IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 20, 2025 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0237-MR
HAROLD E. TURNER APPELLANT
ON APPEAL FROM COURT OF APPEALS V. NO. 2023-CA-1366 CARLISLE CIRCUIT COURT NO. 20-CR-00050
HONORABLE TIMOTHY A. APPELLEE LANGFORD, CIRCUIT JUDGE
AND
COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST/ APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Harold E. Turner was charged with several criminal offenses, including
possession of a handgun by a convicted felon and being a first-degree
persistent felony offender. After the Carlisle Circuit Court severed those two
charges from the remaining charges, a jury found Turner guilty of both charges
and the trial court sentenced him to ten years in prison on November 4, 2021.
However, the judgment, which included the two tried charges and the
remaining charges, listed “not guilty” for each of the remaining charges.
Turner ultimately entered a plea agreement for the remaining charges
but before being sentenced, filed a petition for writ of prohibition with the Court of Appeals seeking to prohibit the trial court from sentencing him on the
remaining charges. Turner argued, among other things, that the trial court
lacked jurisdiction and was collaterally estopped from sentencing him because
the November 2021 judgment found him not guilty. The Court of Appeals
denied Turner’s petition. This appeal followed. After careful review, we affirm
the Court of Appeals and conclude that Turner is not entitled to a writ.
FACTS AND PROCEDURAL HISTORY
In 2020, Harold E. Turner was indicted on charges of possession of a
handgun by a convicted felon, first-degree possession of a controlled
substance, possession of drug paraphernalia, tampering with physical
evidence, possession of marijuana, and being a first-degree persistent felony
offender. The possession of a handgun and first-degree persistent felony
offender charges were severed from the other charges and proceeded to trial.
Turner was convicted by a jury and sentenced to ten years in prison on
November 4, 2021. Turner appealed and his conviction was affirmed by the
Court of Appeals. Turner v. Commonwealth, 2022-CA-0087-MR, 2023 WL
128719, at *1 (Ky. App. Jan. 6, 2023).
While his appeal was pending, on February 11, 2022 Turner entered a
plea agreement with the Commonwealth on the remaining charges. Because
his appeal was pending, the parties waited to sentence Turner on the
remaining charges until the appeal was final. Although the Court of Appeals
rendered its decision in January 2023, according to the Commonwealth the
2 remaining charges “fell through the cracks” and Turner was never formally
sentenced on those charges.
Before Turner was sentenced on the remaining charges, he filed a pro se
petition for writ of prohibition to the Court of Appeals arguing, in part, that
because the November 4, 2021 judgment erroneously noted that he was “not
guilty” on the untried charges, jeopardy had attached and the circuit court
could not sentence him on the plea agreement. The Court of Appeals denied
the petition, determining that the trial court had jurisdiction and was not
acting erroneously. This appeal followed.
ANALYSIS
As often noted, “courts of this Commonwealth are―and should be―loath
to grant the extraordinary writs unless absolutely necessary.” Cox v. Braden,
266 S.W.3d 792, 795 (Ky. 2008). This Court has held that:
A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.
Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). Turner argues both that the
trial court lacks jurisdiction to sentence him and alternatively that the trial
court has jurisdiction but is acting erroneously. We address each argument in
turn.
3 I. Turner is not entitled to a first-class writ because the trial court has jurisdiction to sentence as to all charges.
“The first class of writs refers to subject-matter jurisdiction; that is, the
lower court's core authority to hear the case at all.” Appalachian Racing, LLC
v. Commonwealth, 504 S.W.3d 1, 4 (Ky. 2016). Turner argues that the trial
court lost jurisdiction over the matter ten days after the November 4, 2021
judgment was entered. While the November 4 judgment erroneously stated
Turner was “not guilty” of the remaining charges, there is no dispute that those
charges were not presented to the jury prior to the entry of the November 4
judgment. This is evidenced by the order severing the charges and by Turner’s
subsequent guilty plea on the remaining charges three months later. There
would have been no need for a guilty plea had Turner been acquitted of the
remaining charges. At the time the trial court entered the November 4
judgment, the remaining charges were still pending pursuant to the severance
order. The clerical error on the judgment occurred but Turner was
nevertheless sentenced to ten years in prison. Three months later Turner
entered a guilty plea to the remaining charges. While there is an unexplained
delay in sentencing Turner pursuant to the plea agreement, there is no
prejudice because Turner was already sentenced to ten years in prison.
Further, his appeal from his ten-year sentence is what initially led the parties
to suspend sentencing on the remaining charges.
