Full Opinion

RENDERED: OCTOBER 23, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0487-MR BEN RICHARD, JR. APPELLANT APPEAL FROM BULLITT CIRCUIT COURT v. HONORABLE RODNEY D. BURRESS, JUDGE ACTION NOS. 10-CR-00385 AND 10-CR-00495 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AND ORDER DISMISSING; ORDER GRANTING WITHDRAWAL ** ** ** ** ** BEFORE: ACREE, CETRULO, AND EASTON, JUDGES. ACREE, JUDGE: Ben Richard, Jr. appeals the denial of his pro se motion to reinstate indictments against himself in two Bullitt Circuit Court cases. For the following reasons, we dismiss the appeal. Richard was before this Court previously when he brought a pro se appeal of the Jefferson Circuit Court’s denial of his motion for post-conviction relief pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. Richards v. Commonwealth, No. 2014-CA-000801-MR, 2016 WL 1403388 (Ky. App. Apr. 8, 2016).1 That opinion provides context and we quote it at length, as follows: On August 23, 2010, Richard[] was indicted in Jefferson County for rape in the first degree, sodomy in the first degree, sexual abuse in the first degree and for being a persistent felony offender in the first degree, arising from sexual contact with a child victim under 12 between 2008 and 2009. Just prior to trial, on August 24, 2011, Richard[] entered a plea in Jefferson Circuit Court to charges of sodomy in the first degree and sexual abuse in the first degree pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The plea included a twenty-year prison sentence and registration as a sex offender. In exchange, the charges of rape in the first degree and being a persistent felony offender in the first degree against Richard[] were dismissed. During Richard[’s] guilty plea, Richard[’s] attorney stated that the plea in this case was a part of a larger plea agreement with the Commonwealth. Under that agreement, Richard[] also entered a plea to charges against the same victim in Bullitt County of sexual abuse in the first degree and unlawful transaction with a minor in the second degree. In exchange, the Commonwealth dismissed charges against Richard[] for being a persistent felony offender in the first degree against the same victim in Bullitt County as in the present case, and two counts of sexual abuse in the first degree and one count of being a persistent felony offender in the first degree against a second victim in Bullitt County under a separate indictment. Judgment on the plea was entered August 25, 2011. 1 In that prior opinion, this Court misspelled Appellant’s last name. We correct that error when quoting the opinion. -2- On August 30, 2011, Richard[] filed a motion to withdraw his guilty plea, wherein he raised various claims of ineffective assistance of counsel. After counsel withdrew his representation, the trial court appointed a public defender for Richard[]. On December 16, 2011, the Jefferson Circuit Court conducted a hearing on Richard[’s] motion to withdraw his guilty plea, which included a review of his previous counsel’s representation in negotiating the plea. The court ultimately denied the motion and Richard[] was sentenced to twenty-years’ imprisonment on the charge of sodomy in the first degree and five-years’ imprisonment for sexual abuse in the first degree, to run concurrently for a total of twenty years, by judgment entered February 24, 2012. In March of 2012, Richard[] filed a pro se motion pursuant to RCr 11.42, in which he claimed that his plea was not entered knowingly and voluntarily. He also moved to terminate his appointed counsel. On August 1, 2013, post-conviction counsel from the Department of Public Advocacy filed a supplement to Richard[’s] original RCr 11.42 motion, which alleged that Richard[’s] trial counsel was deficient for his failure to interview witnesses. On September 13, 2013, Richard[] filed an additional supplement to his RCr 11.42 motion. The Jefferson Circuit Court denied Richard[’s] motion by Opinion and Order entered April 24, 2014. Id. at *1. After his conviction in Jefferson Circuit Court, Richard filed numerous pro se motions there and in Bullitt Circuit Court. At one point, in the latter court, he sought in forma pauperis status, appointment of counsel, and reinstatement of the two indictments in Bullitt County. The circuit court