JOHNNIE WIDNER APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

JOHNNIE WIDNER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–001144–MR

Decided: January 13, 2012

BEFORE:  CAPERTON, MOORE, AND STUMBO, JUDGES. BRIEFS FOR APPELLANT:  Johnnie Widner, Pro Se St. Mary, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

The Appellant, Johnnie Widner, was convicted of escape in the second degree and persistent felony offender in the second degree in 2008, for which he was sentenced to ten years of imprisonment.   Widner appeals the May 11, 2010, order of the Letcher Circuit Court denying his motion for relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42.   Having reviewed the record, the arguments of the parties, and the applicable law, we affirm.

On November 15, 2004, Widner entered guilty pleas in three misdemeanor cases involving cold checks.   Those three cases involved nine counts of theft by deception under $300.   Widner pled guilty to all counts in exchange for twelve months in jail.   Simultaneously, Widner had an active misdemeanor case involving one count of theft by deception under $300.   On May 6, 2005, Widner, who was still incarcerated, appeared in court and was given an order to return to court on May 31, 2005.   He did so and, at that time, was ordered to appear for trial on August 1, 2005.

Shortly thereafter, on July 19, 2005, an agreed order of furlough was signed by the district court judge, the county attorney, and by the directing attorney for the public defender's office,Double releasing Widner at 9:00 a.m. and requiring him to return by 4:00 p.m. on the same day.   This order was apparently issued in order for Widner's wife to transport him to a social security hearing.   The order stated that if Widner did not return by 4:00 p.m. on July 19, he would be charged with escape.   Widner failed to return and a warrant was issued for his arrest.   That warrant was executed upon Widner and he was arrested on April 12, 2006.

Don McCall, the jailer for Letcher County, was the deputy jailer at the time of the events in question.   McCall stated that Widner was committed to jail on November 12, 2004.   McCall testified that when Widner came to the jail, his personal property was collected and he was issued jail property in return.   McCall stated that neither of two forms documenting that process shows that Widner's personal property was returned nor that Widner had returned the jail property.   Concerning the furlough order of July 19, 2005, McCall stated that the jail records indicate that Widner was released at 10:10 a.m. on that date to Verla Widner by the former jailer, Gary Cornett,Double to be transported to the Hazard Social Security Office.   McCall testified that the records indicate that Widner did not return to the jail on July 19, 2005, and was not reprocessed into the jail system until April 13, 2006.

Kenny Raleigh, who was a Letcher County Deputy Sherriff at the time in question, testified that he attempted to locate Widner on five or six occasions, and that he had advised Widner's family that he was searching for Widner.   Subsequently, Officer Raleigh arrested Widner on April 12, 2006, when he was located in a trailer behind a family member's residence.

Widner himself testified, stating that on the day he was released, he was given a bag of medicine by the jailer, told “there's the door,” and left.   Widner denies being advised that he had to return.   However, on cross-examination, Widner stated that he knew about his August 1, 2005, trial date and had not forgotten about it.   Instead, Widner stated that he knew if he showed up for trial on that date, then he would be taken into custody and jailed.

As noted, Widner was indicted for escape in the second degree and persistent felony offender in the first degree on August 31, 2006. Double Widner immediately requested, and was later granted, the right to act as co-counsel in his case, at which time he began filing numerous pro se motions.   Through the course of the proceedings, Widner was represented by three different attorneys:  Hon. Peyton Reynolds,Double Hon. Barbara Carnes;  Double and Hon. James Wren.Double

On March 13, 2008, Widner was convicted of escape in the second degree and persistent felony offender in the second degree, and was sentenced to ten years of imprisonment.   Thereafter, on July 10, 2009, this Court affirmed Widner's conviction.   Widner also filed a motion for modification of his sentence.   The Commonwealth responded, and Widner replied several times.   On May 7, 2010, the trial court denied Widner's motion for modification of sentence.   Widner then filed a pro se RCr 11.42 motion on October 2, 2009, with an accompanying memorandum.   The Commonwealth filed a response and Widner filed a pro se motion to supplement his RCr 11.42 motion, to which the Commonwealth responded.   On May 11, 2010, the trial court overruled Widner's RCr 11.42 motion.   In overruling Widner's RCr 11.42 motion, the court stated that the motion was not verified and that, “These requirements are jurisdictional, and defendant's failure to comply with the rule deprives the Court of authority to enter an order granting the movant any relief.”   This appeal followed.

On appeal, Widner makes a number of arguments which center upon the merits of his RCr 11.42 claim, including allegations that counsel failed to stop the Commonwealth's attorney from “intimidating the defense witness,” for failing to fully cross-examine the Commonwealth's key witnesses, for failing to ask for a mistrial after Widner requested him to, and for failing to call “requested witnesses” to support Widner's defense. Double He thus argues that the court erred in denying his RCr 11.42 motion without granting an evidentiary hearing.

In response, the Commonwealth argues that Widner's RCr 11.42 motion and his attempted supplementation thereof were not properly verified by Widner, as required by RCr 11.42(2).   The Commonwealth notes that the RCr 11.42 motion filed on October 2, 2009, contained no allegations of error but was verified, while the memorandum in support of the motion contained the allegations of error but was not verified.   The Commonwealth also notes that the pro se motion to supplement the RCr 11.42 motion, filed by Widner on February 19, 2010, was not verified and contained no facts or allegations, and that the supplemental argument was not properly verified.   Thus, it argues that the court was correct in denying Widner's motion. Double

In reviewing the arguments of the parties, we note that RCr 11.42(2) specifically states that the motion must be signed and verified by the movant.   As stated by our Supreme Court in Stanford v. Commonwealth, 854 S.W.2d 742, 748 (Ky.1993):

The requirement of verification means more than just a signature by the movant before a notary public.   The requirement for the statement of ‘facts on which the movant relies' means more than a shotgun allegation of complaints․  Such allegations should not be made, except in good faith.   They should be based upon facts which are stated.   Without a minimum of factual basis, contained in the verified RCr 11.42 motion, the motion should be summarily overruled.

Moreover, RCr 11.42(2) clearly states that, “Failure to comply with this section shall warrant a summary dismissal of the motion.”   As held by our Supreme Court in Cleaver v. Commonwealth, 569 S.W.2d 166, 169 (Ky.1978):

[An RCr 11.42 motion] must be in writing, verified by the movant, and state specifically the grounds of challenge and the facts in support thereof․  It is jurisdictional that the terms and provisions of RCr 11.42 must be complied with, even though a substantial, and not an absolute, compliance is adequate.  [ Double ] Therefore, even had RCr 11.42 been an appropriate remedy in this instance, in the absence of an appropriate motion as required by RCr 11.42, the Johnson Circuit Court would not have had the authority to enter an order granting the appellant any relief.

Cleaver at 169.   As Widner failed to properly verify his motion and supplemental motions in this instance, we believe summary dismissal was appropriate.

Wherefore, for the foregoing reasons, we hereby affirm the May 11, 2010, order of the Letcher Circuit Court, denying Widner's RCr 11.42 motion, the Honorable Samuel T. Wright III, presiding.

moore, judge concurs.

stumbo, judge, dissents and files separate opinion.

STUMBO, JUDGE, DISSENTING:  I respectfully dissent.   While the memorandum in support of the original motion for relief was not verified by way of notarized signature, the motion was.   Appellant specifically referred to the memorandum in the motion saying, “In support of this motion, the MOVANT has attached his Memorandum of Law.” Conversely, the memorandum in support of the supplementary motion was verified with his notarized signature, while the motion was not.   Given that we are to give pro se litigants leeway in the formalities of procedure and that we have consistently been directed by the Supreme Court to apply a standard of substantial technical compliance in pleadings, I believe the majority and the trial court erred in rejecting the pleadings on that ground.   I would hold that the trial court erred in refusing to address the issues raised in the pleadings.

CAPERTON, JUDGE: