or a worker's

compensation decision, his appeal is not reviewable as a matter of right in the

Supreme Court. Id. Consequently, CR 76.36(1) bars Petitioner from filing an

original action in this Court.

Nonetheless, Petitioner argues that, even though his original action is

barred by CR 76.36(1), we should still review his claims because the rule is

unconstitutional. Petitioner asserts that CR 76.36(1) violates Section 115 of
4
the Kentucky Constitution, which requires procedural rules to "provide for

expeditious and inexpensive appeals." In support of his argument, Petitioner

contends that CR 76.36(1) fails to provide for expeditious appeal because the

rule prevents most litigants from remedying inaction on the part of the Court of

Appeals. For example, CR 76.36(1) prevents parties such as Petitioner from

bringing an original action for mandamus in this Court against the Court of

Appeals in order to compel the court to act. Therefore, because of CR 76.36(1),

the Court of Appeals can interminably avoid ruling on Petitioner's appeal.

According to Petitioner, to the extent that CR 76.36(1) deprives litigants of any

recourse against a dilatory ruling by the Court of Appeals, the rule frustrates

Section 115's expeditious appeal mandate.

Furthermore, Petitioner contends that the Supreme Court may address

the claims in his original action under the Court's broad authority to act in the

orderly administration of justice regardless of the dictates of CR 76.36(1). In

support of this argument, Petitioner cites Abernathy v. Nicholson, in which this

Court stated, to wit:

Initially, it should be conceded that this Court possesses the raw
power to entertain any case which fits generally within the rubric
of its constitutional grant of authority. As Section 110(2)(a) of the
Constitution contains a provision which grants the Supreme Court
supervisory control of the Court of Justice, virtually any matter
within that context would be subject to its jurisdiction.

899 S.W.2d 85, 88 (Ky. 1995). As alluded to in Abernathy, Section 110(2)(a) of

the Constitution of Kentucky states, in pertinent part, "[t]he Supreme Court

shall have . . . the power to issue all writs . . . as may be required to exercise

control of the Court of Justice."
5
 In Vessels, this Court had occasion to consider a conflict between a civil

rule, CR 76.25(12), and a constitutional provision, Ky. Const. § 115. 793

S.W.2d 795. In that case, we determined that Section 115 afforded appeals to

the Supreme Court as a matter of right from the Court of Appeals in workers'

compensation cases. Id. at 798. However, CR 76.25(12) limited appeals of

Court of Appeals workers' compensation decisions to discretionary review. Id.

at 797. Ultimately, we held that Cr 76.25(12) was unconstitutional because it

conflicted with Section 115. Id. at 798.

Similarly, to the extent CR 76.36(1) conflicts with Section 110(2)(a) of the

Kentucky Constitution, we must declare the rule unconstitutional. Section

110(2)(a) affords the Supreme Court the authority to issue all writs necessary

to "exercise control of the Court of Justice." Therefore, in the event that the

Court of Appeals neglects or refuses to rule on a pending appeal, Section

110(2)(a) provides this Court the authority to compel the Court of Appeals to

act through issuance of a writ of mandamus. CR 76.36(1) cannot override

Section 110(2)(a) and limit this Court's ability to issue writs against the Court

of Appeals. See id. ("Only the people by amendment or by convention have the

power to amend or change the constitution.").

However, we still find it prudent to comply with CR 76.36(1) in those

circumstances in which the rule does not conflict with this Court's ability to

"exercise control over the Court of Justice" under Section 110(2)(a). Ordinarily,

CR 76.36(1) supports judicial economy by encouraging the normal appellate

6
process and preventing petitioners from circumventing the Court of Appeals by

filing original actions in the Supreme Court.

In holding that this Court retains the constitutional power to compel the

Court of Appeals to act through the writ of mandamus, we also remove any

concern that CR 76.36(1) fails to provide for expeditious appeals as required by

Section 115 of the Kentucky Constitution. Having determined that CR 76.36(1)

cannot bar this Court from issuing those writs necessary to exercise control

over the Court of Justice, we turn to the first claim in Petitioner's original

action, a request for summary reversal of the trial court's order revoking his

probation. Before reaching the merits of Petitioner's claim, we will consider

whether it is a valid invocation of our authority to exercise supervisory control

over the Court of Appeals. Otherwise, that portion of CR 76.36(1) that does not

conflict with Section 110(2)(a) will bar the claim from being filed in this Court.

