Jewell Hall v. Commonwealth of Kentucky ( 2023 )

RENDERED: FEBRUARY 17, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0310-MR
JEWELL HALL APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE TIMOTHY KALTENBACH, JUDGE
ACTION NO. 19-CR-00563
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING IN PART, VACATING IN PART,
AND REMANDING
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BEFORE: JONES, KAREM, AND LAMBERT, JUDGES.
KAREM, JUDGE: Jewell Hall appeals pro se from the McCracken Circuit Court’s
order denying his motion to recuse, his motion to vacate conviction pursuant to
Kentucky Rules of Criminal Procedure (RCr) 11.42, and his motion pursuant to
Kentucky Rules of Civil Procedure (CR) 60.02. Upon careful review, we affirm
the denial of the motion to recuse, and the denial of the motion made pursuant to
CR 60.02. The portion of the order denying the RCr 11.42 motion is vacated, and
the matter is remanded to the trial court for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of the case were set forth by this Court in Hall’s
direct appeal:
On May 10, 2019, Paducah Police Department
Officer Justin Canup (“Canup”) was on patrol. At
approximately 6:00 a.m., Canup was dispatched to
respond to a report of a black SUV being stationary in the
middle of a street with the lights on and the engine
running. According to a citizen report, the SUV was
impeding traffic flow and had been idling there for at
least two hours.
When Canup arrived on the scene, he parked
behind a work van which had parked behind the black
SUV, ostensibly because the van could not proceed down
the street due to the SUV blocking the road. Canup,
without activating his emergency lights, parked his
cruiser behind the van and got out. He walked around
the rear of the work van and as he did so, the brake lights
on the SUV engaged and the SUV pulled away. The
SUV had tinted windows, so Canup had been unable to
determine if anyone was inside prior to it pulling away.
Canup got back in his cruiser and followed the
SUV. The SUV pulled into the parking lot of a nearby
apartment complex and Canup pulled up behind the SUV
with his lights now engaged. The Appellant, Jewell Hall
(“Hall”), alit from the driver’s side of the vehicle with his
hands above his head. He followed Canup’s instructions
to walk backwards towards Canup, with his arms raised.
Hall complied when he was instructed to lift his t-shirt
from his waist so Canup could ensure he had no weapon
tucked in his waistband. When backup arrived, Hall was
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handcuffed and officers approached the SUV to ensure
no one else was inside. They then determined that Hall
had been alone in the vehicle.
Canup spoke with Hall. Hall admitted that he had
been drinking the evening before and fell asleep, leaving
the vehicle running in the street while waiting for a
friend. Canup then conducted field sobriety tests and
determined Hall was impaired. Hall was handcuffed and
placed under arrest. The officers then searched the SUV
and a handgun was found by police in the center console.
Hall was charged with operating a motor vehicle while
under the influence of alcohol or drugs [DUI], first
offense, and possession of a handgun by a convicted
felon.
Hall v. Commonwealth, No. 2020-CA-1615-MR, 2022 WL 982043, at *1 (Ky.
App. Apr. 1, 2022).
Hall moved to suppress the evidence recovered as a result of the
police stop. Following a hearing, the motion was denied, and he was subsequently
convicted by a jury of the charge of possession of a handgun by a convicted felon.
The DUI charge was dismissed. On direct appeal, his sole argument was that the
trial court erred in denying his motion to suppress.
The trial judge presiding over Hall’s case formerly served as the
Commonwealth Attorney in McCracken County and, in 2001, he successfully
prosecuted Hall for attempted murder and possession of a handgun by a minor, for
which Hall received a sentence of seventeen and one-half years. He also
prosecuted Hall under a separate indictment for second-degree assault and
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possession of a handgun by a minor for which he received a five-year sentence.
The sentences were ordered to be run consecutively. Hall was released on parole
in 2016.
On March 11, 2021, Hall moved for bond pending the outcome of his
appeal. At the bond hearing, the trial judge indicated his familiarity with Hall’s
prior record, stating:
I am familiar that he was convicted of attempted murder
. . . a possession of a handgun charge after a conviction
for attempted murder involving shooting somebody . . .
so that’s in his CourtNet. In addition, I am familiar with
Mr. Hall from that as well.
The Commonwealth Attorney informed the trial court that Hall had also incurred a
new felony charge while he was out on bond in the present case.
