Opinion
NO. 2016-CA-001093-MR
06-16-2017
CHARLES V. THOMAS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Steven J. Megerle Covington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HON. JAMES R. SCHRAND II, JUDGE
INDICTMENT NO. 16-CR-00026 OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND D. LAMBERT, JUDGES. COMBS, JUDGE: Charles V. Thomas appeals from the Boone Circuit Court's amended final judgment and sentence of imprisonment following the court's denial of his oral motion to dismiss and written motion to suppress. After our review, we affirm the circuit court.
The facts of this case are largely undisputed. On December 10, 2015, police in Boone County executed a search warrant at Thomas's residence and discovered a collection of items routinely used to manufacture methamphetamine: Coleman fuel, liquid fire, lithium batteries, and empty cold pack boxes. Upon his arrest, Thomas admitted to police that he manufactured methamphetamine, and he also admitted doing so in the same home where he resided with his twelve-year-old son. Thomas was indicted on charges of first-offense manufacturing methamphetamine and fourth-degree controlled substance endangerment of a child.
Kentucky Revised Statutes (KRS) 218A.1432. First-offense manufacture of methamphetamine is a Class B felony.
KRS 218A.1444, a Class D felony.
Thomas subsequently orally moved to dismiss the charges and followed that oral motion with a written motion to suppress evidence. Both motions were based upon the same core allegations of a defective search warrant. The circuit court denied Thomas's motion in a written order, entered May 2, 2016, after which Thomas negotiated a conditional guilty plea with the Commonwealth. In exchange for his guilty plea, the Commonwealth agreed to amend the manufacturing methamphetamine charge to criminal attempt to manufacture methamphetamine; it also agreed to recommend a concurrent sentence of five years on each charge and a fine of one thousand dollars. Thomas entered his conditional guilty plea, reserving his right to appeal his suppression issue, and the circuit court sentenced him in accord with the Commonwealth's recommendation. The circuit court entered its amended final judgment and sentence of imprisonment on July 22, 2016. This appeal follows.
KRS 506.010, the criminal attempt statute, assigns a lesser degree of culpability for attempts as distinguished from completed offenses. Amending the manufacturing methamphetamine charge to criminal attempt has the effect of reducing the offense to a Class C felony under KRS 506.010(4)(c). --------
On appeal, Thomas contends that the circuit court erred by denying his motion to suppress.
In reviewing a trial court's ruling on a suppression motion, an appellate court must first determine if the trial court's factual findings are not clearly erroneous and are supported by substantial evidence . . . . A de novo review of the trial court's application of the law to the facts completes the analysis.Nunn v. Commonwealth, 461 S.W.3d 741, 745 (Ky. 2015) (quoting Frazier v. Commonwealth, 406 S.W.3d 448, 452-53 (Ky. 2013)). The facts of this case are not contested, and Thomas's arguments rely entirely on a determination of the legal issues. Thus, our review is de novo.
The crux of Thomas's appeal is that he believes the search warrant in his case was signed by an individual who was not authorized to act as an "active, detached magistrate." On October 22, 2015, the Chief Justice of the Kentucky Supreme Court assigned Senior Judge Janice R. Martin as a temporary special judge of the 54th Judicial District, consisting of Boone and Gallatin Counties. This initial assignment was to run from November 1 through November 30, 2015. On December 11, 2015, the Chief Justice issued another order, designated nunc pro tunc, assigning Judge Martin to the same district from December 1, 2015, through December 31, 2015. Judge Martin signed the search warrant for Thomas's residence on December 10, 2015, and her reassignment by the Chief Justice took place on December 11, 2015. Thus, Thomas contends that she was without judicial authority to sign the search warrant. He further contends that the search conducted pursuant to the warrant was thereby invalid, and, therefore, that the evidence discovered pursuant to the warrant must be suppressed. In support of this argument, Thomas also argues the Chief Justice improperly characterized his December 11, 2015 order as nunc pro tunc and Judge Martin was not correctly assigned pursuant to KRS 26A.020. We consider each of these arguments below.
Thomas vigorously asserts the Chief Justice did not have the authority to term the December 11, 2015 order as "nunc pro tunc." The Kentucky Supreme Court has recently referred to this term and the legal consequences of such a designation:
"Nunc pro tunc" is defined in Black's Law Dictionary as follows: "Having retroactive legal effect through a court's inherent power . . . . 'When an order is signed 'nunc pro tunc' as of a specified date, it means that a thing is now done which should have been done on the specified date.'" Black's Law Dictionary (9th ed. 2009) (citations omitted).Wright v. Ecolab, Inc., 461 S.W.3d 753, 754 n.1 (Ky. 2015).
Thomas relies heavily on Helton v. Commonwealth, 256 S.W.2d 14 (Ky. 1953), which he contends stands for the proposition that a special judge's actions taken after the expiration of his assignment were void. Id. at 16. However, Thomas ignores an important consideration in Helton: that the actions were a nullity "in the absence of [the special judge's] redesignation by the Chief Justice." Id. However, in the case before us, the Chief Justice did issue an order nunc pro tunc in which he gave Judge Martin authority.
Thomas attacks the validity of this order, arguing the Chief Justice exceeded the bounds of what may be considered nunc pro tunc. We do not agree. Thomas misperceives the nature of the nunc pro tunc order. "Under Kentucky law, the power to act nunc pro tunc is inherent in the courts." Webster County Bd. of Educ. v. Franklin, 392 S.W.3d 431, 437 (Ky. App. 2013) (citing Munsey v. Munsey, 303 S.W.2d 257, 259 (Ky. 1957)). "The rationale of nunc pro tunc orders is 'to record some act of the court done at a former time which was not carried into the record[.]'" Id. (quoting Benton v. King, 199 Ky. 307, 250 S.W. 1002, 1003 (1923)).
