author: LAMBERT, Chief Justice. COOPER, Justice,

text:
    COMMONWEALTH of Kentucky, Appellant, v. Sophal PHON, Appellee.
    No. 1998-SC-0836-CL.
    Supreme Court of Kentucky.
    March 23, 2000.
    As Corrected April 20, 2000.
    Albert B. Chandler III, Attorney General of Kentucky, David A. Smith, Dana M. Todd, Assistant Attorneys General, Criminal Appellate Division, Frankfort, for appellant.
    Thomas M. Ransdell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for appellee.
   LAMBERT, Chief Justice.

The issue here is whether a sentence of life without parole may be imposed for a capital offense even though that penalty did not exist at the time the crime was committed. To decide this matter, it is first necessary to resolve the apparent conflict between two statutes: 1) KRS 446.080(3), which mandates that retroactive application of a statute be expressly stated, and 2) KRS 446.110, which allows mitigating provisions of new laws to be applied retroactively if the affected party consents. Thereafter, it will be necessary to determine whether the sentence of life without parole indeed mitigates the death penalty, as required for the application of KRS 446.110.

The underlying facts giving rise to this issue are as follows. Sophal Phon and his co-defendants, Phannachay, Pok, Sanani-kone, and Choeung, were jointly indicted for the 1996 burglary, robbery, and execution-style murder of a Warren County couple. The Commonwealth filed notice of its intent to seek the death penalty against four of-the five defendants, including Phon, then a seventeen year old juvenile.

Before Phon’s trial, the Commonwealth filed a motion seeking to prevent the retroactive application of newly authorized sentences contained in HB 455, “the new crime bill,” which added life without parole to the capital sentencing scheme. In support of its request, the Commonwealth argued that Phon had committed the crimes in 1996, more than two years before the July 15, 1998 effective date of HB 455. The Commonwealth further argued that Phon’s trial was scheduled for July 6, 1998, nine days before the effective date of HB 455. The Commonwealth’s motion was denied by order entered July 2,1998.

On July 5, 1998, the day before his trial was scheduled to begin, Phon pled guilty in Warren Circuit Court to two counts of murder, first degree assault, first degree robbery, and first degree burglary. After a sentencing hearing held before a jury, Phon was sentenced to Life Without Parole. Final judgment, from which Phon has not appealed and from which the time to appeal has expired, was entered on September 4,1998.

Pursuant to CR 76.37(10), the Attorney General of the Commonwealth of Kentucky moved this Court to certify the law regarding the following question:

Do the newly authorized sentences contained in HB 455, “the new crime bill,” apply retroactively to capital crimes committed before July 15,1998?

As aforementioned, section 71 of HB 455 added life without parole to Kentucky’s capital sentencing range. Section 71 also changed existing law by placing a fifty year limit on the term of years provision, which had previously had no limit. Section 71 is silent, however, as to whether it applies to capital crimes committed before July 15, 1998, its effective date, but not tried or retried until thereafter.

The Commonwealth argues that retroactive application of sentences contained in the new crime bill is prohibited by KRS 446.080(3), which provides, “No statute shall be construed to be retroactive, unless expressly so declared.” There is another statute in the statutory construction chapter, however, which suggests a different conclusion. KRS 446.110 states in relevant part:

If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.

According to this provision, the penalty of life without parole could be applied, with the defendant’s consent, if life without parole indeed mitigates the death penalty.

When there appears to be a conflict between two statutes, as here, a general rule of statutory construction mandates that the specific provision take precedence over the general. Moreover, it is the Court’s duty to harmonize the law so as to give effect to both statutes. Finally, statutes should be construed in such a way that they do not become meaningless or ineffectual. While KRS 446.080(3) deals with retroactive application of statutes in general, KRS 446.110 deals specifically with the procedure to be followed when a law is amended. Thus, KRS 446.110 is more specific and should prevail over KRS 446.080(3). This interpretation gives effect to both statutes and prevents KRS 446.110 from being meaningless where there is no express declaration of retroactivity in a new statute containing mitigating penalties.

The Commonwealth further contends, however, that KRS 446.110 should not apply because life without parole is not a mitigating .penalty. Hamilton v. Commonwealth, however, indicates otherwise. In Hamilton, a prisoner questioned the validity of the Governor’s commutation of a death sentence to a sentence of life in prison without the privilege of parole. The Court quoted approvingly from Biddle v. Perovich, wherein Justice Holmes wrote, “By common understanding, imprisonment for life is a less penalty than death.” In a subsequent appeal by the same prisoner and others similarly situated, the Court stated, “The fact that the death sentences imposed ... could not today be executed is no reason, in our opinion, why death cannot bé considered to have been ... á higher penalty than life imprisonment without privilege of parole.”

Yet the Commonwealth argues that life without parole is not “certainly” or “definitely” mitigating so as to fall within the statutory meaning of mitigating because the new penalty lowers neither the maximum nor the minimum possible punishment. We disagree. Life without parole is a lesser penalty than death because it allows a convicted defendant continued survival, albeit with severely limited individual liberties, rather than the termination of his life.

Accordingly, upon the unqualified consent of the defendant, a sentence of life .without parole may be lawfully imposed for capital crimes committed before July 15, 1998. The law of Kentucky is so certified to the Attorney General of the Commonwealth of Kentucky.

GRAVES, KELLER, JOHNSTONE, STUMBO, and WINTERSHEIMER, JJ„ concur.

COOPER, J., files a separate concurring opinion.

COOPER, Justice,

concurring.

Although life without parole is certainly less onerous than death, Hudson v. Commonwealth, Ky., 597 S.W.2d 610 (1980), it is substantially more onerous than life without parole for twenty-five years. Since the new penalty is more onerous than one of the two penalties previously authorized by KRS 532.030(1) and less onerous than the other, I am unable to conclude that the addition of the newly authorized penalty by the 1998 amendment of KRS 532.030(1) satisfies the “definitely mitigating” test which we have applied to KRS 446.110 since Coleman v. Common wealth, 160 Ky. 87, 169 S.W. 595, 597 (1914).

However, Appellee Phon obviously believed the new penalty was “definitely mitigating,” for otherwise he would not have requested an instruction authorizing its imposition. If he is correct, then the instruction in this case was properly given pursuant to KRS 446.110. If he is incorrect, then he waived any possible ex post facto claim regarding the imposition of a penalty more onerous than life without parole for twenty-five years. Either way, the sentence in this case was determined by a properly constituted jury, which, having been presented with all three options, decided that life without parole was the most appropriate penalty in this case. We should not presume to hold that the verdict was wrong and that death was a more appropriate penalty in this case. Nor should we presume that absent the option of life without parole the jury would have imposed the death penalty rather than a sentence of life without parole for twenty-five years, or vice versa.

      . Pursuant to CR 76.37(10), the Attorney General of the Commonwealth of Kentucky sought certification of this issue. As such, and explained herein, this opinion is only for the purpose of certifying the correct interpretation of Kentucky law.

      . See Hudson v. Commonwealth, Ky., 597 S.W.2d 610, 611 (1980) (death penalty could not be imposed in cases in which the crime was committed before the effective date of 1976 revised death penalty statute); Dennison v. Commonwealth, Ky.App., 767 S.W.2d 327, 328 (1988) (youthful offender statute, KRS 640.010, could apply prospectively only as it did not specifically state that it was to be applied retroactively).

      . Porter v. Commonwealth, Ky., 841 S.W.2d 166, 168-169 (1992) (citing Morgan County Board of Education v. Elliott, 260 Ky. 672, 86 S.W.2d 670 (1935)); City of Bowling Green v. Board of Ed. of Bowling Green Independent School Dist., Ky., 443 S.W.2d 243, 247 (1969).

      . Allen v. McClendon, Ky., 967 S.W.2d 1, 3 (1998); Ledford v. Faulkner, Ky., 661 S.W.2d 475, 476 (1983); City of Bowling Green v. Board of Ed., 443 S.W.2d at 247.

      . Allen v. McClendon, 967 S.W.2d at 3.

      . Ky., 458 S.W.2d 166 (1970).

      . Id. at 167 (quoting Biddle v. Perovich, 274 U.S. 480, 486, 47 S.Ct. 664, 665, 71 L.Ed. 1161 (1927)).

      . Hamilton v. Commonwealth, Ky., 514 S.W.2d 188, 190 (1974).

      . Coleman v. Commonwealth, 160 Ky. 87, 169 S.W. 595, 597 (1914) (penalty in effect at time crime committed applies unless new penalty is "certainly” or "definitely” mitigating).


source: Caselaw Access Project

author: COOPER, Justice. KELLER, Justice,

license: Public Domain

text:
    Mark JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 1998-SC-0180-MR.
    Supreme Court of Kentucky.
    March 28, 2000.
    As Modified May 31, 2000.

      Thomas M. Ransdell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    A.B. Chandler, III, Attorney General, Matthew D. Nelson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   COOPER, Justice.

Following a trial by jury in the Campbell Circuit Court, Appellant Mark Johnson was convicted of arson in the first degree. He waived the sentencing phase of the trial and was subsequently ■ sentenced to twenty years in prison. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). We have determined that the appeal was prematurely filed and must be remanded for a ruling on Appellant’s post-trial motions and for an evidentiary hearing on the issue of his competency to stand trial. The relevant events as they occurred in the trial court are as follows:

November 2k, 1997: A verdict of guilty was returned by the jury. Appellant waived the jury sentencing phase of his trial pursuant to an agreement that he would be sentenced to no more than the minimum sentence of twenty years. KRS 513.020(2).

December k, 1997: An Order was entered setting final sentencing for January 12,1998.

December k, 1997: Appellant filed a motion for a new trial on grounds of newly discovered evidence premised upon the affidavit of a witness who claimed to possess exculpatory evidence, and defense counsel’s assertion that he had obtained newly discovered evidence which would impeach the credibility of a witness who testified at trial.

December 18, 1997: Appellant filed a supplemental motion for a new trial on grounds of additional newly discovered evidence, viz: the contents of a post-trial letter to Appellant from his wife.

December 30, 1997: Appellant filed a motion for “a new trial and an order of dismissal notwithstanding the verdict” on grounds that defense counsel had become aware “that perhaps the Defendant was not capable of assisting his defense or appreciating the nature and consequences of the proceedings against him.”

January 13, 1998: An “Order of Mental Examination” was entered, reciting that the trial judge had “reasonable grounds to believe that the Defendant may be incompetent” and ordering the Kentucky Correctional Psychiatric Center (KCPC) to examine Appellant and file a report with respect to both Appellant’s competency to stand trial and his criminal responsibility at the time of the offense. The Order further provided that upon receipt of the report, an evidentiary hearing would be held on the issue of competency at which both parties would be permitted to cross-examine the examining physician. KCPC subsequently delegated the duty to examine Appellant to the Comprehensive Care Centers of Northern Kentucky.

January 16, 1998: Appellant filed another supplementary motion for a new trial on grounds of newly discovered evidence premised upon the affidavit of the owner of the damaged building that the fire caused only minor damage, and the affidavit of a cousin of Appellant’s wife stating his belief that Appellant’s wife and her boyfriend had conspired to set the fire.

February 19, 1998: Dr. George W. Rogers, Jr., of Comprehensive Care Centers of Northern Kentucky, filed a report stating that, pursuant to the Order of January 13, 1998, he had examined Appellant at the Campbell County Detention Center and was of the opinion that Appellant was competent to stand trial. However, Dr. Rogers recommended that Appellant be further evaluated at KCPC with respect to his criminal responsibility at the time of the offense.

March 2, 1998: A final sentencing hearing was held at which the trial judge considered both Dr. Rogers’s report and the presentence investigation report prepared by the division of probation and parole, but did not hold a formal evidentiary hearing. The trial judge expressed his intent to follow Dr. Rogers’s recommendation for a full psychiatric evaluation.

I’m most concerned at this point, Mr. Johnson with your mental status.... I don’t really doubt your statement, Mr. Johnson, that you believe that you didn’t do this.... I do believe that in your head and in your mind, you don’t think that you did this.... And that’s why I want to get this psychiatric evaluation done.

Judgment was entered on the same day adjudging Appellant guilty of arson in the first degree and sentencing him to twenty years in prison. The judgment concluded with the following paragraph:

IT IS FURTHER ORDERED that the Defendant be transferred to the Kentucky Correctional Psychiatric Center as soon as practicable for further evaluation and psychiatric care. Defendant’s motion for New Trial herein or Judgment Notwithstanding the Verdict shall be treated as if filed post-sentencing and shall remain under submission and no appeal time shall run until the psychiatric report of February 19, 1998 is updated by the Kentucky Correctional Psychiatric Center.

March 3, 1998: The following documents were entered into the court record: (1) Notice of Appeal “from the final judgment entered herein;” (2) Designation of Record, including all pleadings and documents filed in the court record; (3) Order permitting Appellant to appeal in forma pauperis; (4) Order staying the appeal pending a ruling on all post-trial motions.

April 2, 1998: Certification of record on appeal was completed and filed.

May 29, 1998: Dr. Candace Walker of KCPC filed a report reflecting her examination and treatment of Appellant and that she found no evidence to support an insanity defense (and that Appellant had advised her that he did not wish to plead insanity as a defense). However, she further reported that Appellant suffered from hypomania, which “could have rendered his communication with his attorney inadequate for proper preparation and presentation of his defense.”

May 29, 1998: An Order was entered overruling Appellant’s motion for a new trial or judgment notwithstanding the verdict and ordering that the Order and Dr. Walker’s report be filed as a supplement to the record on appeal. No supplemental Notice of Appeal was filed after entry of this Order.

Criminal Rule 10.06(1) provides as follows:

The motion for a new trial shall be served not later than five (5) days after return of the verdict. A motion for a new trial based upon the ground of newly discovered evidence shall be made within one (1) year after the entry of the judgment or at a later time if the court for good cause so permits.

The rule clearly provides that, although a motion for -a new trial premised upon newly discovered evidence may be filed within one year of the judgment, a motion premised upon any other grounds must be filed within five days of the verdict.- None of Appellant’s four post-verdict motions were filed within five days of the verdict. The motion pertaining to his possible incompetency was filed thirty-six days after the verdict and, thus, too late to raise the issue.

However, a trial judge may order a competency evaluation sua sponte at any stage of the proceedings if he/she has reasonable grounds to believe that the defendant is incompetent to stand trial. KRS 504.100(1). Here, the trial judge specifically found in his written order of January 13, 1998 that there were reasonable grounds to believe that Appellant was incompetent. He reiterated his concerns during the final sentencing hearing on March 2,1998.

Criminal Rule 12.04(3) provides as follows:

The time within which an appeal may be taken shall be ten (10) days after the date of entry of the judgment or order from which it is taken, subject to Rule 12.06 [notice of entry], but if a timely motion has been made for a new trial an appeal from a judgment of conviction may be taken within ten (10) days after the date of entry of the order denying the motion; provided, however, that in the ease of a motion for new trial made later than five (5) days after return of the verdict, the appeal must be from the order overruling or denying-the motion, and the review on appeal shall be limited to the grounds timely raised by the motion as provided by Rule 10.06.

Thus, regardless of the issue of competency, the judgment of March 3, 1998 was not final, because Appellant’s post-trial motions were still pending. The same rule obtained under the former criminal code. Collins v. Commonwealth, 300 Ky. 258,188 S.W.2d 432 (1945).

Some jurisdictions hold that an appeal filed by a moving party before a ruling has been entered on his/her post-judgment motions constitutes an abandonment of those motions. In re Forfeiture of $104,, 591 in U.S. Currency, 589 So.2d 288 (Fla.1991); Grant v. Federal Land Bank, 586 So.2d 685 (La.Ct.App.1991). If we subscribed to that theory, the issue of Appellant’s competency to stand trial would be deemed to have been abandoned when he filed the notice of appeal. Other jurisdictions hold that the filing of an appeal is not an abandonment of pending post-judgment motions, but that the appeal is simply of no effect, i.e., the status of the case remains the same as if no appeal had been filed. People v. Everage, 308 Ill.App.3d 1082, 238 Ill.Dec. 726, 712 N.E.2d 830 (1999); Bailey v. Sound Lab, Inc., 694 P.2d 1043 (Utah 1984). If we subscribed to that theory, we would be forced to dismiss the appeal, because no appeal was taken from the purported final order of May 29, 1998. However, our approach is somewhat different.

In Commonwealth, Dep’t of Highways v. Stamper, Ky., 424 S.W.2d 821 (1967), the appeal was filed one day before the judgment was entered. It was held (1) the attempted appeal from the nonexistent judgment did not confer jurisdiction upon the appellate court, and (2) the subsequent signing and entry of the judgment did not breathe life into the premature appeal. Id. at 823. The appeal was ordered dismissed, but the Court did not specifically address the validity of the judgment which had been entered after the appeal was filed. As a general rule, except with respect to issues of custody and child support in a domestic relations case, the filing of a notice of appeal divests the trial court of jurisdiction to rule on any issues while the appeal is pending. Hoy v. Newburg Homes, Inc., Ky., 325 S.W.2d 301 (1959) (trial judge had no jurisdiction to enter an order permitting the filing of an amended complaint); Monsour v. Humphrey, Ky., 324 S.W.2d 813 (1959) (trial judge had no jurisdiction to enter an order amending the judgment); Louisville & N.R. Co. v. Paul’s Adm’r, 314 Ky. 473, 235 S.W.2d 787 (1950) (trial judge had no authority to supplement the record on appeal). There is authority permitting a trial judge to rule on a motion filed in a criminal case while the case is pending on appeal, if the motion raises new issues, e.g., newly discovered evidence or ineffective assistance of counsel, which could not have been the subject of the direct appeal. RCr 10.06(2); RCr 11.42(1); Wilson v. Commonwealth, Ky. App., 761 S.W.2d 182 (1988). That exception does not apply here, since all of Appellant’s post-trial motions were filed before the attempted appeal. Thus, the order of May 29,1998 was entered without jurisdiction and is a nullity.

The trial judge’s attempt to stay the appeal was also a nullity. Although a trial judge has a right to stay the enforcement of his/her own judgments, CR 62.01, CR 62.04, or to extend the time for filing an appeal for ten days under certain circumstances, CR 73.02(l)(d), Burchell v. Burchell, Ky.App., 684 S.W.2d 296 (1984), there is no provision permitting a trial judge to stay an appeal after it has been filed. RCr 10.06(2) clearly anticipates that only an appellate court has the authority to stay an appeal.

Since the order of May 29, 1998 was a nullity, we need not decide whether the trial judge’s failure to hold an evidentiary hearing on the issue of competency was contrary to the dictates of both his own order of January 13, 1998 and of KRS 504.100(3). But see Mills v. Commonwealth, Ky., 996 S.W.2d 473 (1999), cert. denied, — U.S. —, 120 S.Ct. 1182, 145 L.Ed.2d 1088 (2000); Gabbard v. Com monwealth, Ky., 887 S.W.2d 547 (1994); Clark v. Commonwealth, Ky., 591 S.W.2d 365 (1979). The Commonwealth’s reliance on Conley v. Commonwealth, Ky.App., 569 S.W.2d 682 (1978) in this respect is misplaced, as that case was interpreting the version of KRS 504.040 which existed prior to its 1978 amendment and which did not mandate a hearing on the issue of a defendant’s competency to stand trial. As amended by 1978 Ky. Acts, ch. 290, § 4, KRS 504.040(4) provided that “[a]fter the defendant is examined and the report is filed, the court shall order an evidentiary hearing on the issue of defendant’s competency to stand trial.” (Emphasis added.) That is the language which was being interpreted in Clark v. Commonwealth, supra, and which was carried over into KRS 504.100(3) when KRS 504.040 was repealed and recodifed in 1982. 1982 Ky. Acts, ch. 113, §§ 5, 14. Substantially the same language appears in the present version of KRS 504.100(3), which was the version being interpreted in Mills v. Commonwealth, supra, and Gabbard v. Commonwealth, supra.

Accordingly, this appeal is dismissed as premature and this action is remanded to the Campbell Circuit Court for a ruling on Appellant’s post-trial motions and for an evidentiary hearing and a ruling on the issue of Appellant’s competency to stand trial.

