Nathan Kittinger v. Commonwealth of Kentucky

RENDERED: APRIL 9, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1894-MR
NATHAN KITTINGER APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
v. HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NO. 17-CR-00292
COMMONWEALTH OF KENTUCKY APPELLEE
AND
NO. 2019-CA-1895-MR
NATHAN KITTINGER APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
v. HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NO. 17-CR-00334
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
ACREE, JUDGE: Nathan Kittinger appeals the Hopkins Circuit Court’s
December 11, 2019 order denying his motion for shock probation finding it lacked
jurisdiction. We affirm.
BACKGROUND
Kittinger pleaded guilty to a myriad of crimes, resulting in a prison
sentence of seven years. While in prison Kittinger completed a long-term drug
rehabilitation program. He continued to participate in the program for another 90
days as a Peer Mentor.
Some six months into his sentence, Kittinger timely filed a motion for
shock probation. The Commonwealth opposed the motion. However, Kittinger’s
case sat idle for almost six months. On December 11, 2019, eleven months after
his incarceration, the circuit court eventually entered an order stating:
These cases are before the court on the Defendant,
Nathan Kittinger’s, motions for shock probation. Mr.
Kittinger’s judgments and sentences on a plea of guilty
were entered January 11, 2019, a motion for shock
probation on each case were [sic] filed June 28, 2019.
These files were not delivered to the circuit judge’s office
until it was called to the undersigned’s attention that some
files that had shock probation motions filed and pending
had not been delivered to this circuit judge’s office. Staff
immediately began to examine files and on December 3,
2019 discovered a small number of files that have shock
probation motions filed with the clerk but not submitted to
the judge. It appears the shock probation motions in Mr.
Kittinger’s files were filed within the 180-day time period.
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However, KRS[1] 439.265(2) provides that the court shall
consider a shock probation motion within 60 days of filing
and enter its ruling within 10 days thereafter.
It appears that this court no longer has jurisdiction
to rule on the motions for shock probation. If counsel
wishes to submit argument for reconsideration this court
is open thereto.
(Trial Record (T.R.) p. 86-87 and 91-92). This appeal followed.
ANALYSIS
Although KRS 439.265(2) prohibits appellate review of “[a]ny court
order granting or denying a motion to suspend further execution of sentence[,]” the
statute does not prevent this Court from determining whether the circuit court
properly exercised or declined to exercise jurisdiction to enter an order in the first
place. Commonwealth ex rel. Hancock v. Melton, 510 S.W.2d 250 (Ky. 1974);
Terhune v. Commonwealth, 907 S.W.2d 779 (Ky. App. 1995). This Court has
jurisdiction to consider that jurisdictional question, provided the appellant
preserved his claim of error in the circuit court.
“It is an unvarying rule that a question not raised or adjudicated in the
court below cannot be considered when raised for the first time in this court.”
Combs v. Knott Cty. Fiscal Court, 283 Ky. 456, 141 S.W.2d 859, 860 (1940); see
Benefit Ass’n of Ry. Employees v. Secrest, 239 Ky. 400, 39 S.W.2d 682, 687
1
Kentucky Revised Statutes.
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(1931). In this case, the circuit court invited Kittinger to move for reconsideration
of the court’s ruling on jurisdiction and to support the motion with supporting
argument, but he never availed himself of that opportunity.
In this Court, that missed opportunity requires dismissal. The only
argument Kittinger makes before this Court is not preserved for appellate review.
We are sympathetic to Kittinger’s plight because the circuit court
failed to render a decision within the statutory deadlines. The circuit court must
allocate its limited judicial resources as it best sees fit. Similarly, any solution to
the problem rests with the circuit court’s administration. It is beyond the authority
of this Court to remedy.
CONCLUSION
For the foregoing reasons, the judgment of the Hopkins Circuit Court
is affirmed.
DIXON, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Shannon Dupree Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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