Additionally, the circuit court entered a subsequent order on February
29, 2024 explaining the error in the November 4, 2021 judgment, indicating
that the remaining charges were not submitted to the jury at the jury trial 4 conducted in October 2021, and amending the November 4 judgment to correct
the error. Turner cites Kentucky Civil Rule (CR) 59.05, which requires a
motion to vacate, alter or amend a judgment to be served within ten days of
judgment. But the criminal rules apply here. “Clerical mistakes in judgments,
orders or other parts of the record and errors therein arising from oversight or
omission may be corrected by the court at any time on its own initiative or on
the motion of any party and after such notice, if any, as the court orders.”
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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 20, 2025 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0237-MR
HAROLD E. TURNER APPELLANT
ON APPEAL FROM COURT OF APPEALS V. NO. 2023-CA-1366 CARLISLE CIRCUIT COURT NO. 20-CR-00050
HONORABLE TIMOTHY A. APPELLEE LANGFORD, CIRCUIT JUDGE
AND
COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST/ APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Harold E. Turner was charged with several criminal offenses, including
possession of a handgun by a convicted felon and being a first-degree
persistent felony offender. After the Carlisle Circuit Court severed those two
charges from the remaining charges, a jury found Turner guilty of both charges
and the trial court sentenced him to ten years in prison on November 4, 2021.
However, the judgment, which included the two tried charges and the
remaining charges, listed “not guilty” for each of the remaining charges.
Turner ultimately entered a plea agreement for the remaining charges
but before being sentenced, filed a petition for writ of prohibition with the Court of Appeals seeking to prohibit the trial court from sentencing him on the
remaining charges. Turner argued, among other things, that the trial court
lacked jurisdiction and was collaterally estopped from sentencing him because
the November 2021 judgment found him not guilty. The Court of Appeals
denied Turner’s petition. This appeal followed. After careful review, we affirm
the Court of Appeals and conclude that Turner is not entitled to a writ.
FACTS AND PROCEDURAL HISTORY
In 2020, Harold E. Turner was indicted on charges of possession of a
handgun by a convicted felon, first-degree possession of a controlled
substance, possession of drug paraphernalia, tampering with physical
evidence, possession of marijuana, and being a first-degree persistent felony
offender. The possession of a handgun and first-degree persistent felony
offender charges were severed from the other charges and proceeded to trial.
Turner was convicted by a jury and sentenced to ten years in prison on
November 4, 2021. Turner appealed and his conviction was affirmed by the
Court of Appeals. Turner v. Commonwealth, 2022-CA-0087-MR, 2023 WL
128719, at *1 (Ky. App. Jan. 6, 2023).
While his appeal was pending, on February 11, 2022 Turner entered a
plea agreement with the Commonwealth on the remaining charges. Because
his appeal was pending, the parties waited to sentence Turner on the
remaining charges until the appeal was final. Although the Court of Appeals
rendered its decision in January 2023, according to the Commonwealth the
2 remaining charges “fell through the cracks” and Turner was never formally
sentenced on those charges.
Before Turner was sentenced on the remaining charges, he filed a pro se
petition for writ of prohibition to the Court of Appeals arguing, in part, that
because the November 4, 2021 judgment erroneously noted that he was “not
guilty” on the untried charges, jeopardy had attached and the circuit court
could not sentence him on the plea agreement. The Court of Appeals denied
the petition, determining that the trial court had jurisdiction and was not
acting erroneously. This appeal followed.
ANALYSIS
As often noted, “courts of this Commonwealth are―and should be―loath
to grant the extraordinary writs unless absolutely necessary.” Cox v. Braden,
266 S.W.3d 792, 795 (Ky. 2008). This Court has held that:
A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.
Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). Turner argues both that the
trial court lacks jurisdiction to sentence him and alternatively that the trial
court has jurisdiction but is acting erroneously. We address each argument in
turn.
3 I. Turner is not entitled to a first-class writ because the trial court has jurisdiction to sentence as to all charges.
“The first class of writs refers to subject-matter jurisdiction; that is, the
lower court's core authority to hear the case at all.” Appalachian Racing, LLC
v. Commonwealth, 504 S.W.3d 1, 4 (Ky. 2016). Turner argues that the trial
court lost jurisdiction over the matter ten days after the November 4, 2021
judgment was entered. While the November 4 judgment erroneously stated
Turner was “not guilty” of the remaining charges, there is no dispute that those
charges were not presented to the jury prior to the entry of the November 4
judgment. This is evidenced by the order severing the charges and by Turner’s
subsequent guilty plea on the remaining charges three months later. There
would have been no need for a guilty plea had Turner been acquitted of the
remaining charges. At the time the trial court entered the November 4
judgment, the remaining charges were still pending pursuant to the severance
order. The clerical error on the judgment occurred but Turner was
nevertheless sentenced to ten years in prison. Three months later Turner
entered a guilty plea to the remaining charges. While there is an unexplained
delay in sentencing Turner pursuant to the plea agreement, there is no
prejudice because Turner was already sentenced to ten years in prison.