LAMBERT, C.J.; GRAVES, JOHNSTONE, STUMBO and WINTERSHEIMER, JJ., concur.

KELLER, J., concurs in part and dissents in part by separate opinion.

KELLER, Justice,

concurring in part and dissenting in part.

I concur with the majority opinion to the extent that it holds that we should remand this case to the trial court with instructions for it to hold an evidentiary hearing regarding Johnson’s competency, but I would limit the scope of the hearing and determination to the question of whether Johnson was competent at the time of his sentencing. Johnson brought no pretrial motions regarding his competency before the trial court and, in fact, raised no issue involving his mental illness prior to the jury’s return with a guilty verdict. On December 30, 1997, Johnson, for the first time, brought an issue regarding his mental status before the trial court in a motion styled a Motion for a New Trial and an Order of Dismissal Notwithstanding the Verdict which he filed between the date when the jury returned its verdict, November 24, 1997, and the date of his final sentencing and the entry of final judgment, March 2, 1998. The record reflects that both defense counsel’s declarations regarding Johnson’s ability to assist in his defense and the trial court’s own doubts regarding the appellant’s competency expressed in its, Order of Mental Examination entered January 13, 1998 provided “reasonable grounds [for the trial court] to believe the defendant is incompetent.” KRS 504.100(1). In light of this, the trial court should not have sentenced the defendant without first ascertaining his competency status by conducting a hearing, as provided in KRS 504.100, on the issue whether he was competent to assist his counsel in sentencing proceedings. KRS 504.090 (“No defendant who is incompetent to stand trial shall be tried, convicted, or sentenced so long as the incompetency continues.” Id.) Trial counsel preserved this issue for our review by objecting that the unresolved questions regarding Johnson’s mental health status constituted legal cause to postpone sentencing. Accordingly, I concur in the majority opinion to the extent that it holds that this matter should be remanded to the trial court for a hearing on Johnson’s competency, subject to the qualifications expressed above.

I do not agree, however, with the majority’s view that Johnson prematurely filed this appeal or with its holding dismissing the appeal and remanding the matter to Campbell Circuit Court for a ruling on the post-trial motions filed prior to the trial court’s entry of judgment. Each of the four post-trial/pre-judgment motions for a new trial filed by Johnson raises issues regarding newly discovered evidence. Accordingly, the appropriate time for filing such motions is not, as the logic of the majority opinion would suggest, within one year of the verdict, but rather, as provided in RCr 10.06, “A motion for a new trial based upon the ground of newly discovered evidence shall be made within one (1) year after the entry of the judgment or at a later time if the court for good cause so permits.” RCr 10.06(1) (emphasis added). The overwhelming implication of this section is that motions for new trial which allege newly discovered evidence will not be filed prior to the entry of final judgment. I agree, however, with the majority opinion that, in order to be timely filed, a motion for a new trial based on any grounds other than newly discovered evidence must be filed within five (5) days of the verdict. In my opinion, therefore, all of the post-verdict/prejudgment motions, with the exception of Johnson’s motion for new trial addressing competency issues, were not properly before the trial court, and had no legal significance because Johnson had not timely filed them. Accordingly, the three post-verdict/prejudgment motions for a new trial had no effect on the trial court’s jurisdiction to enter final judgment, and Johnson’s appeal was timely filed.

Although the Kentucky courts have not previously addressed the status of prematurely filed new trial motions, courts in other jurisdictions have concluded that new trial motions filed prior to judgment have no effect. See In re Tutorship of Ingraham, 565 So.2d 1012 (La.App., 1990); Jessup v. Newman, 191 Ga.App. 772, 383 S.E.2d 136 (1989); Ruiz v. Ruiz, 104 Cal.App.3d 374,163 Cal.Rptr. 708 (1980); Auto Equity Sales, Inc. v. Superior Court of Santa Clara County, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937 (1962); Jones v. Kay, 110 N.E.2d 33 (Ohio App., 1951); Stone v. Boston, 218 S.W.2d 783 (Mo.App., 1949).

In my opinion, the majority’s interpretation ignores RCr 10.06(l)’s use of the phrase “after the entry of the judgment.” RCr 10.06(1) (emphasis added). This Court did utilize the word “within” when drafting RCr 10.06(1), but it did so to clarify that a motion for new trial on the basis of newly discovered evidence may be brought at any point in the year following the entry of final judgment. A motion filed before a time period set out by rule or statute is no different from a motion filed after a defined time period. Neither is timely filed, and neither is properly before the court. Both are nullities.

The first sentence of RCr 10.06(1) addresses motions for new trial based upon matters arising during the course of the proceedings or trial and states that such motions must be served on the prosecution within five days of the verdict. See Abramson, 9 Kentucky CHminal Practice and Procedure § 32.22 (West 1997). Motions for new trial on the basis of trial errors, if timely filed, stay the time within which an appeal from the judgment may be taken: “[I]f a timely motion has been made for a new trial an appeal from a judgment of conviction must be taken within thirty (30) days after the date of entry of the order denying the motion.” RCr 12.04(3); Adkins v. Commonwealth, Ky., 309 S.W.2d 165 (1958). By contrast, RCr 10.06(2) describes the interaction between motions for new trials based on newly discovered evidence and appellate review of the underlying judgment and contemplates that such a motion would be filed after the entry of judgment:

After a motion for a new trial is filed and if there is an appeal pending, either party may move the appellate court for a stay of the proceedings in the appellate court, whereupon the clerk of the appellate court shall notify the clerk of the trial court that the motion has been filed. The clerk of the trial court shall notify the clerk of the appellate court of the trial court’s ruling on the motion for a new trial.

RCr 10.06; see also RCr 12.04(3) (“[I]n the case of a motion for new trial made later than five (5) days after return of the verdict, the appeal must be from the order overruling or denying the motion .... ” Id.).

To summarize, a defendant may bring a motion for new trial upon a basis other than newly discovered evidence no later than five (5) days after the verdict. If the trial court overrules such a timely filed motion for new trial, a defendant may seek appellate review of the ruling in an appeal from the final judgment. A motion for new trial based upon newly discovered evidence may be filed at any time during the one (1) year following, but not before, the entry of final judgment. If the trial court overrules such -a motion for new trial, any appeal must be taken from the order overruling or denying the motion.

As the trial court ordered that Johnson’s competency-based motion for a new trial be considered filed as of the date of the judgment, the trial court had jurisdiction to enter the May 29, 1998 order denying the motion. Wilson v. Commonwealth, Ky.App., 761 S.W.2d 182, 184 (1988). As Johnson chose not to appeal from this order, it became final thirty (30) days' after entry and Johnson may not now seek its reversal.

I find none of Johnson’s assignments of error with respect to his trial meritorious and I would affirm the conviction, but remand the case to the trial court with instructions for it to conduct a hearing to .determine whether Johnson was competent at the time of his final sentencing. If the trial court determines that Johnson was incompetent at the time of his sentencing, the final judgment should be set aside and further proceedings conducted in accordance with KRS 504.110. If the trial court finds that Johnson was competent at the time of his final sentencing, the trial court- should enter an order, to that effect from which Johnson may seek appellate review.

      . Thirty (30) days, effective January 1, 1999.

      . Thirty (30) days, effective January 1, 1999.

      . As stated supra, the only grounds for a motion for new trial filed later than five days after the return of the verdict is one premised upon newly discovered evidence. The appeal from the order overruling such a motion is limited to whether the new trial should have been granted. No appeal was taken from the order of May 29, 1998 and the issues raised in Appellant's motions of December 4 and 18, 1997 and January 16, 1998 have not been raised on appeal.

      . The reference in RCr 10.06(2) to a stay of appellate proceedings while a trial court rules on a motion for new trial obviously refers to a motion premised upon newly discovered evi-ience filed within one year of the verdict, but after the appeal was filed. See Wilson v. Commonwealth, supra.

        . Without the word "within,” the relevant portion of RCr 10.06(1) would read: "A motion for new trial based upon the ground of newly discovered evidence shall be made [] one (1) year after the entry of the judgment or at a later time if the court for good cause so permits." RCr 10.06(1). Accordingly, it is understandable why "within” was inserted into the rule; otherwise, such a motion could not be filed until one (1) year had passed since entry of the judgment.


author:
      OPINION
     GUIDUGLI, Judge.

text:
    Robert A. HAWKINS and Yvonne Hawkins, Appellants, v. Dr. Philip M. ROSENBLOOM, Appellee.
    No. 1997-CA-002972-MR.
    Court of Appeals of Kentucky.
    Aug. 20, 1999.
    Case Ordered Published by Supreme Court May 10, 2000.
    ,Discretionary Review Denied by Supreme Court May 10, 2000.

      Kenneth H. Baker James S. Scroghan Louisville, KY, for appellants.
    Craig L. Johnson Scott P. Whonsetler Louisville, KY, for appellee.
    BEFORE: EMBERTON, GUIDUGLI and MILLER, Judges.
   OPINION

GUIDUGLI, Judge.

This is an appeal by Robert A. Hawkins and Yvonne Hawkins (Hawkinses) from a judgment order, pursuant to a jury verdict of the Jefferson Circuit Court, which entered judgment for the appellee, Philip Rosenbloom, M.D. (Dr. Rosenbloom), and assessed ah costs against the Hawkinses. We affirm in part, reverse in part, and remand.

On January 28, 1994, Dr. Rosenbloom performed elective gallbladder surgery on Mr. Hawkins at Baptist East Hospital in Louisville, Kentucky. On January 11, 1994, prior to undergoing gallbladder surgery, Mr. Hawkins met with Dr. Rosen-bloom to discuss the general risks of surgery. As a result of this meeting, Dr. Rosenbloom caused to be prepared an office note stating that the general risks of surgery were discussed with Mr. Hawkins. Furthermore, Mr. Hawkins signed an informed consent form that stated his physician discussed with him the general risks of surgery. To remove Mr. Hawkins’ gallbladder, Dr. Rosenbloom used a procedure called laparoscopic cholecystectomy, whereby several small incisions are made in the surgical area, a laparoscope is inserted into one and the gallbladder is removed through the others. Laparascopic cholecystectomy is generally the preferred method of cholecystectomy (removal of gallbladder) as opposed to open cholecys-tectomy, whereby one’s gallbladder is removed through a single standard incision.

Mr. Hawkins was scheduled for release from the hospital on January 30, 1994. However, Mrs. Hawkins discovered drainage around the laparoscopic incisions and the discharge was canceled. Thereafter, Dr. Rosenbloom performed exploratory surgery on Mr. Hawkins and discovered that a 1.5-cm perforation had been cut into Mr. Hawkins’ bowel and that the bowel was leaking fecal material into Mr. Hawkins’ abdomen. On February 4, 1994, Dr. Rosenbloom drained two abscesses due to infection caused by the leaking bowel. Mr. Hawkins remained in the hospital seventeen (17) days and thereafter was released with a full colostomy. On May 12, 1995, Mr. Hawkins underwent a fourth surgery to close the colostomy, which proved unsuccessful. However, the colostomy closed on its own several months later. In April of 1997, Mr. Hawkins underwent a fifth surgery for repair of a double hernia that was related directly to his January 30,1994, colostomy.

The Hawkinses sued Dr. Rosenbloom for lack of informed consent and negligence among other things. The case went to trial and resulted in a jury verdict in favor of Dr. Rosenbloom. The Hawkinses raise three issues on appeal. First, before the trial of this matter, the trial court granted Dr. Rosenbloom’s motion in limine excluding any evidence regarding informed consent at trial. The trial court granted said motion because the Hawkinses did not have an expert witness to testify with regard to the standard of care that an ordinary and careful physician would follow in obtaining informed consent. Furthermore, the trial court refused to instruct the jury on the law of informed consent. Second, the trial court refused to allow the Hawkinses’ attorney to play video excerpts of testimony at trial during closing arguments. Third, during the trial of this matter, the trial court allowed Dr. Rosen-bloom’s attorney to cross-examine the Hawkinses’ expert witness, Dr. Marco Bonta (Dr. Bonta), with a notarized letter from another physician.

With regard to their first argument, the Hawkinses maintain that no expert testimony was needed to establish the standard of care for informed consent. The law of informed consent, KRS 304.40-320, states as follows:

In any action brought for treating, examining, or operating on a claimant wherein the claimant’s informed consent is an element, the claimant’s informed consent shall be deemed to have been given where:
(1) The action of the health care provider in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with the accepted standard of medical or dental practice among members of the profession with similar training and experience; and
(2) A reasonable individual, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedure and medically or dentally acceptable alternative procedures or treatments and substantial risks and hazards inherent on the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures;
(8) In an emergency situation where consent of the patient cannot reasonably be obtained before providing health care services, there is no requirement that a health care provider obtain a previous consent.

Part (2) deals specifically with what a reasonable person should be told before deemed to have been given informed consent. The Hawkinses’ argument on this issue is two-fold. First, they argue that KRS 304.40-820 requires that a physician must meet the standard set out in both parts (1) and (2) of the statute for valid informed consent. Second, they argue that “the question of what a reasonable individual would understand does not require expert testimony.” Therefore, they maintain, the trial court should have allowed them to present the issue of informed consent to the jury without expert testimony because Dr. Rosenbloom did not meet the standard set out under part (2) of the statute.

