Summary
In Anderson, 2014 WL 812886 at 5, the Court of Appeals suggested the adoption of the prison mailbox rule to both notices of appeal and RCr 11.42 motions would "yield the most equitable, reasonable and fair result" but applied equitable tolling.
Summary of this case from McAlister v. CommonwealthOpinion
NO. 2012-CA-001869-MR
02-28-2014
LOUIS ANDERSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Suzanne Hopf Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Nate T. Kolb Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MERCER CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 06-CR-00001
OPINION
REVERSING AND REMANDING
BEFORE: CAPERTON, COMBS, AND THOMPSON, JUDGES. CAPERTON, JUDGE: The Appellant, Louis Anderson, appeals the January 20, 2012, order of the Mercer Circuit Court, denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion without an evidentiary hearing. Upon review of the record, the arguments of the parties and the applicable law, we reverse and remand this matter for additional proceedings consistent with this opinion.
On February 10, 2006, the Mercer County Grand Jury returned an indictment charging Anderson with murder and robbery in the first degree. Those charges resulted from an incident in which Anderson entered Louise Pulliam's house and stabbed her to death. Anderson was a minor at the time of the offense.
On October 22, 2007, Anderson withdrew his plea of not guilty and decided to plead guilty instead. The Commonwealth did not provide a sentencing recommendation, and the circuit court entered judgment on a guilty plea on the same day. On November 15, 2007, Anderson was sentenced to life in prison without parole. Subsequently, the Kentucky Supreme Court overturned Anderson's sentence because he was a youthful offender and, as such, was not eligible for life without parole. Consequently, Anderson was resentenced on December 10, 2008, this time to life without parole for twenty-five years.
On December 7, 2011, Anderson filed a pro se motion for an extension of time to file a RCr 11.42 motion. The circuit court denied that motion finding that although Anderson set forth two potential exceptions to the RCr 11.42 deadline, he failed to demonstrate why he should qualify for those exceptions.
On December 8, 2011, Anderson signed his pro se motion to vacate pursuant to RCr 11.42. The Eastern Kentucky Correctional Complex prison mail log indicates that Anderson placed his motion in the prison mail system on December 9, 2011. His motion was not officially filed by the Mercer Circuit Clerk until December 13, 2011. On January 20, 2012, the circuit court denied Anderson's motion as untimely. Anderson now appeals to this Court.
Accompanying Anderson's RCr 11.42 motion was a memorandum of law in support thereof, and a motion for an evidentiary hearing.
On appeal, Anderson argues that the Mercer Circuit Court erred when it dismissed his motion to vacate pursuant to RCr 11.42 because it should have applied the prison mailbox rule and because of equitable tolling. Anderson argues that by declining to apply the prison mailbox rule to his case, the court violated his due process and equal protection rights and his right to fundamental fairness in the proceedings against him. Anderson notes that he provided proof that he tendered his RCr 11.42 motion to prison officials to be placed in the mail three days before the three-year time limit ran. Moreover, he argues that pursuant to the unpublished opinion of this Court in Kollros v. Commonwealth, 2012 WL 4839557 (Ky. App. 2012), discussed herein, infra, under the more liberal thirty-day "finality" provisions of RCr 11.42 (8) and (10) that his motion was not due to be filed until January 9, 2012, and was therefore well within the filing deadline.
Anderson notes that the judgment was entered on November 15, 2007, but a resentencing took place on December 10, 2008. He placed his motion in the prison mail on December 9, 2011, and it was filed in the Mercer Circuit Court on December 13, 2011. Under a strict three-year rule (sans the thirty-day finality provisions of RCr 11.42(8) and (10)) the filing was due on December 12, 2011, due to the weekend.
RCr 11.42(8) provides that: "The final order of the trial court on the motion shall not be effective until expiration of time for notice of appeal under RCr 12.04 and shall remain suspended until final disposition of an appeal duly taken and perfected."
RCr 11.42 provides that:
(8) The final order of the trial court on the motion shall not be effective until expiration of time for notice of appeal under RCr 12.04 and shall remain suspended until final disposition of an appeal duly taken and perfected.
. . . .
(10) Any motion under this rule shall 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; orIf the judgment becomes final before the effective date of this rule, the time for filing the motion shall commence upon the effective date of this rule. If the motion qualifies under one of the foregoing exceptions to the three year time limit, the motion shall be filed within three years after the event establishing the exception occurred. Nothing in this section shall preclude the Commonwealth from relying upon the defense of laches to bar a motion upon the ground of unreasonable delay in filing when the delay has prejudiced the Commonwealth's opportunity to present relevant evidence to contradict or impeach the movant's evidence.
