Charles A. Frizzell Jr v. Commonwealth of Kentucky ( 2020 )


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  •                RENDERED: NOVEMBER 13, 2020; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2018-CA-1679-MR
    CHARLES A. FRIZZELL, JR.                                          APPELLANT
    APPEAL FROM GALLATIN CIRCUIT COURT
    v.         HONORABLE RICHARD A. BRUEGGEMANN, JUDGE
    ACTION NO. 13-CR-00009
    COMMONWEALTH OF KENTUCKY                                            APPELLEE
    OPINION
    VACATING AND REMANDING
    ** ** ** ** **
    BEFORE: MAZE, TAYLOR, AND K. THOMPSON, JUDGES.
    TAYLOR, JUDGE: Charles A. Frizzell, Jr., brings this appeal from an October 5,
    2018, Order of the Gallatin Circuit Court denying his Kentucky Rules of Criminal
    Procedure (RCr) 11.42 motion without an evidentiary hearing. We vacate and
    remand.
    On February 11, 2013, Frizzell was indicted by a Gallatin County
    Grand Jury upon one count of each of the following: manufacturing
    methamphetamine, possession of drug paraphernalia, possession of marijuana, and
    with being a persistent felony offender in the second degree. Pursuant to a plea
    agreement with the Commonwealth, Frizzell pleaded guilty to unlawful possession
    of methamphetamine precursors, possession of drug paraphernalia, and possession
    of marijuana. By Final Judgment and Sentence of Imprisonment entered July 22,
    2013, Frizzell was sentenced to a total of five-years’ imprisonment.1
    On September 14, 2016, Frizzell, pro se, filed a Motion to Vacate, Set
    Aside, or Correct Sentence Pursuant to RCr 11.42. Frizzell also filed a supporting
    memorandum along with a Motion to Proceed in Forma Pauperis and for
    Appointment of Counsel. By Order entered November 7, 2016, the trial court
    appointed counsel for Frizzell. Counsel then filed a supplement to Frizzell’s pro se
    RCr 11.42 motion on May 10, 2018, that included a motion for an evidentiary
    hearing. Frizzell’s appointed counsel raised additional grounds to support the
    motion. The Commonwealth filed an untimely response to the RCr 11.42 motion,
    which the trial court elected not to consider. By Order entered October 5, 2018,
    the court denied Frizzell’s RCr 11.42 motion without an evidentiary hearing. This
    appeal follows.
    A guilty plea must be entered into intelligently and voluntarily. Bronk
    v. Commonwealth, 
    58 S.W.3d 482
    , 486 (Ky. 2001). And, to prevail upon a claim
    1
    Charles A. Frizzell, Jr.’s plea was not conditional nor did he appeal his conviction and
    challenge the search of the premises which resulted in his arrest.
    -2-
    of ineffective assistance of counsel involving a guilty plea, a defendant must
    demonstrate: “(1) that counsel made errors so serious that counsel’s performance
    fell outside the wide range of professionally competent assistance; and (2) that the
    deficient performance so seriously affected the outcome of the plea process that,
    but for the errors of counsel, there is a reasonable probability that the defendant
    would not have pleaded guilty, but would have insisted on going to trial.”
    Id. at 486-87.
    See also Strickland v. Washington, 
    466 U.S. 668
    (1984). An evidentiary
    hearing is required only where the allegations contained in the RCr 11.42 motion
    are not refuted upon the face of the record. Fraser v. Commonwealth, 
    59 S.W.3d 448
    , 452 (Ky. 2001).
    We begin by noting that the Commonwealth has submitted a three-
    page brief asserting only that the trial court lacked jurisdiction to consider
    Frizzell’s RCr 11.42 motion because the motion was not filed within three years of
    the final judgment entered on July 22, 2013, as required by RCr 11.42(10).2 The
    Commonwealth did not raise this issue below, even in its untimely filed response
    that was effectively stricken by the trial court. However, RCr 11.42(4) does not
    require the Commonwealth to file a response to the defendant’s motion. It merely
    gives the Commonwealth twenty days to file a response if it chooses to do so. The
    2
    The motion should have been filed not later than July 22, 2016. The motion was filed on
    September 14, 2016.
