ELBERT PHILLIP LONG APPELLANT v. KENTUCKY DEPARTMENT OF CORRECTIONS ANNA VALENTINE WARDEN KENTUCKY STATE REFORMATORY COOKIE CREWS COMMISSIONER KENTUCKY DEPARTMENT OF CORRECTIONS DAVID GREEN WARDEN EASTERN KENTUCKY CORRECTIONAL COMPLEX AND KENTUCKY ATTORNEY GENERAL APPELLEES (2026)

Elbert Phillip Long (“Long”), an inmate proceeding pro se, filed a petition for declaration of rights in the Franklin Circuit Court challenging his transfer to another prison and other claims. The Franklin Circuit Court dismissed the petition. Long filed two separate appeals of the trial court's order, and the Court of Appeals dismissed both as untimely. This Court granted discretionary review. Based on our review, we affirm.

BACKGROUND

On September 4, 2022, Long filed a petition for a declaration of rights challenging his transfer from the Kentucky State Reformatory to the Eastern Kentucky Correctional Complex.¹ Long also alleged several incidents of robbery, theft, and gang activity during his time at the Eastern Kentucky Correctional Complex.

On May 16, 2023, the trial court dismissed Long's petition. On June 26, 2023, instead of filing a notice of appeal, Long filed a petition for writ of mandamus in the Court of Appeals. Long asked the Court of Appeals to order discovery in the trial court proceeding, but the court denied the petition as moot.

On October 18, 2023, Long tendered a notice of appeal in 2023-CA-1273, which was filed on October 27, 2023. On November 13, 2023, the Court of Appeals entered an order directing Long to show cause why his appeal should not be dismissed for failure to file a timely notice of appeal. Long responded that he did not receive service of the order and was unaware of it until he received the Court of Appeals’ order dismissing his petition for writ of mandamus against Judge Wingate on October 12, 2023.

Also on November 13, 2023, Long moved for a belated appeal by filing a separate appeal, 2023-CA-1310. He asked the Court of Appeals to grant him a belated appeal because he was unaware of the trial court's order until October 11, 2023.

On January 23, 2024, the Court of Appeals entered separate orders disposing of Long's appeals. In 2023-CA-1273, the court dismissed Long's appeal because his failure to receive notice did not relieve him of the timely notice requirement in RAP ² 3(C), dismissal was required under RAP 2(A)(3). In 2023-CA-1273, the court denied Long's motion for a belated appeal based on its assertion that no legal authority permitted a belated appeal from a final judgment in a civil action.

Long moved for consolidated discretionary review, which this Court granted.

ANALYSIS

On appeal, Long argues that because he did not receive notice of the trial court's order in time to file a timely notice of appeal, the Court of Appeals should have accepted it under the prison mailbox rule or granted his motion for a belated appeal. “Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo.” Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010).

Our Rules of Appellate Procedure dictate the requirements for filing a notice of appeal. RAP 3(A)(1) provides that “the notice of appeal required by RAP 2 shall be filed with the clerk of the court from which the appeal is taken no later than 30 days from the date of notation of service of the judgment or order appealed from.” A party is not relieved from this requirement even if the trial court fails “to require service of notice of entry of any judgment or order under this rule,” the clerk fails “to serve such notice” as required by CR ³ 77.04, or the party fails “to receive notice.” RAP 3(C). The order is still valid, and the time to appeal is unaffected. Id. When a party fails to file a timely notice of appeal, RAP 2(A)(3) requires dismissal of the appeal. Long's notice of appeal was untimely because he filed it months after his time to appeal expired.

Long argues the Court of Appeals should have accepted his notice of appeal even though it was untimely filed. First, Long argues that the Court of Appeals should have accepted his appeal under the prison mailbox rule. Under the prison mailbox rule in RCr ⁴ 12.04(5), an inmate's notice of appeal in a criminal case is considered timely “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.” (emphasis added). “Despite the recognition of the challenges faced by an inmate filing an appeal, RCr 12.04(5) is limited to criminal appeals.” Gray v. Dep't of Corr., 606 S.W.3d 645, 648 (Ky. App. 2020). It does not extend to appeals from a civil petition for declaration of rights. Id. This Court “could have extended the prison mailbox rule to all documents filed by prison inmates based on the underlying rationale for the rule, but it chose not to do so.” Willis v. Willis, 361 S.W.3d 341, 344 (Ky. App. 2012).

Furthermore, even if the mailbox rule applied to civil appeals, RAP 3(C) would prohibit its inverse application. RCr 12.04(5) applies only to notices of appeal filed by criminal defendants. This Court could have extended the prison mailbox rule to documents received by prison inmates, but instead adopted RAP 3(C). Thus, the mailbox rule provides no relief.

Second, Long argues the Court of Appeals should have granted his motion for a belated appeal. Under RAP 3(D), if a party makes “a showing of excusable neglect based on a failure ․ to learn of the entry of the judgment or an order which affects the running of the time for taking an appeal, the trial court may extend the time for appeal, not exceeding 10 days from the expiration of the original time.”⁵ Long improperly filed his motion for a belated appeal in the Court of Appeals rather than the trial court, and he filed it more than 10 days after the original time limit expired. The Court of Appeals lacked the authority to grant a belated appeal. Thus, there is no applicable exception to relieve Long of his failure to timely file his notice of appeal.

CONCLUSION

For the foregoing reasons, we affirm the Court of Appeal's orders dismissing the notice of appeal in 2023-CA-1273 and denying the motion for belated appeal in 2023-CA-1310.

FOOTNOTES

1.   Long was later transferred to Southeast State Correctional Complex, where he is currently housed.

2.   Kentucky Rules of Appellate Procedure.

3.   Kentucky Rules of Civil Procedure.

4.   Kentucky Rules of Criminal Procedure.

5.   The Court of Appeals incorrectly relied on T.S. v. Commonwealth, 602 S.W.3d 795, 797 (Ky. App. 2020), for the proposition that no legal authority supports granting a belated appeal from a judgment in a civil action. RAP (3)(D) superseded T.S. and was in effect when Long filed his notice of appeal.

OPINION OF THE COURT BY JUSTICE GOODWINE AFFIRMING

All sitting. All concur.