Hodge v. Coleman, No. 2007-SC-000073-OA.
| Decision Date | 24 January 2008 |
| Docket Number | No. 2007-SC-000073-OA. |
| Citation | 244 S.W.3d 102 |
| Parties | Benny Lee HODGE, Petitioner, and Roger Epperson, Intervening Petitioner, v. Hon. Eddy COLEMAN, Special Judge, Letcher Circuit Court; Commonwealth of Kentucky (Real Party in Interest); and Department of Public Advocacy (Real Party in Interest), Respondents. |
| Court | United States State Supreme Court — District of Kentucky |
This case requires us to determine if indigent post-conviction petitioners are entitled to public funds for the travel expenses of their out-of-county witnesses in cases in which a court has determined that an evidentiary hearing is necessary to resolve the post-conviction motion. We unanimously held in Stopper v. Conliffe1 that Kentucky Revised Statutes (KRS) 31.185 "does not apply to post-conviction proceedings."2 Despite Stopher's sweeping prohibition against the application of KRS 31.185 to post-conviction proceedings, approximately one year later we issued Commonwealth v. Paisley3 in which we, at a minimum, left open the possibility that KRS 31.185 could be used as a source for funding the hiring of expert witnesses for certain post-conviction petitioners. This divergent approach to the potential availability of public funds for indigent post-conviction petitioners has, understandably, caused confusion. In an effort to eliminate that confusion, we now partially overrule Stopher and hold that the special fund created in KRS 31.185(4) can be used to pay out-of-county witness expenses for indigent post-conviction petitioners, provided that a court has found that (1) the petitioner's post-conviction petition raises an issue that cannot be resolved without an evidentiary hearing and (2) the proposed, out-of-county witness's live testimony at the evidentiary hearing is necessary for a full presentation of the petitioner's case.
In order to understand the issues presented in the current case, it is necessary first to recount its lengthy history. Benny Lee Hodge and Roger Epperson were sentenced to death for their convictions for robbery, burglary, attempted murder, and murder. We affirmed their convictions and sentences on direct appeal.4 Following direct appeal, the trial court denied, without an evidentiary hearing, their Kentucky Rules of Criminal Procedure (RCr) 11.42 motions for post-conviction relief. We reversed and remanded the denial of the RCr 11.42 motions with instructions to the trial court to hold an evidentiary hearing on their claims of jury tampering and of ineffective assistance of counsel for failure to present mitigation evidence.5
On remand, the trial court severed the jury tampering and ineffective assistance of counsel claims. The trial court denied Hodge and Epperson's request for funding to secure the attendance of out-of-state witnesses for the jury-tampering issue, citing our decision in Stopher. Epperson and Hodge sought emergency relief and a writ of Mandamus compelling funding.6 Former Justice Donald C. Wintersheimer, who was designated to hear and decide these emergency motions, denied the requests for emergency relief; and in January 2007, we unanimously denied Hodge and Epperson's petition for a writ of mandamus.
The trial court has already conducted a hearing on the jury-tampering portion of Hodge and Epperson's RCr 11.42 motions and rejected their claim for relief on that issue. Nevertheless, Epperson has filed a motion asking us to reconsider our order denying his request for funding. That motion for reconsideration has been ordered to be held in abeyance pending the resolution of the cases at hand.
Early last year, Hodge filed a second petition for a writ of mandamus, seeking state funds to secure the attendance of twenty-three out-of-state witnesses for the ineffective assistance of counsel portion of the bifurcated post-conviction proceedings. According to Hodge's petition, he was born and raised in Tennessee; and he believes these Tennessee witnesses are necessary to his claim regarding mitigation. Hodge contends that he is entitled to funds to secure the attendance of those witnesses at the hearing previously ordered by this Court.
