Mills v. Com.
| Decision Date | 22 September 2005 |
| Docket Number | No. 2002-SC-000216-MR.,2002-SC-000216-MR. |
| Citation | 170 S.W.3d 310 |
| Parties | John MILLS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
On August 30, 1995, Appellant, John Mills, was arrested for the murder of A.L. Phipps. At trial, the jury found Appellant guilty of Murder, First-Degree Burglary, First-Degree Robbery, and sentenced him to death. The primary facts of Appellant's case, upon which we rely here, except where a more specific discussion is necessary, are recounted in Appellant's direct appeal, wherein we affirmed the judgment of the trial court.1 Appellant began post-conviction proceedings by filing a motion under RCr 11.42. The trial court entered an order scheduling an evidentiary hearing for September 6, 2000. On July 10, 2000, Appellant filed a motion to recuse the trial judge, who had presided over the trial, from hearing the RCr 11.42 motion. Instead of holding an evidentiary hearing on the RCr 11.42 motion on September 6, 2002, the trial court held a hearing on the motion to recuse. On October 2, 2000, the trial court entered an order overruling the motion to recuse. On July 27, 2001, the trial court entered an order overruling the RCr 11.42 motion without a hearing. Next, Appellant filed a motion under CR 59.05 asking the trial court to reconsider its ruling on the RCr 11.42 motion. The trial court overruled this motion in an order dated February 6, 2002. Appellant now appeals to this Court as a matter of right2 and claims that the trial court erred in refusing to strike the Commonwealth's response to his RCr 11.42 motion, in applying a heightened pleading standard, in not conducting an evidentiary hearing, in finding that a judicial privilege barred the testimony of the trial judge's former law clerk, and in refusing to recuse from ruling on the judicial privilege issue. We affirm the trial court's overruling of the RCr 11.42 motion in part and reverse in part and remand for an evidentiary hearing on several of Appellant's claims.
Before addressing the Appellant's claims of error, we must address a procedural matter, namely, whether Appellant's notice of appeal of the trial court's ruling on his RCr 11.42 motion was timely filed. The trial court entered its order overruling Appellant's RCr 11.42 motion on July 27, 2001. A copy of the order was mailed to Appellant's attorney, who received the document on July 31, 2001. On August 6, 2001, Appellant's attorney mailed to the trial court a motion pursuant to CR 59.05 to alter, amend, or vacate the order overruling the RCr 11.42 motion. The motion was entered by the clerk on August 13, 2001.
On February 6, 2002, the trial court entered an order overruling Appellant's CR 59.05 motion. The trial court held that Appellant's CR 59.05 motion was untimely because it was entered seventeen days after the order overruling the RCr 11.42 motion and that the motion was inappropriate because CR 59.05 was inapplicable to proceedings under RCr 11.42. Nonetheless, in the interest of judicial economy, the trial court addressed Appellant's motion on the merits and overruled it. Appellant mailed his notice of appeal on March 6, 2002. The circuit clerk's office received the notice on March 7, 2002, and the notice was entered on March 13, 2002.
During the course of litigating the appeal, the Commonwealth moved to have the appeal dismissed as untimely on the grounds that the appeal was not filed within the thirty-day period for filing a notice of appeal prescribed by RCr 12.04(3). The Commonwealth argued that CR 59.05 does not apply to RCr 11.42 proceedings, thus the time for filing an appeal was not suspended by filing the CR 59.05 motion. We initially granted the Commonwealth's motion by order dated October 14, 2003. Appellant moved the Court to reconsider, and we withdrew the October 14, 2003, order and passed a decision on the issue to the merits of the appeal.
