Harold Dee Jones v. Commonwealth of Kentucky

RENDERED: JANUARY 2, 2026; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2025-CA-0162-MR

HAROLD DEE JONES APPELLANT

v.

APPEAL FROM WARREN CIRCUIT COURT

HONORABLE J. B. HINES, JUDGE

ACTION NO. 24-CI-00015

COMMONWEALTH OF KENTUCKY

AND JOHN B. BROWN, JUDGE

APPELLEES

OPINION

AFFIRMING

** ** ** ** **

BEFORE: ECKERLE, MCNEILL, AND MOYNAHAN, JUDGES.

MCNEILL, JUDGE: Harold Jones ("Jones"), pro se, appeals an order of the Warren Circuit Court that denied his petition for a writ of mandamus wherein he sought an order to compel the Warren District Court to rule on his motion to dismiss a misdemeanor charge of theft by deception. For the reasons stated herein, we affirm the circuit court.

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Factual and Procedural Background

The record before us is extremely scant. However, we are able to discern that Jones was charged with theft by deception, a misdemeanor, in the Warren District Court in August 2019. We are also able to discern that multiple arrest warrants for Jones were issued and either served or recalled during the pendency of the district court proceedings. It appears Jones was incarcerated for multiple felony offenses in Warren, Muhlenberg, Butler, and Ohio counties at the time.¹According to Jones, in April 2023, while incarcerated on other offenses, he filed a motion in Warren District Court to dismiss the theft by deception charge for failure to prosecute.²Jones insists the district court took no action on his motion. In January 2024, Jones filed a petition for a writ of mandamus in the Warren Circuit Court, wherein he asked the circuit court to issue a writ compelling the district court to rule on his motion to dismiss. At the time the petition was filed, Jones was an inmate at Bell County Forestry Camp. The circuit court denied the writ. This appeal followed.

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Standard of Review

Generally, an appellate court reviews the denial of a writ under an abuse of discretion standard. Stars Interactive Holdings (IOM) Ltd. v. Wingate,

594 S.W.3d 181, 185 (Ky. 2020).

Analysis

Before we begin our analysis, we note that the Commonwealth urges us to strike Jones' brief for failure to provide 1) statements of preservation at the beginning of each argument; and 2) citations to the record throughout his arguments in accordance with Kentucky Rule of Appellate Procedure ("RAP") 32(A)(4). This Court has three options when a party fails to follow the mandates of the RAP: ignore the deficiency, strike the brief in whole or in part, or review only for manifest injustice.³Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021); see also RAP 31(H) which states that this Court may strike a brief "for failure to substantially comply with the requirements of these rules." In this case, because the record before us is only approximately thirty pages, we choose to ignore the deficiency and proceed with review.

A writ of mandamus

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is an extraordinary remedy which compels the performance of a ministerial act or mandatory duty where there is a clear legal right or no adequate remedy at law. County of Harlan v. Appalachian Reg'l Healthcare, Inc.,

85 S.W.3d 607, 613 (Ky. 2002). It should be cautiously employed. It is not a common means of redress and is certainly not a substitute for appeal. Mischler v. Thompson, 436 S.W.3d 498, 502-03 (Ky. 2014). We first address the circuit court's role as a court of original jurisdiction for a petition for a writ. This authority is conferred by Kentucky Revised Statute ("KRS") 23A.080(2), which provides, "[t]he Circuit Court may issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause within its appellate jurisdiction." The procedure for filing a petition for a writ is contained in the RAP. Specifically, RAP 60 provides, in relevant part only:

(A) Applicability. Original proceedings in an appellate court may be prosecuted only against a judge or agency whose decisions may be reviewed as a matter of right by that appellate court. All other actions must be prosecuted in accordance with applicable law.

. . . .

(C) Content of the Petition. The petition must set forth:

(1) The name of each respondent against whom relief is sought;

(2) The name of each real party in interest and that party's counsel. A real party in interest for purpose of this rule, RAP 60, is any party in the

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circuit court action from which the original action arises who may be adversely affected by the grant or denial of the relief sought in the petition;

(3) The style and case number of any underlying action pending in a circuit court or in the Court of Appeals;

(4) An explicit statement of the relief sought;

(5) A clear and concise statement of (a) the material facts of the action, with express reference to any order sought to be reviewed and the ground on which jurisdiction is alleged; (b) the questions of law involved with citations to authority pertinent to each question; and (c) the reasons why relief should be granted;

(6) An appendix containing any items permitted by paragraph (E) of this rule, and copies of any orders or other papers relevant to the action; and

(7) Proof of service on all respondents and real parties in interest as required by RAP 5(A).

(D) Response. The party against whom relief is sought and any real party in interest may, within 20 days after the date on which the petition was filed, file a response that conforms to RAP 5 and RAP 7. A responding party may submit evidence as permitted by paragraph (E) of this rule.

(Emphasis in original.)

Turning to Jones' petition, we note that John B. Brown, Judge, Warren District Court, is listed as the Respondent, thus satisfying RAP 60(C)(1). However, the circuit court denied the writ without reviewing the merits due to

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what it concluded was Jones' failure to properly serve the Respondent. The circuit court found

the Petition does not comply with the service and notice

requirements of CR^[4]4 and CR 5. Since the case was

originally filed on January 4, 2024, there has been no

indication that the Respondent was properly served or

noticed. Absent an indication that Respondent was

properly served or noticed according to the requirements

of CR 4 and CR 5, any judgment rendered against him

would be void. Therefore, this Court DENIES the

Petition for Wilt of Mandamus and DISMISSES

WITHOUT PREJUDICE.