As an intermediate step, we ordered the trial court to rule on Hodge and Epperson's motion for out-of-state witness funds as a predicate to this ruling on the merits of the writ. The trial court issued an order denying the motion for travel expenses. Following our instruction, the trial court has not yet conducted a hearing on the ineffective assistance of counsel portion of Hodge and Epperson's RCr 11.42 motions.
We have entered an order granting Epperson's motion to intervene as a petitioner in Hodge's petition for a writ. So the issues raised in the writ are squarely before us and apply to Epperson and to Hodge.
First, we must determine whether Hodge and Epperson—or, more broadly speaking, any indigent post-conviction petitioner whose petition merits an evidentiary hearing—are foreclosed from using public funds for the travel expenses of their out-of-county witnesses. Because we find that the answer to that question is no, we then must determine if Hodge and Epperson have met the standards necessary for the granting of a writ. And the answer to that question is yes.
The post-conviction petitioner in Stopher sought a writ to compel the trial court to conduct an ex parte hearing under KRS 31.185 to seek funds for an expert to support petitioner's motion.7 We held that the issue of whether KRS 31.185 provided expert funds for post-conviction petitioners was a matter of first impression and that the resolution of that issue was "nothing more than a matter of statutory interpretation."8 We focused upon the "defending attorney" language in subsections (1) and (2) of KRS 31.185 and held that that language evidenced the General Assembly's intent "to limit the use of funds or facilities allowed under KRS 31.185 to attorneys representing an indigent defendant at trial.9 Or, in other words, "the plain meaning of KRS 31.185(2) indicates that it only applies to trial and does not apply to post-conviction proceedings."10 Later in the opinion, however, we ventured further and flatly declared that "KRS 31.185 [in its entirety] does not apply to post-conviction proceedings."11
In Paisley, the trial court ordered the Finance and Administration Cabinet to pay $5,000 for private mental health testing of a post-conviction petitioner in order to determine if that petitioner was mentally retarded and, thus, ineligible for the death penalty.12 The Commonwealth petitioned this Court for a writ to prohibit the trial court from ordering it to pay for that private mental health testing.13
We noted that "[t]he establishment of mitigating circumstances at the penalty phase is of the greatest importance when a defendant is facing the death penalty."14 So we held that the trial court properly ordered mental health testing to be performed on the petitioner.15 But we held that the trial court erred when it ordered the Commonwealth to pay for private mental health testing without petitioner having first shown that the use of the state mental health facilities for the testing was impractical.16 And we held that the Commonwealth was entitled to a writ because it would have been unable to recoup the $5,000 from the indigent petitioner once those funds had been expended, and the Commonwealth faced the potential of having to pay for private funding, for numerous post-conviction petitioners.17
Confusion in our law has resulted from the fact that Stopher seemed to establish a bright line rule that no funds were available under KRS 31.185 for indigent postconviction petitioners while Paisley, without even mentioning Stopher, seemed to open up the possibility for expert funding for a postconviction petitioner. This confusion is magnified by the fact that Paisley, rather than quoting our earlier holding in Stopher that KRS 31.185 had no application to post-conviction petitioners, instead relied upon KRS 31.185—the very same statute discussed at length in Stopher—for the proposition that a post-conviction petitioner may be entitled to public funds for the hiring of an expert witness if the postconviction petitioner could show that the use of the state facilities was impractical.18
Although much confusion could have been avoided if Paisley contained a discussion of Stopher, the core holdings of the two opinions are not entirely irreconcilable. The post-conviction petitioner in Stopher asked us to issue a writ to order the trial court to hold a hearing on whether the petitioner was entitled to expert funds under KRS 31.185 to bolster the petitioner's recently filed RCr 11.42 motion.19 At the time we issued our opinion, no Kentucky court of competent jurisdiction had determined that the post-conviction petitioner in Stopher had presented a known grievance necessitating a hearing, meaning that it would have been premature to order expert funds for a hearing on an RCr 11.42 motion when the RCr 11.42 motion itself may not have even stated grounds sufficient to necessitate a hearing.20
In Paisley, however, the trial court had...
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