The Chief Justice of the Kentucky Supreme Court is the "executive head of the Court of Justice." Kentucky Constitution 110(5)(b); KRS 27A.010. He has constitutional authority to "assign temporarily any justice or judge of the Commonwealth, active or retired, to sit in any court other than the Supreme Court when he deems such assignment necessary for the prompt disposition of causes." Kentucky Constitution 110(5)(b). We find no authority supporting the proposition that the Chief Justice exceeded his broad constitutional powers when he gave effect to a special judge's second month of assignment in a nunc pro tunc order.
Thomas also contends that Judge Martin's assignment as special judge was procedurally invalid. KRS 26A.020(1) provides, in relevant part, as follows:
When, from any cause, a judge of any Circuit or District Court fails to attend, or being in attendance cannot properly preside in an action pending in the court, or if a vacancy occurs or exists in the office of circuit or district judge, the circuit clerk shall at once certify the facts to the Chief Justice who shall immediately designate a regular or retired justice or judge of the Court of Justice as special judge.Thomas argues that there is no evidence in the record to show that the circuit court clerk certified any facts to the Chief Justice. In denying Thomas's motions, the circuit court found this argument unavailing, citing Huntzinger v. McCrae, 818 S.W.2d 613 (Ky. App. 1990), for the proposition that "[a]n appointment to serve as special judge does not in all cases require the Circuit Court Clerk to certify the facts to the Kentucky Supreme Court." However, Thomas argues that Huntzinger is not applicable because it involved an appointment pursuant to the Regional Administration Program Charter. The newest Regional Administration Program Charter gives the power to appoint a special judge to the Chief District Judge -- and not the Chief Justice. Thomas concludes this argument by asserting that Judge Martin lacked valid judicial authority because she was not appointed as a special judge pursuant to a Regional Administrative Program Charter as in Huntzinger, nor was she assigned under the certification procedure outlined in KRS 26A.020(1).
Thomas's arguments fail to address the broad nature of the inherent authority of the office of Chief Justice. Although judicial assignments may ordinarily take place under the procedures provided in KRS 26A.020(1) or in the Regional Administrative Program Charter, these procedures in no way derogate or diminish the Chief Justice's authority to assign judges under Section 110(5)(b) of the Kentucky Constitution. The Regional Administrative Program Charter is an administrative order of the Kentucky Supreme Court signed by the Chief Justice. Yet it also specifically includes the following language:
Any authorization granted herein to make judicial assignments is subject to the supervision and complete control of the Chief Justice and does not constitute any delegation of the authority granted by Section 110(5)(b) of the Kentucky Constitution. (Emphasis added.)
The Kentucky Supreme Court has found KRS 26A.020(1) to be an unconstitutional "encroachment by the legislature on the power of the judiciary to make rules[,]" but it has upheld the statute as a matter of comity. Foster v. Overstreet, 905 S.W.2d 504, 506 (Ky. 1995). The Court also held that it "reserve[d] the right to review in the future this procedure and present refinements or alterations to it." Id. at 507.
The two appointment procedures noted by the appellant are simply alternative ways to facilitate the Chief Justice's constitutional authority. They in no way restrict the direct exercise of that authority. Thus, we find no error in the Chief Justice's manner of appointing Judge Martin as special judge.
Finally, we hold that even if the appointment procedure were somehow improper, there are two separate legal doctrines which would have prevented Thomas from succeeding in his suppression motion. These arguments were not cited by the circuit court in its denial of Thomas's motion. However, the Kentucky Supreme Court has held "that an appellate court may affirm a lower court for any reason supported by the record." McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009) (citation omitted); see also Commonwealth v. Fields, 194 S.W.3d 255, 257 (Ky. 2006) (holding an appellate court may affirm a judgment or decision of a trial court, "even if that court reached the right result for the wrong reason.")
First, the de facto officer doctrine:
confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person's appointment or election to office is deficient . . . . The doctrine has been relied upon by this Court in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceedings leading to their conviction and sentence.Moorman v. Commonwealth, 325 S.W.3d 325, 331 (Ky. 2010) (quoting Ryder v. U.S., 515 U.S. 177, 180-181, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995)). Based on the de facto officer doctrine, a previous panel of this Court found a search warrant valid -- even though it was issued by a trial commissioner whose appointment had expired. Gourley v. Commonwealth, 335 S.W.3d 468, 471 (Ky. App. 2010). Pursuant to Gourley, we find that even if Judge Martin's appointment could have been determined to have been flawed, the warrant would still be valid because it was issued by a de facto officer operating under color of official title.
Second, in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court held that suppression is not appropriate when a mistake in the warrant occurs despite the good faith efforts of law enforcement. "[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates." Leon, 468 U.S. at 916, 104 S.Ct. at 3417. Thomas does not argue the police affidavit to secure the warrant was made in bad faith. "[W]hen it appears that the affidavit was made in good faith but the warrant erroneously issued by virtue of judicial error, neither the Constitution nor sound public policy requires suppression of the evidence." Crayton v. Commonwealth, 846 S.W.2d 684, 688 (Ky. 1992).
We affirm the Boone Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Steven J. Megerle
Covington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky