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Commonwealth v. Grise

Supreme Court of Kentucky

November 1, 2018

COMMONWEALTH OF KENTUCKY PETITIONER
v.
HONORABLE JOHN R. GRISE, CHIEF CIRCUIT JUDGE, WARREN CIRCUIT COURT RESPONDENT AND WILLIAM H. MEECE REAL PARTY IN INTEREST

          OPINION AND ORDER

          MINTON, CHIEF JUSTICE.

         DENYING PETITION FOR WRIT OF PROHIBITION

         The Commonwealth petitions this Court for a writ to prohibit enforcement of the trial court's order authorizing the use of public funds for the procurement of private-expert assistance in William Harry Meece's postconviction proceedings under Kentucky Rule of Criminal Procedure (RCr) 11.42. We find that the trial court did not abuse its discretion in ordering the use of public funds and deny the Commonwealth's petition.

         I. BACKGROUND.

         A circuit court jury found Meece guilty of three counts of murder, three counts of complicity to murder, first-degree burglary, and two counts of first-degree robbery and imposed the death penalty. This Court affirmed the resulting judgment.[1] Meece later moved to vacate the judgment under RCr 11.42.[2] The trial court judge, Judge John R. Grise, held a status conference, at which both parties appeared, to determine a briefing schedule and schedule an evidentiary hearing on Meece's motion. Following the status conference, the trial court scheduled an evidentiary hearing for February of the following year.

         Meece later requested the use of private experts in proving his RCr 11.42 motion and requested that the proceedings to determine funding for those experts be conducted ex parte under Kentucky Revised Statute (KRS) 31.185. After receiving a copy of the trial court's order scheduling the ex parte hearing, the Commonwealth objected to the expert-witness request hearing being held without its participation and moved to vacate the order setting the ex parte hearing.

         The trial court then conducted a hearing in which both parties participated to determine whether Meece's public-funds request should be heard ex parte. The trial court ultimately concluded that KRS 31.185 required the entire hearing concerning Meece's public-funds request to be heard ex parte and denied the Commonwealth's motion to vacate its earlier order. Two days later, the trial court heard ex parte Meece's public-funds request and issued an order granting in part and denying in part Meece's public-funding request.

         Six days later, the Commonwealth filed the petition for a writ of prohibition that is the subject of this case, arguing that the trial court was acting erroneously in authorizing the use of public funds. Specifically, the Commonwealth argues that Judge Grise abused his discretion in holding the entire public-funds request hearing ex parte and that he instead should have allowed the Commonwealth to appear at the hearing and contest whether the private experts are "reasonably necessary" for a full presentation of Meece's RCr 11.42 claims. In addition, the Commonwealth contends that the public-funds request hearing was held prematurely because Judge Grise failed first to determine that the specific RCr 11.42 claims for which Meece requested the assistance of experts were sufficient to necessitate an evidentiary hearing.

         II. ANALYSIS.

         First, we must determine whether the Commonwealth has met the minimum threshold showing of harm and lack of redressability on appeal to warrant writ relief. Because we find that the Commonwealth has met this requirement, we must then determine whether the trial court abused its discretion in conducting the entirety of the private-expert request hearing ex parte. We find no error and accordingly deny the Commonwealth's writ of prohibition.

         A. A writ of prohibition is an appropriate remedy to seek relief in this case.

         The Commonwealth petitions this Court for a writ of prohibition seeking to prevent enforcement of Judge Grise's order for the use of public funds because the Judge acted erroneously in issuing the order. Such a writ is the proper avenue for relief in this case.[3]

         A writ of prohibition "is an 'extraordinary remedy' that Kentucky courts tiave always been cautious and conservative both in entertaining petitions for and in granting such relief."[4] Courts typically "divide[] writ cases into 'two classes,' which are distinguished by Svhether the inferior court allegedly is (1) acting without jurisdiction (which includes beyond its jurisdiction), or (2) acting erroneously within its jurisdiction."[5]

         "Under this second class of cases, a writ 'may be granted upon a showing 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." [6]

         In ordering the use of public funds for Meece's private experts, the trial court was acting within its jurisdiction. The Commonwealth's only avenue for writ relief is upon a claim that, in ordering the use of public funds, the trial court acted erroneously in a way that would cause the Commonwealth to suffer great and irreparable injury for which an appeal would not be an adequate remedy.