Appellant argues that CR 59.05 does apply to RCr 11.42 proceedings. In support of this contention, Appellant cites to Crane v. Commonwealth,3 where we noted that "CR 59.05 is applicable to criminal cases."4 The context of that statement is important. Crane involved a direct appeal from a wanton murder conviction. The appellant had previously been convicted, but his conviction was reversed by the federal courts in a habeas action. At his second trial, the appellant moved to recuse the judge, who had presided at the first trial, because of comments the judge allegedly made during the sentencing phase of the first trial. After an evidentiary hearing, the judge denied the motion. The appellant raised the issue in his appeal. We noted that the appellant had not attacked the final judgment with a CR 59.05 motion, even though the rule was applicable to criminal cases. We noted several other reasons why the appellant was not entitled to relief, including the fact that his original motion to disqualify the judge did not include the necessary affidavit, thus rendering the motion deficient. As such, the statement regarding CR 59.05 was not essential to the holding and does not control the result in this case.
It is also important to note that the statement in Crane that CR 59.05 applied to criminal proceedings was predicated on Silverburg v. Commonwealth,5 which only addressed the issue in passing. In Silverburg, the trial court entered an order modifying its sentence on a perjury conviction. The modification order, however, was not entered until thirty-eight days after the judgment imposing the sentence was entered. We noted that the civil rules control when the criminal rules do not provide a time period for action, and that because there was no relevant time-period listed in the criminal rules for the modification, the ten-day time period in CR 59.05 applied. Because the trial court had lost jurisdiction over the case after the ten-day period, we held that the modification order was void.
Even if Crane is correct that CR 59.05 applies to criminal proceedings, it is not clear that the rule applies to all aspects of criminal procedure or what effect it has on the running of the time to file a notice of appeal. RCr 13.04 provides that the civil rules will be applicable to criminal proceedings, but only "to the extent [the civil rules are] not superseded by or inconsistent with the[] Rules of Criminal Procedure." RCr 11.42 provides a means to collaterally attack a sentence imposed. Though RCr 11.42 and CR 59.05 provide similar relief, we cannot say that RCr 11.42 is inconsistent with or supersedes CR 59.05. This is especially true when we consider that CR 59.05 allows for a motion to alter, amend, or vacate a "judgment" and RCr 11.42(7) contemplates the issuance of a "final order or judgment of the trial court in a proceeding brought under this rule." As such, we must admit that the statements in Crane and Silverburg were technically correct, at least insofar as we cannot say that any of the civil or criminal rules prohibits a defendant from filing a motion under CR 59.05 after the trial court rules on the RCr 11.42 motion.
That a defendant has a right to file such a motion, however, does not directly address the issue before us because the Commonwealth's ultimate claim is Appellant's notice of appeal was filed well outside the thirty-day time period that began running when the trial court overruled the RCr 11.42 motion. There is no question that Appellant's notice of appeal was not filed within thirty days of the overruling of the RCr 11.42 motion. The relevant question, then, is whether the timely filing of the CR 59.05 motion suspends the running of the thirty-days provided for in RCr 12.04(3).
Under the civil rules concerning appellate procedure, the filing of a CR 59.05 motion suspends the running of the time for an appeal, and the entry of an order overruling a CR 59.05 motion resets the time for appeal so that a party has the full thirty-days to begin the appeals process.6 Note, however, that this suspension is not an inherent aspect of CR 59.05 (or the rest of CR 59, for that matter); instead, the suspension of the running of the time for an appeal arises solely from the action of a specific civil rule, CR 73.02(1)(e), concerning appellate procedure.
While many of the civil rules are applicable to criminal proceedings through the action of RCr 13.04, as noted above, those civil rules that conflict with or have been superseded by the criminal rules are not applicable. The criminal rules contain their own rules of appellate procedures, and, as such, the appellate rules found in the civil rules have been superseded by analogous provisions of the criminal rules. The criminal rules even go so far as to specifically reincorporate a number of the civil rules pertaining to appeals into the criminal rules.7 As such, only those appellate civil rules listed in RCr 12.02 apply to criminal appellate procedures. The civil rule that suspends the running of the time for an appeal — CR 73.02(1)(e) — is not listed in RCr 12.02.
This reading of the rules, when combined with our earlier case law, means that a CR 59.05 motion can be filed in a criminal case, but such a filing would have no real effect because the time for an appeal still runs after the filing of a CR 59.05 motion. Because the...
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