An action based on lack of informed consent “is in reality one for negligence in failing to conform to a proper professional standard.... ” Holton v. Pfingst, Ky., 534 S.W.2d 786, 788 (1975). As in any medical malpractice case, the general rule is that expert testimony is required to negate informed consent. Keel v. St. Elizabeth Medical Center, Ky., 842 S.W.2d 860, 862 (1992). In Keel, the hospital administered a CT scan that involved injecting a contrast dye into the patient’s system. The patient later developed thrombophlebitis at the site of the injection. The Supreme Court found that expert testimony was not required to establish informed consent in this case because the patient was given absolutely no information whatsoever regarding the risks and hazards of the procedure. Id. In holding that expert testimony was not needed to establish informed consent in this case, the Court stated:

If we are to analogize consent actions to negligence actions, we must also acknowledge that a failure adequately to inform the patient need not be established by expert testimony where the failure is so apparent that layman may easily recognize it or infer it from evidence within the realm of common knowledge.

Id. (citations omitted). Thus, Keel is limited in its application to situations where no information is given to the patient regarding the risks and hazards of the procedure. However, in the case sub judice, we are not presented with the same or even similar circumstances as that in Keel. Mr. Hawkins met with Dr. Rosenbloom on January 11, 1994, to discuss the general risks of gallbladder surgery. During his deposition, Mr. Hawkins did not deny that Dr. Rosenbloom had discussed the general risks of gallbladder surgery with him but instead stated that “I don’t remember that it happened.” However, Mr. Hawkins signed an informed consent form that stated that his physician had discussed the general risks of gallbladder surgery with him. At trial, Mr. Hawkins testified that he signed the consent form but that he did not ask any questions or ask Dr. Rosen-bloom to go over the form with him. Furthermore, as a result of the January 11, 1994, meeting, Dr. Rosenbloom caused to be prepared an office note stating that the general risks of surgery were discussed with Mr. Hawkins. Given these facts, we do not believe that any alleged failure on Dr. Rosenbloom’s part was “so apparent that layman may easily recognize it or infer it from evidence within the realm of common knowledge.” Thus, the trial court did not abuse its discretion by refusing to allow the Hawkinses to present evidence to the jury regarding lack of informed consent without expert testimony.

Next, the Hawkinses argue that the trial court erred by refusing to allow the Hawkinses to play a videotape of portions of testimony at trial during closing arguments. This argument is without merit. The Hawkinses have not presented this Court with any authority requiring a trial judge to allow a party to play a videotape of trial testimony during closing arguments, and we have not discovered any such authority during our research. It is a well settled principle that matters pertaining to closing arguments lie within the discretion of the trial court. Reed v. Craig, Ky., 244 S.W.2d 733 (1951). We do not believe that the trial court abused its discretion by refusing to allow the Hawkinses to play the videotape of trial testimony during closing arguments.

Finally, the Hawkinses argue that the trial court’s decision to allow Dr. Rosen-bloom’s attorney to cross-examine their expert witness, Dr. Bonta, with a notarized letter from Dr. E. Christopher Ellison (Dr. Ellison) was an abuse of discretion and constituted prejudicial error. We must first decide whether the trial court erred in allowing Dr. Rosenbloom’s attorney to cross-examine Dr. Bonta with the letter. If the trial court did err, then we must decide whether such error was harmless or prejudicial to the Hawkinses’ case.

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Kentucky Rules of Evidence (KRE) 801(c). Hearsay is inadmissible during a trial except as provided by KRE or Supreme Court rules. KRE 802. Dr. Ellison’s letter constituted hearsay. However, the trial court allowed Dr.

Ellison’s letter to be read into evidence under a hearsay exception, KRE 803, which states:

The following are not excluded by the hearsay rules, even though the declarant is available as a witness:

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits, (emphasis added).

Dr. Ellison’s notarized letter did not fall within one of the stated exceptions. It certainly did not constitute a published treatise, it did not appear in any journal, nor was it published as a pamphlet. Instead, the letter contained written responses. to questions posed to Dr. Ellison by Dr. Rosenbloom’s counsel or presumably from someone on his behalf. We do not know what material was provided to Dr. Ellison with regard to this case nor do we know exactly what questions were asked of him that caused the genesis of this letter. Further, we do not know the basis for his opinions. Dr. Rosenbloom had not listed him as a witness or, more specifically, an expert witness, and he had not been deposed for the case. He was not present at trial, did not testify, and the contents of the letter were never subject to cross-examination. In fact, Dr. Rosenbloom’s counsel did not reveal the existence of this letter nor produce it to the Hawkinses’ counsel until he sought the trial court’s permission to use the letter to impeach Dr. Bonta at trial.

This letter does not qualify as a “learned treatise” and the trial court erred by allowing Dr. Rosenbloom’s counsel to question Dr. Bonta concerning its contents. Dr. Rosenbloom argues that any error in the trial court’s ruling regarding use of the letter was “harmless error and does not rise to the level of being reversible.” We disagree. The Supreme Court, in Crane v. Commonwealth,. Ky., 726 S.W.2d 802, 307 (1987), recently articulated the test for harmless error:

The test for harmless error is whether there is any reasonable possibility that absent error the verdict would have been different.... The question here is not whether the jury reached the right result regardless of the error, but whether there is a reasonable possibility that the error might have affected the jury’s decision.

We believe it is reasonably possible that cross-examination of Dr. Bonta with the letter from Dr. Ellison affected the jury’s decision. Essentially, Dr. Ellison was allowed to testify without Dr. Rosenbloom’s counsel listing him as an expert witness or providing Civil Rule 26 disclosure. More important, however, is that the trial court allowed Dr. Ellison to testify in court without being subject to cross-examination by the Hawkinses’ counsel. This allowed Dr. Rosenbloom to “pick and choose” amongst statements and qpinions of Dr. Ellison knowing that Dr. Ellison would not be subjected to cross-examination with regard to those statements and opinions. In essence, the jury heard only one side of the story: the side most critical of the Haw-kinses’ case.

In fact, Dr. Ellison’s “testimony” involved one of the central issues of the case: the standard of care employed by Dr. Ro-senbloom in performing the surgery in question. Dr. Rosenbloom’s counsel used Dr. Ellison’s “testimony” to undermine and impeach the credibility of the Haw-kinses’ expert witness. Moreover, Dr. Ro-senbloom’s counsel emphasized the letter in closing arguments compounding the prejudicial effect of the hearsay testimony, all to the Hawkinses’ detriment. We believe that use of the letter to cross-examine Dr. Bonta and in closing arguments constituted prejudicial error.

Accordingly, we affirm in part, reverse in part, and remand this case for proceedings consistent with this opinion.

ALL CONCUR.

      . The letter is addressed to Gayle E. Arnold of the law firm Jacobson, Maynard, Tuschman & Kalur. Wé are not aware of who Ms. Arnold is or whom she may represent in this case.


author: McANULTY, Judge:

text:
    William Keith HYATT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 1999-CA-000661-MR.
    Court of Appeals of Kentucky.
    April 7, 2000.