    -3-
    trial court remains obligated to determine whether the allegations in the motion
    state sufficient grounds for relief or were refuted by the record.
    RCr 11.42 (10) provides that any motion under this rule:
    [S]hall be filed within three years after the judgment
    becomes final, unless the motion alleges and the movant
    proves either:
    (a) that the facts upon which the claim is
    predicated were unknown to the movant and could not
    have been ascertained by the exercise of due diligence; or
    (b) that the fundamental constitutional right
    asserted was not established within the period provided
    for herein and has been held to apply retroactively.
    (Emphasis added.)
    The record reflects that Frizzell attempted to obtain work product
    records from his attorney and the circuit court clerk as early as June 2015.
    Frizzell’s petition to compel production of those records was granted by order
    entered February 8, 2016. His former attorney filed an affidavit in the record on
    August 28, 2017, declaring that all of his files and records pertaining to Frizzell’s
    case had been lost. Whether Frizzell in good faith had exercised due diligence to
    obtain records and information to support his untimely RCr 11.42 motion was left
    to the sound discretion of the trial court, which was not considered by the trial
    court below.
    -4-
    In Bush v. Commonwealth, 
    236 S.W.3d 621
    , 622-23 (Ky. App. 2007),
    another panel of this Court held that a trial court was without jurisdiction to
    entertain a defendant’s RCr 11.42 motion when it was filed outside the three-year
    limitation period set out in RCr 11.42(10). Under Bush, this Court is likewise
    without jurisdiction to entertain the appeal in this case.
    Id. at 623.
    Whether the
    allegations and facts upon which the RCr 11.42 motion was filed in this case could
    have been identified prior to the expiration of the three-year period is unknown as
    the trial court did not consider the issue below, including the tolling provisions set
    out in RCr 11.42(10)(a) and (b). This Court is not in a position to consider the
    tolling issue and is thus faced squarely with a jurisdictional quandary.
    Whether a trial court has subject matter jurisdiction to hear a case may
    be raised by a party or a court at any time in the proceeding, even on appeal, and
    cannot be waived. Commonwealth v. Groves, 
    209 S.W.3d 492
    , 496 (Ky. App.
    2006). However, our quandary in this case is compounded because arguably
    compliance with RCr 11.42(10) looks to compliance by a party with a procedural
    rule that determines particular case jurisdiction by the trial court, not subject matter
    jurisdiction. Commonwealth v. Steadman, 
    411 S.W.3d 717
    , 722-24 (Ky. 2013).
    The Steadman case involved a restitution issue raised by the Commonwealth more
    than ten days after the judgment was entered. See Kentucky Rules of Civil
    Procedure (CR) 59.02 and CR 59.05. Once more than ten days had expired, the
    -5-
    trial court lost particular case jurisdiction. 
    Steadman, 411 S.W.3d at 724
    . Because
    Steadman did not object to a belated restitution hearing, the Supreme Court held he
    had waived the trial court’s lack of particular case jurisdiction.
    Id. at 724-25.
    In
    other words, a court’s lack of jurisdiction over a particular case may be waived by
    a party.
    Id. at 725.
    The question thus arises under Steadman whether RCr 11.42(10) is a
    procedural rule that determines particular case jurisdiction, not subject matter
    jurisdiction, that was waived by the Commonwealth by failing to timely raise this
    issue before the trial court. If Steadman does apply to our case, arguably Bush was
    overruled by implication and the trial court had jurisdiction to consider the
    motion.3 However, based on the facts of Steadman, we cannot determine whether
    the Supreme Court intended to extend the reach of Steadman to other procedural
    rules like RCr 11.42(10) regarding the waiver of particular case jurisdiction
    limitations.
