Anthony Arnold v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: May 9, 2024
• Docket: 2023 CA 000298
• Status: Unknown

Opinion

RENDERED: MAY 10, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2023-CA-0298-MR

ANTHONY ARNOLD APPELLANT

APPEAL FROM GALLATIN CIRCUIT COURT v. HONORABLE JAMES R. SCHRAND, II, JUDGE ACTION NO. 21-CR-00216

COMMONWEALTH OF KENTUCKY APPELLEE

AND

NO. 2023-CA-0382-MR

APPEAL FROM GALLATIN CIRCUIT COURT v. HONORABLE JAMES R. SCHRAND, II, JUDGE ACTION NO. 21-CR-00216

COMMONWEALTH OF KENTUCKY APPELLEE OPINION AND ORDER AFFIRMING AS TO NO. 2023-CA-0298-MR AND DISMISSING AS TO NO. 2023-CA-0382-MR

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; A. JONES AND LAMBERT, JUDGES.

JONES, A., JUDGE: Anthony Arnold has filed two appeals from a March 9, 2023

order of the Gallatin Circuit Court which, consistent with a jury verdict, found him

guilty of being a felon in possession of a firearm in violation of Kentucky Revised

Statute (KRS) 527.040, and which sentenced him to a term of imprisonment. In

both appeals, he raises the same argument: In his view, that statute is

unconstitutional.

Why he raised the same argument twice through two separate appeals

of the same judgment owes to a clerical error of his trial counsel. In his latter

notice of appeal (which initiated Appeal No. 2023-CA-0382-MR), Arnold

explained: “This is an amended notice of appeal, as the notice originally filed

listed the circuit court as Owen Circuit Court, this notice and the included

documents are amended to note Gallatin Circuit Court as being the court the appeal

is originating from.” We do not fault Arnold for zealously guarding his appellate

rights. However, Arnold’s first notice of appeal (which initiated Appeal No. 2023-

CA-0298-MR) was already effective, as it substantially complied with our

appellate rules. Despite his counsel’s error in stating “Owen” rather than

-2- “Gallatin” in that first notice, it was unmistakably from Gallatin Circuit Court

because: (1) it bore a “filed” stamp from Gallatin Circuit Court; and (2) it further

provided, in its body, “Please take notice that the foregoing Motion [sic] was filed

with the Gallatin County Circuit Court Clerk on this the 10th day of March,

2023[.]” (Emphasis added.) Arnold had no need to file Appeal No. 2023-CA-

0382-MR to preserve his appellate rights. We therefore dismiss it as duplicative.1

Having said that, we now proceed to the substance of his remaining

appeal, No. 2023-CA-0298-MR. The sole argument Arnold has raised is an

argument that he now raises for the first time on appeal. Specifically, he never

questioned the constitutionality of KRS 527.040 below; nor did he adhere to KRS

418.075(1), which requires any defendant who wishes to challenge the

constitutionality of a statute to notify the Attorney General of his claim “before

judgment is entered.” Our Supreme Court has admonished appellate advocates

that “strict compliance with the notification provisions of KRS 418.075 is

mandatory[.]” Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky. 2008). The

notification requirement applies even in criminal cases where the Attorney General

represents the Commonwealth, regardless of whether a statute is challenged on its

face or as applied to a specific case. Id. Failure to give notice leaves the

1 In a previously entered order, a motion panel of this Court decided not to dismiss Appeal No. 2023-CA-0382-MR as duplicative. That order was subject to revision by this merits panel. See Knott v. Crown Colony Farm, Inc., 865 S.W.2d 326 (Ky. 1993) (noting that a decision made by a Court of Appeals motion panel is not binding on the merits panel).

-3- constitutional challenge unpreserved. Jones v. Commonwealth, 319 S.W.3d 295,

296-97 (Ky. 2010).

Indeed, Arnold acknowledges in his appellate brief that his

constitutional challenge to KRS 527.040 is unpreserved. Nevertheless, Arnold

asks this Court to review his challenge under the auspices of RCr2 10.26, which

provides:

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

(Emphasis added.)

We decline to do so. To be sure, our Supreme Court has on perhaps

one prior occasion utilized RCr 10.26 to review an appellant’s challenge to the

constitutionality of a statute, leveled for the first time on appeal, notwithstanding

the appellant’s failure to comply with the mandatory requirements of KRS

418.075. See Jones, 319 S.W.3d at 297. However, in a far more recent opinion,

the Court reiterated that “[o]ur courts refuse to address arguments that a statute is

unconstitutional unless these notice provisions [of KRS 418.075] are fully

satisfied.” Couch v. Commonwealth, 686 S.W.3d 172, 179 (Ky. 2024) (emphasis

added) (citing Benet, 253 S.W.3d at 532). And, in keeping with that rule, the

2 Kentucky Rule of Criminal Procedure.

-4- Couch Court “decline[d]” to review an appellant’s challenge to the

constitutionality of two statutes, leveled for the first time on appeal, because the

appellant had failed to comply with the mandatory requirements of KRS 418.075.

Id. at 180. In so doing, the Court explained:

[G]ood reason exists for [KRS 418.075]. Kentucky does not have a unified prosecutorial system, and although there is a relationship between the Attorney General and local prosecuting officials, Commonwealth’s Attorneys do not answer to the Attorney General. See generally KRS 15.220 and 15.725. The Attorney General, who is elected statewide by the Commonwealth’s voters and not just by local citizens, “is in a unique position to defend the constitutionality of an act of the General Assembly. The Attorney General must be given this opportunity at the trial level because a declaration regarding the constitutionality of a statute affects all the citizens of the Commonwealth[.]” Benet, 253 S.W.3d at 532 n.13; see Brashars v. Commonwealth, 25 S.W.3d 58, 65-66 (Ky. 2000) (rejecting argument that notice to the Attorney General regarding constitutionality of a statute was not required because the Commonwealth was already a party to the criminal action); Jacobs v. Commonwealth, 947 S.W.2d 416, 419 (Ky. App. 1997) (stating “[w]e recognize that in criminal cases such as this the Commonwealth is represented at the trial level by local prosecuting officials. . . . For that reason, we conclude that the notice requirements of [KRS 418.075] must be met in criminal, as well as civil, actions[ ]”).

Id. at *5.

As emphasized, RCr 10.26 provides that a court of review “may”

consider certain errors “even though insufficiently raised or preserved for

review[.]” But, to the extent Arnold’s constitutional challenge may be reviewed

-5- under the purview of that rule, our Supreme Court’s reasoning in Couch counsels

against doing so. Accordingly, we decline Arnold’s invitation to do so here.

Considering the foregoing, we AFFIRM with respect to Appeal No.

2023-CA-0298-MR. We DISMISS with respect to Appeal No. 2023-CA-0382-

MR.

ALL CONCUR.

ENTERED: _May 10, 2024_____

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Robert C. Yang Russell Coleman Frankfort, Kentucky Attorney General of Kentucky

Matthew F. Kuhn Solicitor General

Sarah N. Christensen Assistant Solicitor General Frankfort, Kentucky

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