(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
In response, the Commonwealth argues that the circuit court's denial of Anderson's RCr 11.42 motion as untimely was proper. It notes that RCr 12.04(5) specifically references notices of appeal but does not say anything about applying the rule to any other type of motion or filing, and argues that no courts have interpreted RCr 12.04(5) to apply to substantive post-conviction motions. The Commonwealth argues that the proper procedure for creating a prison mailbox rule for substantive motions would be via amendment to the Rules of Criminal Procedure. Accordingly, the Commonwealth asserts that if Anderson's motion is to be considered timely, it must be under Robertson's equitable tolling analysis. The Commonwealth asserts that if an equitable tolling analysis is applied, this case should be remanded for an evidentiary hearing on whether the limitation period should have been equitably tolled.
As set forth herein, infra, Robertson v. Commonwealth, 177 S.W.3d 789 (Ky. 2005), was expressly overruled by our Kentucky Supreme Court in Hallum v. Commonwealth, 347 S.W.3d 55 (Ky. 2011). The Commonwealth argues that while Hallum expressly overruled Robertson with respect to application of an equitable tolling analysis, it is unclear whether the equitable tolling analysis set forth in Robertson can be applied to substantive RCr 11.42 motions because the Hallum case involved a belated notice of appeal. We discuss this issue infra.
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Additionally, the Commonwealth argues that the policy considerations underlying the prison mailbox rule are not compelling as applied to substantive RCr 11.42 motions because its three-year limitations period is much longer than the thirty-day period applied to notices of appeal and because RCr 11.42 provides a number of exceptions to the three-year limitation period if certain conditions are met.
Finally, the Commonwealth argues that the constitutional arguments made by Anderson are not persuasive and do not mandate a specific result here. The Commonwealth asserts that there is no evidence sub judice that prison officials took any affirmative steps to prevent Anderson's motions from being timely filed and, accordingly, there is insufficient basis to argue that Anderson was denied his right to access the courts.
In reviewing this matter we note that our determination centers upon our interpretation of applicable statutes and accompanying case law. Accordingly, our review is de novo. With this in mind, we note that our United States Supreme Court created the federal prison mailbox rule in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), wherein the Court held that a pro se prisoner's notice of habeas corpus appeal is considered filed when the prisoner delivers the notice to prison authorities for forwarding to the court.
Our Kentucky Supreme Court first considered the prison mailbox rule in Robertson v. Commonwealth, 177 S.W.3d 789 (Ky. 2005). That case involved a substantive RCr 11.42 motion placed in the prison mail system within the prescribed three-year limitation period but not officially filed by the court until after the period expired. In Robertson, our Supreme Court declined to adopt the prison mailbox rule and instead applied the equitable tolling analysis set forth in Dunlap v. United States, 250 F.3d 1001 (6th Cir. 2001).
Subsequently, however, RCr 12.04 was amended to include a prison mailbox rule for notices of appeal. The "mailbox rule" referred to by Anderson herein is set forth in RCr 12.04(5). That provision provides that:
(5) If an inmate files a notice of appeal in a criminal case, the notice shall be considered filed if its envelope is officially marked as having been deposited in the institution's internal mail system on or before the last day for filing with sufficient First Class postage prepaid.
Our Kentucky Supreme Court applied the prison mailbox rule in Hallum v. Commonwealth, 347 S.W.3d 55 (Ky. 2011). Therein, the Court stated:
Almost seventy years ago, the Supreme Court of the United States proclaimed that it is "beyond doubt that prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (stating that the Court recognized this right in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941)). The Court further stated that this fundamental right required "inmate access to the courts [that] is adequate, effective, and meaningful." Id. at 822, 97 S.Ct. 1491.Hallum v. Commonwealth, 347 S.W.3d 55 at 56-57. In Hallum, the Court went on to address the application of the equitable tolling test utilized in Robertson, stating:
This constitutional axiom is no less applicable during the inmate's appeal, especially when he is without the assistance of an attorney to help in filing his notice of appeal. As such, the High Court recognized the plight of pro se prisoners constricts their ability to "take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline." Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Prisoners lack the ability to personally deliver the notice, mail and track the notice through the U.S. Postal Service, or phone the court to ensure receipt. Id. at 271, 108 S.Ct. 2379. Consequently, the Court adopted the prison mailbox rule, which treated the pro se prisoner's notice of appeal as "filed" when he delivered it to the authorities for forwarding to the trial court. Id. at 270, 108 S.Ct. 2379.