The trial court denied bond and entered findings of fact and
conclusions of law supporting its decision in which it cited Hall’s prior convictions
for second-degree assault, attempted murder and two counts of possession of a
handgun by a minor, his conviction of the present charge of possession of a
handgun by a convicted felon that he committed within three years of the
expiration of his parole for the earlier violent offenses, and further noted that he
was indicted for a new felony offense of theft by deception under $10,000 while
out on bond. The trial court concluded that Hall would be a risk to the public if
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released on bond, based upon his prior convictions for violent offenses, his recent
conviction in the present case, and his new felony charge.
Hall then filed the three pro se motions which are at issue in this
appeal: (1) a motion to recuse the trial judge; (2) a motion to vacate conviction
pursuant to RCr 11.42 based on ineffective assistance of counsel; and (3) a motion
pursuant to CR 60.02, also seeking disqualification of the trial judge. The trial
court entered an order denying all the motions without a hearing. This appeal
followed. Further facts will be set forth below as necessary.
II. ANALYSIS
i. The motion to recuse was properly denied.
Hall argues that the trial judge should have disqualified himself from
the bond hearing because he was improperly influenced by his familiarity with
Hall’s record and by his previous service as the Commonwealth Attorney who
prosecuted Hall on multiple charges in 2001 resulting in the imposition of lengthy
sentences.
Hall relies on the following section of Kentucky Revised Statutes
(KRS) 26A.015, which provides in pertinent part that a “judge of the Court of
Justice . . . shall disqualify himself in any proceeding . . . [w]here he has
knowledge of any other circumstances in which his impartiality might reasonably
be questioned.” KRS 26A.015(2)(e). He also cites the Rules of the Supreme Court
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of Kentucky (SCR) 2.11, which similarly states that a judge is disqualified
whenever his impartiality might reasonably be questioned.
On appeal, the denial of a motion to recuse is reviewed de novo,
“[b]ecause an objective standard is appropriate for measuring whether a judge’s
impartiality might reasonably be questioned from the perspective of a reasonable
observer who is informed of all the surrounding facts and circumstances[.]”
Abbott, Inc. v. Guirguis, 626 S.W.3d 475, 484 (Ky. 2021), reh’g denied (Jun. 17,
2021).
Hall contends that the judge’s comments at the bond hearing that he
was “familiar” with Hall were inappropriately personal and, in any event, were
based on his knowledge of Hall as he was over twenty years before. Hall argues
that the judge’s comments favored the Commonwealth as evidenced by the
prosecutor’s remarks to the trial court at the end of the hearing: “The State just
asks that you take judicial notice of the record, you explained it better than I can,
with his previous convictions of the assault, the attempted murder along with the
case[.]” Hall claims that the judge’s lack of impartiality was further demonstrated
when he interrupted defense counsel while she was explaining that Hall’s past
charges were incurred when he was a teenager.
Although the judge did express his familiarity with Hall’s criminal
record, there is no indication of any personal animus in his remarks. In denying
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Hall’s motion to recuse, the judge pointed out that the information about Hall’s
criminal record is readily available to court personnel on CourtNet. Any judge
considering Hall’s motion for bond would have access to this information. As for
the interruption of defense counsel, the trial judge would have been well aware that
Hall was a juvenile when he incurred the earlier charges.
In regard to Hall’s allegation that the judge should have recused
himself because he served as the Commonwealth Attorney in his prior cases, our
statutes and case law are clear that recusal in these circumstances is only required
when the judge has participated in the current case, not a prior one. KRS 26A.015
provides that a judge disqualify himself in any proceeding “[w]here in private
practice or government service he served as a lawyer or rendered a legal opinion in
the matter in controversy[.]” KRS 26A.015(2)(b). In Matthews v. Commonwealth,
371 S.W.3d 743 (Ky. App. 2011), the appellant was found guilty of first-degree
trafficking and being a persistent felony offender following a trial in April 2010.
He argued that the judge should have recused himself because he served as the
Commonwealth Attorney when the appellant was convicted of trafficking in 1999.
