Com. v. Marcum, 93-SC-462-DG

• Decision Date: 24 March 1994
• Docket Number: No. 93-SC-462-DG,93-SC-462-DG
• Citation: 873 S.W.2d 207
• Parties: COMMONWEALTH of Kentucky, Movant, v. Winslow MARCUM, Respondent.
• Court: United States State Supreme Court — District of Kentucky

Page 207

873 S.W.2d 207

COMMONWEALTH of Kentucky, Movant, v. Winslow MARCUM, Respondent.

No. 93-SC-462-DG.

Supreme Court of Kentucky.

March 24, 1994.

Chris Gorman, Atty. Gen., Joseph R. Johnson, Asst. Atty. Gen., Crim. Appellate Div., Frankfort, for movant.

C. McGehee Isaacs, Covington, for respondent.

LEIBSON, Justice.

Winslow Marcum, a prisoner at the Kentucky State Reformatory in Oldham County, filed a Petition for Writ of Habeas Corpus in Oldham Circuit Court against Walt Chapleau, Warden, claiming he is being illegally detained under a void judgment.

On February 1, 1988, the trial judge in Knox Circuit Court formally sentenced Marcum to two years on second-degree burglary, enhanced to five years based on his status as a first-degree persistent felony offender. A "Judgement and Sentence on Plea of Guilty" was signed that date by the trial judge attesting these facts, and this judgment was entered by the circuit clerk on February 3, 1988. Thereafter, in the same case and on the same offenses, on March 25, 1988, almost eight weeks later, the trial judge signed and the clerk entered a new "Judgement and Sentence on Plea of Guilty," marked "AMENDED," sentencing Marcum to five years on the second-degree burglary, enhanced to ten years as a first-degree PFO. The second judgment, as did the first, recites that "on the 1st day of February, 1988 the defendant appeared in open court ... with his attorney Hon. Carlos Pope." Marcum's verified Petition states the March 25 judgment was signed and entered "without petitioner, or his counsel, present," and the amended judgment confirms this.

The maximum period for Marcum's incarceration under the February 1988 judgment has expired. The Petition for Writ of Habeas Corpus seeks Marcum's immediate release on grounds that the trial court had lost jurisdiction to alter, amend or vacate the February judgment when the "AMENDED" March 25, 1988 judgment was entered: that it is a void judgment and Marcum's continued incarceration by the Warden and the Kentucky Department of Corrections is unlawful.

Two responses were filed to the petition on behalf of Warden Chapleau, one by counsel for the Department of Corrections and a second by the Attorney General's office. Neither contested the facts. The Attorney General claimed only that Oldham Circuit Court should not "entertain a habeas corpus petition" because there is no showing the RCr 11.42 procedure is inadequate: "The petitioner should pursue his attack on the Knox Circuit Court Judgment in the Knox Circuit Court." The response filed by the Department of Corrections, after reciting the same facts stated in the Petition for Writ of Habeas Corpus, argues, as did the Attorney General, that "Petitioner's arguments should not be raised in [Oldham Circuit] Court but in the sentencing court by way of RCr 11.42 motion or by appeal."

On March 3, 1993, the Oldham Circuit Court judge signed an order designated "FINDINGS and ORDER" (entered March 4, 1993), which refers to the sentencing on February 1 as only a "final hearing" and then recites as a finding that "the final sentence was recorded by the Clerk on March 28, 1988." This order from Oldham Circuit Court disposes of Marcum's claim that he was sentenced on the February date as lacking "supporting documentation," and then concludes:

"Based on these factors, the matter remains on the active docket and the Court will allow twenty days for the petitioner to either supplement the present record with additional court documents to support his statements as to successive sentences or, in the alternative, request the Court to transfer this entire matter to the Knox Circuit Court with same to be treated as an RCr 11.42 motion.

In the event the petitioner takes no additional steps to either supplement this record or request the transfer, the pending petition for writ of habeas corpus will be dismissed."

Complying with the March 3, 1993 order, on March 22 petitioner supplemented his petition for a writ of habeas corpus with copies of the "Judgment and Sentence on Plea of Guilty" dated February 1, 1988 (entered February 3, 1988) and the "AMENDED" judgment dated March 25, 1988. Petitioner did not request transfer of this matter to the Knox Circuit Court to be treated as an RCr 11.42 motion as the trial court had suggested, electing instead to pursue habeas corpus, which is, of course, both a constitutional right (see Kentucky Constitution, Sec. 16) and an expedited remedy (see KRS Chapter 419).