      William- Keith Hyatt, Lawrenceburg, KY, pro se.
    Albert B. Chandler, III, Attorney General, John E. Zak, Assistant Attorney General, Frankfort, KY, for appellee.
    BEFORE: COMBS, DYCHE and McANULTY, Judges.
   OPINION

McANULTY, Judge:

This is an appeal from the trial court’s order denying appellant’s motion to segregate his criminal records. The question before the Court is whether a dismissal of an indictment pursuant to a pretrial diversion agreement constitutes eligibility for segregation of criminal records under KRS 17.142(l)(b). We conclude that it does and therefore reverse.

William Keith Hyatt was charged with one count of first-degree sexual abuse. The Commonwealth and Hyatt entered into a pretrial diversion agreement in which the Commonwealth agreed to' hold the case in abeyance for two years to permit Hyatt to undergo counseling. The Commonwealth further agreed that at the end of the two years or when the counselor informed the parties that Hyatt was no longer in need of counseling, the Commonwealth would move to dismiss the indictment with prejudice. The record indicates that the indictment was dismissed with prejudice after the two-year period.

Hyatt moved to segregate his criminal records under the indictment, pursuant to KRS 17.142. The trial court held a hearing and then denied the motion, finding that the diversion agreement did not include a provision for segregating-his criminal records.

KRS 17.142(1) provides that law enforcement and public agencies in possession of arrest records shall segregate those records from the records of convicted persons, if the person who is the subject of those records:

(a) Is found innocent of the offense for which the records were made; or
(b) Has had all charges relating to the offense dismissed; or
(c) Has had all charges relating to the offense withdrawn.

KRS 17.142(1).

The statute further provides:

A person who has been arrested and then has come within the purview of subsection (1) of this section may apply to the court in which the case was tried, or in which it would have been tried in the event of a dismissal or withdrawal of charges, for segregation of the records in the case. Upon receipt of such application the court shall forthwith issue an order to all law enforcement agencies in possession of such records to segregate the records in accordance with the provisions of this section.

KRS 17.142(2).

We first observe that “[t]he language of the statute is mandatory in that if application has been made, and (l)(a), (b), or (c) applies to the arrestee, then the court shall issue an order to segregate the criminal records.” York v. Commonwealth, Ky.App., 815 S.W.2d 415, 417 (1991). (Emphasis in original).

The Commonwealth asserts that this statute was not intended to apply to charges which were dismissed as a result of participation in a pretrial diversion program but only to cases where indictments were dismissed due to innocence or lack of evidence. The Commonwealth offers no authority in support of this proposition. We are persuaded that the Commonwealth’s argument is incorrect, based on the statutes regarding the pretrial diversion program.

KRS 533.258 explains the effects of successful completion of the pretrial diversion program:

(1) If the defendant successfully completes the provisions of the pretrial diversion agreement, the charges against the defendant shall be fisted as “dismissed-diverted” and shall not constitute a criminal conviction.
(2) The defendant shall not be required to list this disposition on any application for employment, licensure, or otherwise unless required to do so by federal law.
(3)Pretrial diversion records shall not be introduced as evidence in any court in a civil, criminal, or other matter without the consent of the defendant.

It is clear that the legislature intends for a successful pretrial diversion to, in effect, wipe the slate clean as to those charges. The legislature does not intend for the successful participant to be stigmatized and this is evident in subsection (3) which provides that the pretrial diversion records shall not be introduced in court, without the consent of the participant.

Therefore, in the absence of an express legislative directive to the contrary, we see no reason why a successful pretrial diversion participant is not entitled to qualify under KRS 17.142(l)(b).

Having found that Hyatt qualifies under this statute, and considering the mandatory language as noted in York v. Commonwealth, supra, the order of the Anderson Circuit Court is reversed and this case is remanded for entry of an order granting Hyatt’s motion to segregate criminal records, pursuant to KRS 17.142.

ALL CONCUR.


author: ALBERTA. RIEDERER, Judge.

text:
    James M. THOMAS, Appellant, v. HOLLISTER, INC., Respondent.
    No. WD 56328.
    Missouri Court of Appeals, Western District.
    Aug. 17, 1999.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 23,1999.
    Application for Transfer Sustained Jan. 25, 2000.
    Case Retransferred May 30, 2000.
    Court of Appeals Opinion Readopted June 1, 2000.
    John Jay Benson, Kirksville, for appellant.
    Susan Ford Robertson, Daniel K. Atwill, Columbia, for respondent.

      Before SPINDEN, P.J., EDWIN H. SMITH and RIEDERER, JJ.
   ALBERTA. RIEDERER, Judge.

Appellant James M. Thomas appeals from a final award issued by the Labor and Industrial Relations Commission denying him workers’ compensation benefits for an injury he sustained on the parking lot of his employer. Because we find that the injuries in this case were incurred on the employer’s premises, along the accepted route to work, the injuries arose out of and in the course of employment. The decision of the Commission is reversed and . the award of the AL J is reinstated.

Factual and Procedural Background

On November 2,1990, Appellant, an employee of Respondent Hollister Inc., drove to work and parked his 1983 Chevrolet Blazer in a parking lot owned by Respondent. The parking lot was regularly used by employees of Respondent to park their vehicles while at work. Appellant parked his vehicle and attempted to exit it. He next remembers getting up from the parking lot pavement experiencing a sharp pain in the back of the left side of his head. Appellant lost consciousness for an unknown period of time. He also experienced pain in his ribs and left shoulder. Appellant walked into the plant where his wife and other coworkers were present and then went to the emergency room where he received eight stitches to close the wound on the back of his head.

Appellant made a claim under Chapter 287 — Workers’ Compensation Law. Respondent’s report of the injury indicates: “Employee was getting out of truck in parking lot and foot slipped on running board and he fell and hit his head and injured ribs.” The emergency room records from the day he fell stated that Appellant had complained of a “fall” or “falling off step.” Other medical records and doctor depositions indicated that Appellant slipped or fell off a running board on his vehicle. A hearing was held before an administrative law judge on April 10, 1997 and July 17, 1997. At the hearing, Appellant testified that he could not remember how he was injured. The following colloquy took place:

Q: So as you got out of the vehicle did you use the running board ?
A: No.
Q: And what did you do ?
A: Well, the next thing I remember was getting up off the ground and seeing blood. Now as far as that I don’t remember anything until I got ready to go in the building.
Q: Now is it fair to say that you don’t know why you fell today ? Is that what your telling the judge ?
A: No, I don’t know. I remember getting out of the truck but then other than that I don’t know what happened.
Q: The last thing you remember is getting out of the truck. Is that what your telling the judge today ?
A: (Witness nodded; no verbal response)

Appellant also testified that in a March 1996 deposition, he said that he “stepped out on the running board ... my foot slipped and that’s when all of this come about.” Appellant also testified that he had problems with his memory, that there were no curbs or obstructions where he parked that day and there was no ice, snow or rain at the time of the incident.