denied all -3- motions and Richard brought an appeal pursuant to Gabbard v. Lair, 528 S.W.2d 675 (Ky. 1975). This Court proceeded under the impression “that the circuit court . . . denied Appellant’s motions to proceed in forma pauperis and motion for appointment of counsel based on the charges having been dismissed.” Richard v. Commonwealth, No. 2024-CA-0928-ME, at 3 (Ky. App. Jan. 30, 2025) (Order).2 We vacated the circuit court’s orders and remanded “for entry of a written order ruling on Appellant’s motion to proceed in forma pauperis based solely on whether he qualifies for in forma pauperis status.” Id. at 4. On remand, the circuit court granted Richard’s motion to proceed in forma pauperis and ordered the appointment of counsel to appeal its denial of Richard’s motion to reinstate his indictments which was not addressed in the Gabbard appeal. In accordance with Anders v. California, Richard’s court appointed counsel represented to this Court that she “finds his case to be wholly frivolous, after a conscientious examination of it, [and] . . . so advise[d] the court and request[ed] permission to withdraw.” 386 U.S. 738, 744 (1967). She filed a 2 This Court only addressed the subject matter of the Gabbard appeal and expressly declined to address the motion to reinstate the indictments. Whether the circuit court had jurisdiction to address such a motion was not squarely before the Court then. It is now. -4- brief stating she did not find “anything in the record that might arguably support the appeal” and, as required, provided a copy of that brief to Richard who supplemented it with his own.3 Id. The issue of reinstating the Bullitt County indictments is now before the Court. In compliance with Anders, “the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds[,] it may grant counsel’s request to withdraw and dismiss the appeal[.]” Id. “On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” Id. We have done our duty here and find no non-frivolous argument in Richard’s counsel’s brief and none in Richard’s supplemental brief. Hence, we dismiss the appeal, and for substantive reasons as well. First, we question whether the circuit court had jurisdiction to enter orders in these particular cases after they became final. “[A] dismissal without prejudice is a final and appealable order.” Davidson v. Castner-Knott Dry Goods Co., Inc., 202 S.W.3d 597, 603 (Ky. App. 2006). When Richard failed to timely appeal the dismissals, they became final and no longer appealable. Therefore, the 3 The Commonwealth argued Richard’s supplemental brief does not substantially comply with the Kentucky Rules of Appellate Procedure and asked for it to be stricken. While correct, and while lacking coherence, we find it unnecessary to strike the supplemental brief. -5- circuit court lost jurisdiction of those particular cases. Richard cites no statute or rule granting anew the circuit court’s jurisdiction to address what amounts to an improper post-final-judgment collateral attack. The circuit court acted without jurisdiction when it entertained the motions. Second, while we question the circuit court’s jurisdiction, we also point out that granting such a motion would violate the separation of powers provisions of the Kentucky Constitution. KY. CONST. § 28. “It is manifest that the prosecution of crime is an executive function . . . . [I]t is beyond dispute that the executive branch’s prosecutorial function includes the decision whether or not to prosecute . . . .” Flynt v. Commonwealth, 105 S.W.3d 415, 424 (Ky. 2003) (internal quotation marks and citation omitted). Here, we are referencing the “exercise of one of the core powers of the Executive Branch . . . , the power to prosecute.” United States v. Armstrong, 517 U.S. 456, 467 (1996). Richard presents no nonfrivolous arguments on appeal. Therefore, in accordance with Anders v. California, we GRANT counsel’s motion to withdraw and DISMISS the appeal. ALL CONCUR. -6- ENTERED: _____10/24/2026_____ HON. GLENN E. ACREE JUDGE, COURT OF APPEALS BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE: Adam Meyer Russell Coleman Frankfort, Kentucky Attorney General of Kentucky SUPPLEMENTAL BRIEF FOR Jenny L. Sanders APPELLANT: Assistant Attorney General Frankfort, Kentucky Ben Richard, Jr., pro se Burgin, Kentucky -7-