         Before addressing the alleged error of the trial court, we note that the Commonwealth has demonstrated the minimum threshold showing of harm and lack of redressability on appeal. In Commonwealth v. Paisley, this Court granted the Commonwealth's writ of prohibition seeking to prevent enforcement of a circuit court order allowing public funds to be disbursed under KRS 31.185.[7] We determined that the Commonwealth had met the minimum threshold requirement because it "would be unable to recoup the funds once they are expended, thereby satisfying the inadequate remedy requirement," and, because the facts were capable of frequent repetition, the Commonwealth would "suffer irreparable injury in the form of massive payouts of funds to indigent defendants seeking private expert opinions."[8]

         For these same reasons, we conclude that the Commonwealth has met the minimum threshold showing of harm and lack of redressability on appeal. We must now determine whether the circuit court is acting erroneously by ordering the disbursement of public funds.

         B. The circuit court did not err in holding an ex parte hearing to determine whether Meece was entitled to state funds for the procurement of private expert testimony.

         The Commonwealth first argues that Judge Grise is acting erroneously because he failed to allow the Commonwealth to participate in Meece's request for post-conviction public funds under KRS 31.185. That statute, in relevant part, provides the following:

(1) Any defending attorney operating under the provisions of this chapter is entitled to use the same state facilities for the evaluation of evidence as are available to the attorney representing the Commonwealth. If he or she considers their use impractical, the court of competent jurisdiction in which the case is pending may authorize the use of private facilities to be paid for on court order from the special account of the Finance and Administration Cabinet.
(2) The defending attorney may request to be heard ex parte and on the record with regard to using private facilities under subsection (1) of this section. If the defending attorney so requests, the court shall conduct the hearing ex parte and on the record.[9]

         The Commonwealth concedes that, when read together, subsections (1) and (2) entitle an indigent post-conviction petitioner to an ex parte hearing to determine whether he may use a private expert witness because the use of state facilities is "impractical." But the Commonwealth argues that the trial court must first determine, in a public hearing and with the Commonwealth's participation, whether the use of the requested private expert is "reasonably necessary for a full presentation of the petitioner's case." Thus, the Commonwealth argues, Judge Grise abused his discretion in ruling on Meece's request for private experts without first allowing the Commonwealth to contest whether the use of private experts was "reasonably necessary."

         Before addressing the issue of whether the "reasonably necessary" determination must occur ex parte, we first find it necessary to clarify the state of the law with respect to KRS 31.185 in the post-conviction context. Specifically, we point out that this Court has never expressly held that ex parte hearings under KRS 31.185(2) are afforded to post-conviction petitioners, despite having held that a post-conviction petitioner may be entitled to public funds under KRS 31.185(1). Because we think our case law and the purpose of the statute requires it, we hold now that KRS 31.185(2) applies to postconviction petitioners.

         In Stopher v. Conliffe, this Court first addressed the applicability of KRS 31.185 to post-conviction petitioners.[10] There, "[w]e focused upon the 'defending attorney' language in subsections (1) and (2) . . . and held that the language evidenced the General Assembly's intent 'to limit the use of funds or facilities allowed under KRS 31.185 to attorneys representing an indigent defendant at trial.[11] We then "flatly declared that 'KRS 31.185 [in its entirety] does not apply to post-conviction proceedings."'[12]

         Shortly thereafter, however, this Court decided Paisley[13] and appeared to take a different position. In that case, we reviewed a trial court's order granting a post-conviction petitioner's request for public funds to pay for a private expert.[14] In so doing, we relied on KRS 31.185(1), despite its "defending attorney" language, for the proposition that a post-conviction petitioner may be entitled to public funds for the hiring of an expert witness if the post-conviction petitioner could show that the use of state facilities was impractical.[15] We held that the trial court had abused its discretion ...


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