CAWL v. COMMONWEALTH

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Court of Appeals of Kentucky.

Kyrus Lee CAWL, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2010–CA–000358–MR.

-- April 06, 2012

Before KELLER, STUMBO, and VANMETER, Judges. David H. Harshaw III, LaGrange, KY, for appellant. Jack Conway, Attorney General of Kentucky, Bryan D. Morrow, Assistant Attorney General, Frankfort, KY, for appellee.

OPINION

Kyrus Lee Cawl (Cawl) appeals from the April 15, 2009, order of the Jefferson Circuit Court. That order denied Cawl post-conviction relief pursuant to his Kentucky Rules of Criminal Procedure (RCr) 11 .42 motion. Because we hold that Cawl failed to properly preserve the issue which serves as the basis for this appeal, we affirm.

On February 24, 2005, Cawl was indicted for ten counts of Robbery I. On March 14, 2005, Cawl was indicted for an eleventh count of Robbery I. Following a competency hearing, Cawl entered a guilty plea on all eleven counts on November 21, 2005, and was sentenced to a total of twenty years.

On July 21, 2008, Cawl, proceeding pro se, filed a motion to vacate his sentence pursuant to RCr 11.42. In his motion, Cawl asserted that he had been told by his trial attorney that, in exchange for his guilty plea, he would only be required to serve twenty percent of his sentence. Cawl also argued that his trial counsel was ineffective because he had failed to discuss available defenses, investigate, interview witnesses, or introduce evidence which Cawl requested be introduced. On August 5, 2008, the trial court denied Cawl's motion. Counsel was thereafter appointed to Cawl, and on December 19, 2008, his counsel filed a renewed RCr 11.42 motion seeking to have Cawl's sentence vacated or set aside. In that motion, counsel argued that the trial court had erred by failing to hold a competency hearing and that Cawl had been denied effective assistance of counsel when his trial counsel failed to ensure that Cawl was competent and failed to investigate. The motion also argued cumulative error and sought an evidentiary hearing. It did not address Cawl's prior argument relating to parole eligibility.

On April 15, 2009, the trial court denied the RCr 11.42 motion. No additional pleadings were filed in the case until January 4, 2010, when Cawl filed a pro se “motion for consideration and rulings,” wherein he requested that the trial court take his motion to vacate under submission, presumably unaware that the trial court had already done so. The trial court issued an opinion and order, entered on January 14, 2010, in which it denied Cawl's RCr 11.42 motion. This appeal followed. Counsel for Cawl filed a motion for belated appeal of the trial court's January 14, 2010, order, and on June 9, 2011, an order of this Court was entered which granted that motion.

Cawl's solitary argument on appeal is that the trial court erred by failing to grant him an evidentiary hearing on the specific allegation of ineffective assistance of trial counsel pertaining to his parole eligibility. Cawl maintains that he was incorrectly advised that he would only be required to serve twenty percent of his sentence before becoming eligible for parole, whereas he must actually serve eighty-five percent of his sentence before eligibility.

Unfortunately, Cawl's argument is unpreserved for our review. Neither of the trial court's April 15, 2009, or January 14, 2010, orders address Cawl's allegation pertaining to his parole eligibility as represented to him by trial counsel. Although the trial court generally found that an evidentiary hearing was unwarranted, it did not go on to specifically adjudicate the claims regarding trial counsel's alleged misrepresentation of parole eligibility.

A final order shall not be reversed or remanded because of the failure of the court to make a finding of fact on an issue essential to the order unless such failure is brought to the attention of the court by a written request for a finding on that issue or by a motion pursuant to Civil Rule 52.02.

RCr 11.42(6). Kentucky Rules of Civil Procedure (CR) 52.02 provides that a motion for amended or additional findings must be made no later than 10 days after the date of entry of the judgment. After that 10 day period, the trial court's order becomes final and the trial court loses jurisdiction to modify its order. Mullins v.. Hess, 131 S.W.3d 769, 774 (Ky.App.2004). Cawl's failure to bring the deficiency to the attention of the trial court effectively served as a waiver to any subsequent claims that it was not appropriately determined. The issue is simply not preserved for our review. Bratcher v. Commonwealth, 151 S.W.3d 332, 350 (Ky.2004); Sanborn v. Commonwealth, 892 S.W.2d 542, 556 (Ky.1994); and Bell v. Commonwealth, 473 S.W.2d 820, 821 (Ky.1971).

Cawl argues that he is not subject to the requirements of CR 52.02 because he did not receive an evidentiary hearing on his RCr 11.42 motion. In support of his argument, Cawl cites to the language of RCr 11.42(6), which reads in its entirety:

At the conclusion of the hearing or hearings, the court shall make findings determinative of the material issues of fact and enter a final order accordingly. If it appears that the movant is entitled to relief, the court shall vacate the judgment and discharge, resentence, or grant him or her a new trial, or correct the sentence as may be appropriate. A final order shall not be reversed or remanded because of the failure of the court to make a finding of fact on an issue essential to the order unless such failure is brought to the attention of the court by a written request for a finding on that issue or by a motion pursuant to Civil Rule 52.02.

RCr 11.42(6) (emphasis added). Cawl argues that the “hearing” language of RCr 11.42(6) makes the requirement for a written request of findings inapplicable to situations in which no hearing is held. We disagree. If we were to apply this narrow interpretation to the wording of RCr 11.42, then it would also be true that the trial court is only required to make findings and enter a final order when an evidentiary hearing is held. This is simply not the intent of RCr 11.42. The law is clear that an evidentiary hearing on an RCr 11.42 motion is not mandatory. RCr 11.42(5); Brewster v. Commonwealth, 723 S.W.2d 863 (Ky.App.1986). Furthermore, Cawl's argument ignores the reality that this Court cannot review an issue that was never actually addressed by the trial court. To do so would require us to fabricate the trial court's ruling, an act which is clearly outside our jurisdictional capabilities. Accordingly, Cawl's argument is without merit.

For the foregoing reasons, the January 14, 2010, order of the Jefferson Circuit Court is affirmed.

KELLER, Judge.

ALL CONCUR.

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