Earl Willis MacKey v. Commonwealth of Kentucky ( 2020 )

RENDERED: SEPTEMBER 11, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-000656-MR
EARL MACKEY APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JOHN E. REYNOLDS, JUDGE
ACTION NO. 18-CR-00381
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE: KRAMER, LAMBERT, AND TAYLOR, JUDGES.
LAMBERT, JUDGE: Earl Mackey has appealed from the Fayette Circuit Court’s
April 4, 2019, order denying his renewed motion for recalculation of good time
credit. We dismiss the appeal as moot.1
1
The parties should take note that this decision is designated as an “opinion and order” and,
therefore, falls under Kentucky Rules of Civil Procedure (CR) 76.38. Thus, petitions for
rehearing are not authorized under CR 76.32(1)(a). However, a motion to reconsider may be
filed within ten days after the entry of the opinion and order. CR 76.38(2).
In April 2018, the Fayette County grand jury indicted Mackey on two
charges arising from a shoplifting incident at a Dollar General store in Lexington,
Kentucky, where he had been previously trespassed, or banned from the store. He
was charged with theft by unlawful taking under $500.00 pursuant to Kentucky
Revised Statutes (KRS) 514.030, a Class A misdemeanor, and with first-degree
fleeing or evading police (on foot) pursuant to KRS 520.095, a Class D felony.
Mackey and the Commonwealth reached a plea agreement, and he pled guilty to
the theft charge and an amended charge of second-degree fleeing or evading
police, making that charge a misdemeanor. The circuit court accepted his plea and
later sentenced Mackey to two twelve-month sentences to be served concurrently
with credit for time he had served in custody. At the time of his final sentencing in
November 2018, Mackey had 152 days of custody credit.
In January 2019, Mackey, through his attorney, filed a motion for
recalculation of good time credit pursuant to KRS 441.127(2)(e). He had been
incarcerated in the Fayette County Detention Center, where he had been informed
by a correctional officer of the policy that a county inmate can only accrue good
time credit once he has been convicted. He requested that the court order the
detention center to award him any good time credit he had earned during the time
he spent in pre-trial incarceration. While he did not request that the court order a
particular amount of good time to be credited, Mackey stated he would
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administratively challenge the detention center’s calculation if necessary. Mackey
filed a renewed motion in March 2019 seeking the same relief. The court denied
the renewed motion on April 4, 2019, and this appeal followed.2
Before we may reach the merits of Mackey’s appeal, we must address
his counsel’s motion to withdraw her representation of him and to file a brief
pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L.
Ed. 2d 493 (1967) (“[I]f counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request
permission to withdraw. That request must, however, be accompanied by a brief
referring to anything in the record that might arguably support the appeal.”).3
Counsel maintains that, because Mackey was no longer incarcerated and would
have served out his sentence by June 8, 2019, any appeal related to good time
credit is frivolous. She explained that Mackey was homeless and could not be
located by the Department of Public Advocacy. Therefore, counsel could not
discuss with Mackey whether he would agree to dismiss the appeal. We agree with
2
In the notice of appeal, Mackey stated that he was appealing from the final judgment entered in
November 2018 as well as from the order denying his motion related to good time credit. This
Court ordered Mackey to show cause why the appeal should not be dismissed as to the final
judgment as it was not timely filed. In response, Mackey moved the court to dismiss the appeal
with respect to the final judgment and to permit him to proceed with his appeal of the order
related to good time credit. This Court did so in an order entered July 11, 2019.
3
On December 13, 2019, this Court passed counsel’s motion to withdraw for consideration by
the merits panel, ordered the Anders brief filed, and gave Mackey sixty days to file a pro se
supplemental brief. Mackey did not file a supplemental brief.
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counsel that the appeal has no merit. It became moot when Mackey was released
and served out his twelve-month sentence, as we shall address below. Therefore,
we shall grant the passed motion and permit counsel to withdraw.
In the Anders brief, counsel argues that the circuit court abused its
discretion when it failed to hold an evidentiary hearing on whether Mackey should
have been awarded good time credit for the time he spent in jail prior to the entry
of the final judgment. However, counsel was “unsure what relief can be provided
to Mr. Mackey at this point” as he had served out his sentence.
The Commonwealth argues that Mackey’s appeal is moot because he
had completed service of his sentence. Therefore, no actual controversy exists to
be decided. We agree.
Kentucky courts have long recognized that “unless there is an actual
case involving a present, ongoing controversy, the issues surrounding it become
moot.” Commonwealth, Dep’t of Corrections v. Engle, 302 S.W.3d 60, 63 (Ky.
2010) (citations omitted).
As our courts have long recognized, “[a] ‘moot case’ is
one which seeks to get a judgment . . . upon some matter
which, when rendered, for any reason, cannot have any
practical legal effect upon a then existing controversy.”
. . . The general rule is, and has long been, that “where,
pending an appeal, an event occurs which makes a
determination of the question unnecessary or which
would render the judgment that might be pronounced
ineffectual, the appeal should be dismissed.” The
concern underlying this rule as to mootness is ultimately
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the role of the courts within our system of separated
powers, a role that does not extend to the issuance of
merely advisory opinions.
Morgan v. Getter, 441 S.W.3d 94, 98-99 (Ky. 2014) (citations omitted). See also
Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992) (“Our courts do not function to
give advisory opinions, even on important public issues, unless there is an actual
case in controversy.”).
Several exceptions to the mootness rule have emerged. One applies to
situations “when a dispute is capable of repetition, yet evading review.” Engle,
302 S.W.3d at 63. Another exception is for questions of “substantial public
interest” as explained in Morgan, supra:
Unlike the two-element “capable of repetition”
exception, the “public interest” exception commonly has
three elements, all of which must be clearly shown:
The public interest exception allows a court
to consider an otherwise moot case when (1)
the question presented is of a public nature;
(2) there is a need for an authoritative
determination for the future guidance of
public officers; and (3) there is a likelihood
of future recurrence of the question.
441 S.W.3d at 102 (quoting In re Alfred H.H., 910 N.E.2d 74, 80 (Ill. 2009)). A
third is the collateral consequences exception:
An example of the “collateral consequences” exception is
where a criminal sentence is expired but this does not
render the appeal of the judgment of conviction moot
“because there remain consequences of the conviction
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(such as the loss of various civil rights) deemed sufficient
to keep alive the appellant’s personal stake in the
outcome of the appeal.”
Calhoun v. Wood, 516 S.W.3d 357, 360 (Ky. App. 2017) (citation omitted).
We agree with the Commonwealth that this case does not meet any of
the exceptions to the mootness doctrine. There is no reasonable expectation that
Mackey would be subject to the same action again, and this does not meet the
public interest exception. We also hold that the collateral consequences exception
would not apply because this matter had to do with good time credit, not whether
Mackey was properly convicted. Furthermore, we agree with the
Commonwealth’s suggestion that Mackey’s argument should have been raised via
a declaration of rights action rather than in his criminal action. Therefore, we must
dismiss Mackey’s appeal as moot.
For the foregoing reasons, the passed motion to withdraw as counsel
is GRANTED and the above-styled appeal is ORDERED DISMISSED this date.
ALL CONCUR.
ENTERED: Sept. 11, 2020
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ANDERS BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Emily Holt Rhorer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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