Further, his appeal from his ten-year sentence is what initially led the parties
to suspend sentencing on the remaining charges.
Additionally, the circuit court entered a subsequent order on February
29, 2024 explaining the error in the November 4, 2021 judgment, indicating
that the remaining charges were not submitted to the jury at the jury trial 4 conducted in October 2021, and amending the November 4 judgment to correct
the error. Turner cites Kentucky Civil Rule (CR) 59.05, which requires a
motion to vacate, alter or amend a judgment to be served within ten days of
judgment. But the criminal rules apply here. “Clerical mistakes in judgments,
orders or other parts of the record and errors therein arising from oversight or
omission may be corrected by the court at any time on its own initiative or on
the motion of any party and after such notice, if any, as the court orders.”
Kentucky Rule of Criminal Procedure (RCr) 10.10.
Turner argues that because the Court of Appeals affirmed the judgment
in his direct appeal, it becomes law of the case and cannot be subsequently
amended by the trial court. Pursuant to the law of the case doctrine, “an
appellate court, on a subsequent appeal, is bound by a prior decision on a
former appeal in the same court.” St. Clair v. Commonwealth, 451 S.W.3d 597,
612 (Ky. 2014) (quoting Inman v. Inman, 648 S.W.2d 847, 849 (Ky. 1982). The
law of the case doctrine is simply inapplicable here. Again, RCr 10.10 allows
for mistakes in judgments to be corrected at any time, and the trial court
maintained jurisdiction over the remaining charges because they were properly
severed. Therefore, Turner is not entitled to a first class writ.
II. Turner is not entitled to a second-class writ.
Turner also asserts he is entitled to a second-class writ because the trial
court acted erroneously. To be entitled to this class of writ, Turner must also
show that “there exists no adequate remedy by appeal or otherwise and great
injustice and irreparable injury will result if the petition is not granted.”
5 Hoskins, 150 S.W.3d at 10. Turner has not been sentenced pursuant to his
plea agreement on the remaining charges because he filed a writ petition.
Turner has not shown that he has no adequate remedy by appeal. A writ may
not be issued as a substitute for appeal or to circumvent normal appellate
procedure. Nat'l Gypsum Co. v. Corns, 736 S.W.2d 325 (Ky. 1987); Merrick v.
Smith, 347 S.W.2d 537 (Ky. 1961). The extraordinary remedy of a writ is not
available when a trial court's alleged error in the exercise of its jurisdiction can
be addressed in the normal appellate process, which is exactly the scenario
here.
Additionally, Turner argues the trial court should be collaterally estopped
from sentencing him in accordance with the plea agreement, citing Kentucky
Revised Statute (KRS) 505.040(2). That statute prevents a subsequent
prosecution when “[t]he former prosecution was terminated by a final order or
judgment which has not subsequently been set aside and which required a
determination inconsistent with any fact necessary to a conviction in the
subsequent prosecution.” In order for collateral estoppel and KRS 505.040(2)
to apply, “an issue must have been ‘actually and necessarily determined’ in
prior litigation.” Ignatow v. Ryan, 40 S.W.3d 861, 864 (Ky. 2001) (quoting
Benton v. Crittenden, 14 S.W.3d 1, 5-6 (Ky. 1999)). This provision is
inapplicable because the remaining charges were never presented in the 2021
trial. The only charges that were presented were possession of a handgun by a
convicted felon and first-degree persistent felony offender, and the clerical error
6 of listing the untried charges with a disposition of not guilty does not change
that fact.
Further, any double jeopardy argument is likewise unconvincing.
Jeopardy attaches when the jury is sworn. Cardine v. Commonwealth, 283
S.W.3d 641, 646 (Ky. 2009). Because the charges were severed and the
remaining charges were never presented to a jury, jeopardy had not attached to
those charges. As such, the trial court would not be acting erroneously by
proceeding with sentencing Turner on the remaining charges pursuant to the
plea agreement.
CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals’ denial of
Turner’s petition for a writ of prohibition.
All sitting. All concur.
7 COUNSEL FOR APPELLANT:
Harold E. Turner Pro se
COUNSEL FOR APPELLEE:
Hon. Timothy A. Langford
COUNSEL FOR APPELLEE/ REAL PARTY IN INTEREST, COMMONWEALTH OF KENTUCKY:
Russell M. Coleman Attorney General of Kentucky
Stephanie L. McKeehan Assistant Attorney General