Notwithstanding the supplementing documents, the trial court then dismissed the writ by final "Order Dismissing Writ of Habeas Corpus" dated April 9, 1993, entered April 12, 1993, stating:

"Based upon a review of the additional information, the Court incorporates its March 4, 1993 order ... and in that there is no pending request by the petitioner to transfer this matter to the Knox Circuit Court to be treated as an RCr 11.42 motion, the pending petition for writ of habeas corpus be and is hereby dismissed."

On appeal, the Kentucky Court of Appeals stated the sole issue was whether Marcum was confined to seeking a remedy "by way of RCr 11.42" in Knox Circuit Court where the sentence was imposed. The Court of Appeals reversed the trial court on this issue, and remanded the case to the Oldham Circuit Court "to be reconsidered" accordingly.

The Commonwealth sought, and was granted, discretionary review in our Court. For reasons to be stated, we affirm.

The Commonwealth argues that habeas corpus is no longer a viable remedy where the issue is post-conviction relief, because the procedure provided by RCr 11.42 supplants habeas corpus. RCr 11.42 provides a "prisoner in custody under sentence" both a method and a "right to be released on the ground that the sentence is subject to collateral attack." This attack must be made by "motion in the court that imposed the sentence to vacate, set aside or correct it" (RCr 11.42(1)), which, of course, is the Knox Circuit Court in present circumstances. In support of its position, the Commonwealth cites Wingo v. Ringo, Ky., 408 S.W.2d 469 (1966) and its progeny. In Wingo v. Ringo, our Court reversed the decision of the trial court to grant a writ of habeas corpus challenging enhanced punishment as a habitual offender on two separate charges tried together, and, after first deciding on the merits that the sentences originally imposed were lawful, next addressed the procedure, stating:

"Properly, the Lyon Circuit Court should not have entertained Ringo's habeas corpus petition because there was no showing of inadequacy of the remedy provided by RCr 11.42. See Ayers v. Davis, Ky., 377 S.W.2d 154." Id. 408 S.W.2d at 470.

While the Wingo v. Ringo opinion has technical problems, the principle stated above has been cited and followed in subsequent cases. The problem is not in the general principle, but in deciding what constitutes a "showing of inadequacy of the remedy provided by RCr 11.42." The solution lies in balancing the competing interests of the Commonwealth and those of the prisoner seeking post-conviction relief.

On the one hand, RCr 11.42, a rule of this Court, certainly cannot supplant the right to a writ of habeas corpus, a fundamental right guaranteed by Sec. 16 of our Kentucky Constitution. Where the writ would apply, the rule can only substitute where it is fully as adequate. This writ is an expedited procedure of a summary nature. See KRS 419.020-.110. The statutory provisions in KRS Chapter 419 implementing the constitutional guarantee of the writ of habeas corpus emphasize the importance of an expedited procedure where it is clear someone is being unlawfully detained. KRS 419.030 specifies "[t]he writ must be made returnable as soon as possible." KRS 419.110(1) specifies "[t]he hearing on the writ shall be summary in nature." KRS 419.130 provides a method for an expedited appeal. Because this case involved habeas corpus, as contrasted with an RCr 11.42 procedure, this case was assigned out and decided in the Court of Appeals in barely two months, and treated as expeditiously as possible in our Court. An RCr 11.42 is treated as a routine case in the circuit court, and follows a normal appellate procedure, all of which can take several years.

On the other hand, as the Commonwealth maintains, RCr 11.42 provides an alternate method for a collateral attack on a final judgment which is a more orderly procedure, which provides for a hearing in the place where the person now detained was originally sentenced so that both records and witnesses are available, and which ultimately should afford the same relief, albeit the process will take much longer. The Commonwealth argues vehemently that the handful of circuit courts with geographical responsibility for incarceration facilities would be overwhelmed if prisoners in these facilities may collaterally attack the judgments of imprisonment by writ of habeas corpus rather than being restricted to an RCr 11.42 procedure in the place where they were sentenced. This, of course, would be so if all manners of collateral attack upon a judgment of conviction covered by RCr 11.42 could be reached in like manner by habeas corpus.

Thus the issue here involves the balance between the Commonwealth's need for the orderly procedure as provided for by RCr 11.42 and the prisoner's right to an expeditious release through habeas corpus when it is patently obvious he is being unlawfully detained. When should the prisoner be entitled to demand habeas corpus notwithstanding the alternative provided by RCr 11.42? How should we define when the RCr 11.42 procedure should be deemed inadequate notwithstanding that over time presumably it will achieve the same result?

Long ago, in Smith v. Henson, 298 Ky. 182, 182 S.W.2d 666, 667 (1944), we stated "[o]rdinarily the writ will not be...