(Emphasis in original.) However, as instructed by the RAP, compliance with CR 4 is not mandated in service of the petition. RAP 5(A) states, in relevant part, that "[a]ll documents filed pursuant to these rules shall be served as set forth in CR 5.01 and

5.02 and shall contain a certificate indicating the date and manner of service signed by a party or its counsel as set forth in CR 5.03." Jones was in compliance with the RAP in this regard. His petition contained a certificate of service with his electronic signature, indicating it was mailed to the district court judge by first- class mail on January 2, 2024. However, even if Jones failed to properly serve the district court judge, when it comes to a petition for a writ, "[t]he trial judge is a party in name only. He has no interest in the outcome of the litigation, and no

4 Kentucky Rule of Civil Procedure.

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connection to it other than the obligation to abide by the [appellate court's] decision." Sweasy v. King's Daughters Memorial Hosp., 771 S.W.2d 812, 817 (Ky. 1989). Rather, "[t]he real party in interest in the trial court is the person who will be adversely affected if the Petition is granted; he may respond and defend even though the trial judge does not." Id. See also RAP 60(D), supra. Jones failed to name the real party in interest in his petition. RAP 60(C)(2), supra, provides in relevant part, that "[a] real party in interest for purpose of this rule, RAP 60, is any party in the circuit court action from which the original action arises who may be adversely affected by the grant or denial of the relief sought in the petition[.]" In this instance, the real party in interest is the Commonwealth; specifically, the Warren County Attorney. The certificate of service in Jones' petition indicates a copy of the petition was served upon the Kentucky Attorney General. This is insufficient service. KRS 15.020(3) provides

[e]xcept as otherwise provided in KRS 48.005 and 2000

Ky. Acts ch. 483, sec. 8, the Attorney General shall

appear for the Commonwealth in all cases in the Supreme

Court or Court of Appeals wherein the Commonwealth is

interested, and shall also commence all actions or enter

an appearance in all cases, hearings, and proceedings in

and before all other courts, tribunals, or commissions in

or out of the state, and attend to all litigation and legal

business in or out of the state required of the office by

law, or in which the Commonwealth has an interest, and

any litigation or legal business that any state officer,

department, commission, or agency may have in

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connection with, or growing out of, his, her, or its official duties, except where it is made the duty of the Commonwealth's attorney or county attorney to represent the Commonwealth. When any attorney is employed for any said agency, the same shall have the approval of such agency before such employment. (Emphasis added.)

The Attorney General has filed an Appellee's brief in this Court as provided by the statute. However, Jones' petition for a writ of mandamus was an original action that required notice to the Warren County Attorney who, by law, is responsible for the prosecution of misdemeanors in the district court. "As a rule, the county attorney is responsible for prosecuting all misdemeanors, violations, and juvenile matters, as well as conducting preliminary hearings in felony cases."

Commonwealth v. Vibbert, 397 S.W.3d 910, 915 (Ky. App. 2013). KRS 15.725(2) further provides

[t]he county attorney shall attend the District Court in his county and prosecute all violations whether by adults or

by juveniles subject to the jurisdiction of the regular or juvenile session of the District Court of criminal and

penal laws, except as provided in KRS Chapter 131,

within the jurisdiction of said District Court.

The real party in interest (i.e., the Warren County Attorney) is an indispensable party to the petition for a writ of mandamus because it was the party who would be adversely affected if relief was granted to Jones. Sweasy, 771 S.W.2d at 817. "[A] failure to name an indispensable party is a fatal error

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requiring dismissal." Courier-Journal Inc. v. Lawson, 307 S.W.3d 617, 623 (Ky. 2010); see also CR 19.01 (a person is an indispensable party if "in his absence complete relief cannot be accorded among those already parties[.]"). It is unclear from the scant record before us why Jones' case languished in district court.⁵It is possibly tied to the fact that he was serving sentences for multiple felony convictions in other counties. The record before us shows Jones was moved to at least two different correctional facilities during the pendency of writ proceedings, and has been moved to a third facility pending this appeal. Regardless, Jones failed to take the proper procedural steps in seeking a writ of mandamus because he failed to name or serve the Warren County Attorney.

"Proceeding pro se does not provide one with a license not to comply with relevant rules of procedural and substantive law." Taylor v. Westrock Services, LLC, 719 S.W.3d 67, 70 (Ky. App. 2025) (internal quotation marks and citations omitted). Although the circuit court was incorrect when it determined Jones failed to comply with CR 4 and CR 5, "[a]n appellate court may affirm a trial court for any reason sustainable in the record." Stephens v. Denison, 150 S.W.3d 80, 82 n.1 (Ky. App.

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2004) (citation omitted). We also note that, because the circuit court dismissed the petition without prejudice, Jones can potentially correct his errors and refile his petition. Accordingly, because Jones failed to name the real party in interest in his petition for writ of mandamus, we affirm the circuit court.

Conclusion

For the foregoing reasons, the judgment of the Warren Circuit Court is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT:

Harold Dee Jones, pro se LaGrange, Kentucky

BRIEF FOR APPELLEE

COMMONWEALTH OF

KENTUCKY:

Russell Coleman Attorney General of Kentucky Joseph A. Beckett

Assistant Attorney General Frankfort, Kentucky