B. Petitioner's Request for Summary Reversal of the Circuit Court's
Order

Petitioner requests summary reversal of the Jefferson Circuit Court's

order revoking his probation, arguing that the Court of Appeals will not act and

that summary reversal is his only recourse. However, the summary reversal

requested by Petitioner would do nothing to address the Court of Appeals'

failure to rule on his motions and the merits of his case. Instead, it would

address Petitioner's underlying allegation against the trial court, which forms

the basis of his appeal—that the trial court acted outside its jurisdiction by

revoking his probation after the five-year probationary period had passed.

7
 In requesting summary reversal of the trial court's order, Petitioner does

not ask us to exercise supervisory control over the Court of Justice, but rather

to wrest a decision previously made from the trial court. This is not the

authority envisioned for the Supreme Court in Section 110(2)(a). When a trial

court neglects or refuses to act, it is the function of an appellate court to

compel it to do so. Courier-Journal and Louisville Times Co. v. Peers, 747

S.W.2d 125, 126-27 (Ky. 1988) (citations omitted). However, "lilt is not the

function of an appellate court . . . to direct a trial court on how to exercise its

discretion." Id. at 126.

Because Petitioner's request for summary reversal does not invoke this

Court's authority to exercise supervisory control over the Court of Justice, we

find that Petitioner's request for summary reversal is improperly filed in this

forum in violation of CR 76.36(1). In this instance, CR 76.36(1) properly acts to

preserve the appellate process by rejecting Petitioner's original action for

summary reversal, thereby preventing Petitioner from evading the Court of

Appeals. Accordingly, Petitioner's request for summary reversal is dismissed

without reaching its merits. Furthermore, we caution those who would bring

further actions in this vein that the response going forward will be summary

dismissal under CR 76.36(1). 5

5 Additionally, we note that Petitioner's request for summary reversal is

inappropriate in this Court because Petitioner ignored the accepted protocol for
challenging an order of revocation. When a trial judge issues an order revoking
probation, the aggrieved party may file a petition for writ of prohibition or mandamus
against the circuit court in the Court of Appeals. See Lasley v. Shake, 2013 WL
674837 (Ky. Feb. 21, 2013) (affirming Court of Appeals' denial of a petition for writ of
mandamus to reinstate revoked probation); Conrad v. Evridge, 315 S.W.3d 313 (Ky.

8
 C. Petitioner's Request for a Writ of Mandamus

Petitioner's second claim in this original action is a request for a writ of

mandamus directing the Court of Appeals to: 1) rule on his motion to expedite

his appeal, 2) rule on his motion for summary reversal, and, if necessary, 3)

render a decision on the merits of his appeal. Several days prior to Petitioner

filing his original action with this Court, the Court of Appeals issued an order
.

denying Petitioner's motion for summary reversal and abating his appeal.

Thus, Petitioner's first two requests have been rendered moot and we need only

address the question of whether Petitioner is entitled to a writ of mandamus

compelling the Court of Appeals to rule on the merits of his case.

As explained above, we have determined that this Court has the

authority to direct the Court of Appeals to act under Section 110(2)(a) of the

Kentucky Constitution. Therefore, CR 76.36(1) cannot mandate that this Court

must dismiss Petitioner's request for mandamus as an original action

improperly filed in the Supreme Court. However, simply because this Court

has the authority to reach the merits of the mandamus portion of Petitioner's

original action does not mean that it must do so in this instance.

In its response and motion to dismiss, the Court of Appeals, citing

Abernathy, concedes that the Supreme Court has inherent authority to rule on

original actions as required to control the Court of Justice. Therefore, if ruling

2010) (affirming Court of Appeals' grant of a writ of prohibition where the trial court
acted outside its jurisdiction in revoking petitioner's probation). Petitioner should
have followed the ordinary procedural approach rather than attempting to subvert the
appellate process by filing an original action in this Court.

9
on Petitioner's request for mandamus is necessary to exercise supervisory

control over the Court of Justice, then this Court has jurisdiction to consider

the writ even though it is an original action. However, the Court of Appeals

argues that the Supreme Court is not per se required to hear such original

actions because the exercise of this jurisdiction is discretionary. Respondents

caution that the Supreme Court's ability to entertain cases as original actions

should be used sparingly and that Petitioner's writ does not constitute a proper

case for invocation of that power.

This Court previously addressed its inherent power to entertain original

actions in Abernathy:

The Constitutional language here under review grants this Court
jurisdiction "as may be required to'exercise control over the Court
of Justice." Such language is of a decidedly discretionary tone.
The Court is not thereby required to do anything under'this
provision, but may exercise control if its discretion so indicates. In
view of the essential nature of appellate courts, only in well defined
or compelling circumstances should an original action be
entertained therein.