A panel of this Court disagreed, in reliance on KRS 26A.015(2)(b) and
Commonwealth v. Carter, 701 S.W.2d 409, 410 (Ky. 1985), stating that his 1999
conviction was not the “matter in controversy” and “therefore the trial judge’s
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position at that time is immaterial as a basis for his current recusal.” Matthews,
371 S.W.3d at 753.
“Bail pending appeal is a matter that rests in the discretion of the trial
court. RCr 12.78(1). The decision of the trial court regarding bail should not be
disturbed by an appellate court unless it is clearly demonstrated that the trial judge
failed to exercise sound discretion.” Commonwealth v. Peacock, 701 S.W.2d 397,
398 (Ky. 1985). Furthermore, “[t]he presumption of innocence which is the basis
of all legitimate guarantees of bail no longer applies to a convicted defendant.
There is no absolute right to bail on appeal.” Id. The trial judge was acting well
within his discretion in considering Hall’s prior record in denying bond. Upon
review of the surrounding facts and circumstances, we conclude that a reasonable
observer would not question the trial judge’s impartiality and consequently he did
not err in denying the motion to recuse.
ii. The RCr 11.42 motion was denied on improper grounds and must be
remanded.
The trial court denied Hall’s RCr 11.42 motion alleging ineffective
assistance of counsel on the grounds that it was premature, as Hall’s conviction
was not final, and the case remained on appeal at the time the motion was filed.
The trial court may, however, consider allegations of ineffective assistance of
counsel while a movant’s direct appeal is pending. This approach is founded both
in policy considerations and the language of the Rule itself:
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The wisdom of permitting such an independent attack on
the conviction to proceed without awaiting the
disposition of the direct appeal should be apparent. In
the first place, the independent attack may render the
direct appeal unnecessary. In the second place, where a
question such as ineffective assistance of counsel is
raised, it would be far better to dispose of that question
promptly without waiting on the direct appeal to wend its
way through the appellate system. In this way, if counsel
has been ineffective, a new trial may be granted promptly
while witnesses are more likely to be available and able
to recall events with some clarity. . . . RCr 11.42(8) does
not suspend a trial court’s order in a proceeding under
RCr 11.42 until the direct appeal of a conviction is finally
disposed of. That section of the Rule suspends the
effectiveness of the court’s order in the collateral
proceeding until any appeal of the order itself is disposed
of.
Wilson v. Commonwealth, 761 S.W.2d 182, 184-85 (Ky. App. 1988).
The matter must therefore be remanded for the trial court to address
the merits of Hall’s RCr 11.42 motion. The trial court must review the record and
determine whether “the motion on its face states grounds that are not conclusively
refuted by the record and which, if true, would invalidate the conviction.” Lewis v.
Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967); see also Harper v.
Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998). The trial court must also
conduct an evidentiary hearing on the motion, but only “if there is a material issue
of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved,
by an examination of the record.” Fraser v. Commonwealth, 59 S.W.3d 448, 452
(Ky. 2001) (citations omitted); RCr 11.42(5).
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iii. The trial court did not abuse its discretion in denying the CR 60.02 motion
Finally, Hall argues that the trial court erred in denying his motion
pursuant to CR 60.02. CR 60.02 motions are limited to afford special and
extraordinary relief not available in other proceedings. McQueen v.
Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). We review the denial of a CR
60.02 motion for an abuse of discretion. Partin v. Commonwealth, 337 S.W.3d
639, 640 (Ky. App. 2010), overruled on other grounds by Chestnut v.
Commonwealth, 250 S.W.3d 288 (Ky. 2008). The test for abuse of discretion is
whether the trial court’s decision was “arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999) (citations omitted). Absent a “flagrant miscarriage of justice,”
we will affirm the trial court. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.
1983). Hall’s arguments seeking relief under CR 60.02 are substantially the same
as those presented in his separate motion to recuse, relating to the trial judge’s
comments at the bond hearing, his familiarity with Hall’s criminal record, and his
involvement as the prosecutor in Hall’s earlier cases. We reviewed these
arguments earlier in this Opinion and concluded that they are without merit.
Because there were no grounds for the trial judge to recuse himself, the denial of
the CR 60.02 motion was not an abuse of discretion.
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III. CONCLUSION
The trial court’s order of February 9, 2022, is affirmed insofar as it
denied the motion to recuse, and the motion made pursuant to CR 60.02. The
portion of the order denying the RCr 11.42 motion is vacated, and the case is
remanded solely for the trial court to address and rule on the merits of that motion
after reviewing the record and, if it deems it necessary, conducting an evidentiary
hearing.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jewell Hall, pro se Daniel Cameron
Hopkinsville, Kentucky Attorney General of Kentucky
Mark D. Barry
Assistant Attorney General
Frankfort, Kentucky
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