Finally, in light of the recent rule change creating the prison mailbox rule, we must assess the continued viability of the judicially-created equitable tolling test. In Robertson v. Commonwealth, a factually parallel case involving dismissal due to the untimely filing of a pro se prisoner's motion, a narrow majority of this Court adopted the equitable tolling test—a measure applicable to prisoners who attempt to get documents timely filed, yet fail. We considered adopting a prison mailbox rule, but declined due to our reluctance to amend rules withoutHallum at 58-59. Thus, the Court expressly overruled Robertson, though Robertson involved a substantive RCr 11.42 motion instead of a notice of appeal as was at issue in Hallum.
following the formal procedures. Id. at 791. Instead, we adopted the United States Court of Appeals for the Sixth Circuit's five-factor equitable tolling test. Under this amorphous balancing test, the trial court, before determining whether the deadline is tolled, must consider:
(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim.Id. at 792 (quoting Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir.2001)).
At the outset, we note that the application of the multi-factor equitable tolling test is arduous, "requir[ing] that the trial court engage in a more robust examination of the circumstances." Id. at 796 (Roach, J., dissenting). Moreover, "we have a finite number of trial judges and time to handle an ever increasing docket of cases—and by depending on 'equitable tolling' to solve the problem, we have created another hearing with multiple briefs and evidentiary questions prior to the trial court's thoughtful review and ruling." Id. at 795 (Scott, J., concurring in part and dissenting in part). Furthermore, the adoption of equitable tolling test was a compromise provision, since there was no prison mailbox provision in place.
With the recent enactment of the prison mailbox rule, the burdensome equitable tolling test is now duplicative and superfluous, with its utility marginalized. "Equity is the correction of that wherein the law, by reason of its universality, is deficient." Houston v. Steele, 28 S.W. 662, 663 (Ky. 1894). The prison mail box rule was crafted to remedy the procedural deficiency our rules posed to pro se inmates seeking to appeal; thus, there is
no longer a need for Robertson's equitable tolling provision. Consequently, we overrule Robertson.
In addressing whether Robertson's equitable tolling analysis retains continued validity in light of the Supreme Court's decision in Hallum, we review the unpublished decision of this Court in Kollros v. Commonwealth, 2012 WL 4839557 (Ky. App. 2012), pursuant to Kentucky Rules of Civil Procedure (CR) 76.28(4). In Kollros, this Court found that Kollros's RCr 11.42 motion was clearly untimely. Nevertheless, in discussing the filing of RCr 11.42 motions, we clearly stated that the three-year time limitation may be equitably tolled where the defendant has acted with due diligence to file the motion within the required time period.
The Commonwealth has attempted to distinguish Kollros from the matter sub judice by arguing that it did not involve a motion placed in the prison mail system within a prescribed limitation period, but instead involved a motion that was untimely by any measure. Upon review, we do not find that distinction to be determinative. In Kollros, we clearly stated that "The three-year time limit for filing a RCr 11.42 motion may be equitably tolled where the defendant has acted with due diligence to file the motion within the time period." Kollros at 1, citing Robertson v. Commonwealth, 177 S.W.3d 789, 792 (Ky. 2005), overruled on other grounds in Hallum v. Commonwealth., 347 S.W.3d 55 (Ky. 2011). We agree with the reasoning set forth in Krollos, and find it to be applicable to the matter sub judice.
In so finding, we note that equitable tolling is a policy which considers the fact that a pro se litigant does not have the same control over his court filings as a person who is not in custody. Certainly, due process requires that prisoners have access to the courts. See Bounds v. Smith, 430 U.S. 817, 821-22, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977), citing Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). This access is protected by the First Amendment right to petition for redress of grievances and the Fourteenth Amendment guarantees of substantive and procedural due process. Jackson v. Procunier, 789 F.2d 307, 310 (5th Cir. 1986). Anderson was reliant upon prison officials to place his filings in the mail. Accordingly, we believe equitable tolling was appropriate in this instance and that the court exceeded its discretion in declining to apply those principles below.
While the Commonwealth argues that an evidentiary hearing is warranted upon reversal on whether Anderson's RCr 11.42 was timely filed, we disagree. RCr 11.42(1) requires any motion filed under the rule to be filed "within three years after the judgment becomes final." A review of the record reveals that proof has clearly been provided to indicate that the RCr 11.42 motion was placed in the prison mail system prior to the expiration of the three-year time limit.
While the mailbox rule was not expressly adopted by our Supreme Court in Hallum, we believe that consistency in the application of the prison mailbox rule to both notices of appeal and RCr 11.42 motions will yield the most equitable, reasonable and fair result. Regardless, Anderson presents equitable arguments that when gauged under the Robertson factors weigh in favor of our finding that the application of the equitable tolling analysis would attain the correct result. Accordingly, based on the facts before us and the applicable law, we can properly determine that Anderson's RCr 11.42 motion was timely filed and should be reinstated.
Wherefore, for the foregoing reasons, we hereby reverse the January 20, 2012, order of the Mercer Circuit Court, denying his RCr 11.42 motion without an evidentiary hearing, and remand this matter for additional proceedings consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Suzanne Hopf
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Nate T. Kolb
Assistant Attorney General
Frankfort, Kentucky