899 S.W.2d at 88. Respondents are correct that the Supreme Court is not

obligated to consider Petitioner's writ request and should only do so in

"compelling circumstances." Given the explanations for the delay in ruling

provided by Respondents, we find that Petitioner's request for a writ of

mandamus lacks the "compelling circumstances" necessary for this Court to

address a request for writ of mandamus.

In recent years, the Kentucky Court of Appeals has managed a

demanding caseload. Therefore, although delays that are not fully justified

may occasionally occur, only in the most exceptional circumstances would this
10
Court consider an original action to require the Court of Appeals to render a

decision in a pending case.

Petitioner criticizes the Court of Appeals for failing to rule on the merits

of his appeal, which was submitted for a decision on June 13, 2011. In their

response, the Court of Appeals provides an explanation for their delay in

adjudicating Petitioner's appeal. Shortly after the initial panel assignment of

the case, Judge Thomas Wine recused himself, which necessitated

reassignment of the appeal to a different panel. The new panel issued a notice

of assignment on August 18, 2011.

Thereafter, on September 19, 2012, Petitioner filed a motion to cite

additional authority. Petitioner's motion alleged that the opinion rendered in

Dulin v. Commonwealth, 2011-CA-000602-MR, 2012 WL 4036657 (Ky. App.

Sep. 14, 2012), was dispositive of the issue of whether the circuit court lacked

jurisdiction to revoke his probation. Following the Court of Appeals', decision in

Dulin, the Commonwealth filed a motion for discretionary review of the case

with this Court. Discretionary review of Dulin was later granted by order of this

Court.

The Court of Appeals attributes much of the delay in ruling on

Petitioner's appeal to the pending review of Dulin in this Court. Respondents

assert that an opinion by this Court in Dulin has the potential to dispose of the

issues asserted in Petitioner's appeal. In its order denying Petitioner's motion

for summary reversal and abating appeal until this Court resolves Dulin, the

Court of Appeals admits that it had previously "informally" abated Petitioner's

11
appeal. Respondent's brief cites "prudence and judicial economy" as reasons

for the formal abeyance issued in the order. Respondents also explain that

panels of the Court of Appeals "routinely" abate cases pending resolution of

potentially dispositive cases pending in this Court.

Additionally, Respondents note that in November 2012, Senior Judge

Joseph Lambert, the presiding judge of the new panel, retired, necessitating

another reassignment. We find that the Court of Appeals' explanation of the

various factors contributing to its delay in ruling on Petitioner's appeal is

sufficient to mandate dismissal of Petitioner's requested writ without reaching

its merits. On these facts, the Court of Appeals' decision to delay its ruling on

the merits of the case was sound, for it will enable it to consider potentially

dispositive precedent soon to issue from this Court in the Dulin case.

Moreover, mandamus is an extraordinary remedy at least in part because

of the mutual respect this Court has for its fellow jurists. The Court of Appeals

has offered a satisfactory explanation for its delay in reaching the merits of this

case. In light of the Court of Appeals' abatement of Petitioner's appeal and its

explanation for the delay in reaching a ruling, we find it unnecessary for this

Court to reach the merits of Petitioner's original action seeking mandamus.

For the foregoing reasons, that portion of Petitioner's original action requesting

a writ of mandamus is dismissed.

What is more, we issue this word of caution that nothing in this Opinion

should be construed as an open invitation to petitions for mandamus seeking

to compel the Court of Appeals to act. As explained above, we will not reach

12
the merits of writs directed at the ordinary delays of an appeal. Such writs

seek to subvert the appellate process. Therefore, the response of this Court

will be dismissal.

III. CONCLUSION

We dismiss Petitioner's original action for summary reversal as not

properly filed in this forum. In addition, we decline to employ our discretionary

jurisdiction to exercise control over the Court of Justice for the purpose of

considering Petitioner's original action for writ of mandamus and dismiss the

writ without reaching its merits.

Minton, C.J.; Cunningham, Keller, Noble, Scott, and Venters, JJ.,

concur. Abramson, J., concurs in result only.

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COUNSEL FOR PETITIONER:

Daniel T. Goyette, Louisville Metro Public Defender of Counsel
Bruce P. Hackett, Chief Appellate Defender

COUNSEL FOR RESPONDENTS:

Ann P. Swain, Chief Staff Attorney, Kentucky Court of Appeals

COUNSEL FOR COMMONWEALTH OF KENTUCKY, REAL PARTY IN
INTEREST:

Jack Conway, Attorney General of Kentucky
Gregory C. Fuchs, Assistant Attorney General