    Accordingly, until or unless the Supreme Court expands the
    application of Steadman, this Court has no alternative but to follow the mandate of
    Bush that this Court lacks jurisdiction to consider the merits of the appeal in this
    case until such time that the trial court considers the application of RCr 11.42(10)
    3
    In Bush v. Commonwealth, 
    236 S.W.3d 621
    (Ky. App. 2007), the opinion does not distinguish
    between subject matter jurisdiction and particular case jurisdiction, although the holding would
    seem to support dismissal based upon lack of subject matter jurisdiction.
    -6-
    and the tolling provisions set out therein. Bush is a published decision of this
    Court and the defendant did not seek discretionary review by the Supreme Court.
    Thus, Bush is a binding precedent. See Supreme Court Rule (SCR) 1.040(5). For
    Bush to be overruled by this Court, we would have to go en banc. See Taylor v.
    King, 
    345 S.W.3d 237
    , 242 (Ky. App. 2010) (citing SCR 1.030(7)(d)). We decline
    to seek en banc review, given this is an issue that can best be resolved by the
    Supreme Court as concerns the application of Steadman to RCr 11.42(10).
    In summation, we conclude that this Court lacks jurisdiction to
    consider this appeal until such time that the trial court has addressed the
    application of RCr 11.42(10) and the tolling provisions set out therein. We thus
    vacate and remand for the trial court to conduct an evidentiary hearing to
    determine if Frizzell raised sufficient grounds to file his RCr 11.42 motion outside
    the three-year limitation period. If not, the case shall be dismissed.
    However, if sufficient grounds are established to sustain the late
    filing, we direct the trial court to conduct an evidentiary hearing on whether
    Frizzell’s trial counsel was ineffective for failing to conduct a reasonable
    investigation.4 Based on our review of the record, we cannot determine whether
    4
    Frizzell’s claim that his counsel was ineffective for failing to file a motion to suppress for an
    alleged unreasonable search and seizure is refuted on the record below. As a visitor at the
    mobile home and not an overnight guest, he had no Fourth Amendment protection. Minnesota v.
    Carter, 
    525 U.S. 83
    , 90 (1998). Accordingly, Frizzell had no reasonable expectation of privacy
    while visiting the mobile home. Mackey v. Commonwealth, 
    407 S.W.3d 554
    , 557 (Ky. 2013).
    -7-
    counsel conducted an investigation of the case. In other words, the record does not
    refute this claim on its face and trial counsel had a duty to make a reasonable
    investigation or make a reasonable decision that a particular investigation was
    unnecessary. 
    Strickland, 466 U.S. at 691
    . We also refer the trial court to the
    Kentucky Supreme Court’s test to determine whether counsel was ineffective for
    failing to investigate as set out in Hodge v. Commonwealth, 
    68 S.W.3d 338
    , 344
    (Ky. 2001).
    Likewise, if the trial court does conduct an evidentiary hearing on the
    merits of the RCr 11.42 motion, we direct the court to address the propriety of
    assessing court costs and fines against Frizzell under Kentucky Revised Statutes
    (KRS) 23A.205 and KRS 534.030. We note that the imposition of an unauthorized
    sentence is correctable by an RCr 11.42 motion. Myers v. Commonwealth, 
    42 S.W.3d 594
    , 596 (Ky. 2001), overruled on other grounds by McClanahan v.
    Commonwealth, 
    308 S.W.3d 694
    (Ky. 2010). We further direct the trial court to
    make necessary findings of fact in addressing the application of KRS 23A.205 and
    KRS 534.030 to Frizzell’s claims.
    For the foregoing reasons, the October 5, 2018, Order of the Gallatin
    Circuit Court is vacated and remanded for proceedings consistent with this
    opinion.
    ALL CONCUR.
    -8-
    BRIEFS FOR APPELLANT:           BRIEF FOR APPELLEE:
    J. Ryan Chailland               Daniel Cameron
    Assistant Public Advocate       Attorney General of Kentucky
    Department of Public Advocacy
    Frankfort, Kentucky             Leilani K.M. Martin
    Assistant Attorney General
    Frankfort, Kentucky
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