On December 28, 1990, Appellant had a seizure while at work. He went into convulsions and lost consciousness. This was his first seizure ever. He was taken to the hospital by ambulance. Appellant had another seizure at home on January 15, 1991, resulting in a hospital admission. After the first seizure, Appellant did not return to work until April 15, 1991, and on January 17, 1992, Appellant had another seizure at work. . Again, he was taken to the hospital by ambulance. Appellant did not return to work after this seizure. Respondent does not dispute that the seizures Appellant suffers from are a result of his fah.

On September 16, 1997, the ALJ issued findings of fact and rulings of law, in which he found that Appellant’s injury arose out of and in the course of Appellant’s employment. Appellant was found to be permanently and totally disabled. The ALJ ordered: 1) Respondent to pay Appellant $820.97 per week from December 29, 1990, through April 14, 1991, and from January 18, 1992, for the rest of his life; 2) The employer-insurer to pay Appellant $24,-870.88 for past medical treatment; 3) Appellant to be awarded “such medical treatment and medicines as may be reasonable and necessary to cure and relieve [Appellant’s] seizure disorder for the remainder of his life;” 4) Appellant to be awarded $1,260.00 for mileage; and 5) Respondent to be credited $16,956.76 for compensation already paid to Appellant.

On October 3, 1997, Respondent filed an application for review with the Labor and Industrial Relations Commission (“Commission”). On August 12, 1998, the Commission entered a final award denying compensation, reversing the decision of the ALJ. This appeal ensued.

Standard of Review

The standard of review in a workers’ compensation case is set out in § 287.495.1, which states in pertinent part:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) That the award was procured by fraud; (3) That the facts found by the commission do not support the award; (4) That there was not sufficient competent evidence in the record to warrant the making of the award.

In this endeavor, we are not bound by the Commission’s conclusions of law or its application of law to the facts. Division of Employment Sec. v. Taney County Dist. R-III, 922 S.W.2d 391, 393 (Mo. banc 1996). We do not defer to the Commission on decisions that are interpretations or applications of law rather than determinations of fact. West v. Posten Constr. Co., 804 S.W.2d 743, 744 (Mo. banc 1991). We are, however, bound by the Commission’s finding of fact. Abel v. Mike Russell’s Standard Service, 924 S.W.2d 502, 503 (Mo. banc 1996). But when the facts are not in dispute, the question of whether an accident arises out of and in the course of employment is a question of law requiring a de novo review. Knipp v. Nordyne, Inc., 969 S.W.2d 236, 238 (Mo.App.1998).

Discussion

All the provisions of the workers’ compensation law “shall be liberally construed with a view to the public welfare.” Section 287.800. This requires that all doubts in workers’ compensation proceedings be resolved in favor of the employee. State ex rel. Lakeman v. Siedlik, 872 S.W.2d 503, 505 (Mo.App.1994). This policy furthers the purpose of enabling claimants to receive compensation. Sanders v. St. Clair Corp., 943 S.W.2d 12, 17 (Mo.App.1997). From its very inception, the workers’ compensation statute was intended to compensate work-related injury, liberally construed, for workers gave up, in exchange, the right to pursue common law suits.

At the outset we note, that although the parties have argued about the 1993 amendment to Section 287.020, it is not applicable to this case, because the accident occurred in 1990. Avery v. City of Columbia, 966 S.W.2d 315, 321 (Mo.App.1998). Thus, cases construing the 1993 amendment are also not applicable here.

The Commission’s Final Award Denying Compensation stated:

We find that it makes no difference whether the claimant slipped on the running board of his vehicle and fell or whether the fall in the parking lot [sic] for a reason he can not explain. In either event the claim is not compensa-ble.

As in Finley, if the claimant fell after slipping on the running board of his vehicle, the injury was not caused by a peculiarity of the employer’s premises. The risk was no greater than that experienced by members of the general public and the injury has no causal connection with employment.

The injury also is not compensable if. it occurred after exiting the vehicle. An accident arises out of the employment relationship only “when there is a [causal] connection between the conditions under which the work is required to be performed and the resulting injury.” Kloppenburg v. Queen Size Shoes, Inc., 704 S.W.2d 234, 236 (Mo. banc 1986) (citations omitted). In Abel v. Mike Russell’s Standard Service, 924 S.W.2d 502, 503 (Mo. banc 1996), the Supreme Court further refined the requirements of the “arising out of’ test: “The condition of the workplace bears a causal connection to the injury only when the condition is unique to the workplace or is a common condition that is exacerbated by the requirements of employment.” Abel at 504.

As in the Abel case, [Appellant] failed to establish that anything about his duties or the workplace caused his injury.

He has not shown that a condition unique to or exacerbated by the workplace existed and contributed to cause his injury.

In other words, the Commission did not find as a fact: (1) that the claimant slipped on the running board, nor did it find as a fact, (2) that the claimant fell on the parking lot. Rather, it applied the law to both fact situations. In either case, it was error for the Commission to deny Appellant workers’ compensation benefits.

The Commission relied on Finley v. St. Louis Smelting & Refining Co., 361 Mo. 142, 233 S.W.2d 725 (1950) in its decision, noting “A case with similar facts is Finley ... in which the Missouri Supreme Court reversed an award of compensation.” However, Finley does not require reversal of the award of compensation in the case at bar. In Finley, the injured employee was leaving work and started his car, which was parked on the employer owned parking lot, “... but the fan was stuck. He raised the hood and gave the fan a whirl with his hand. It started and caught his hand, cutting off his left index finger and a part of his left ring finger.” Id. at 726. After noting that the sole question before them was whether the facts in their case came within the phrase, “arising out of ... his employment,” and that the courts of this state and many other states had construed the phrase, the court in Finley stated that no all embracing definition had yet been found. Id. Every case involving the phrase “arising out of employment” should be decided upon its own particular facts and circumstances and not by reference to some formula. Id. (citing, Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601, 605 (1931)). The Finley court noted that some cases have granted no compensation even though the employee was at the place of employment, while other cases have granted compensation even though the. employee was not engaged in the work of the employer or in any work at all. The court reasoned: “Those cases are not necessarily inconsistent.” Id.

The court also noted:

Compensation to an injured employee would depend upon whether his activities should have been reasonably anticipated and expected by the employer and had become an incident to the employment. (citation omitted).

Id. at 727. Applying the reasoning of Finley to the case at bar would require the Commission to affirm the decision of the ALJ, for under the particular circumstances of this case, the injury arose from activities the employer reasonably expected and that had become an incident to the employment. The employer provided a parking lot, where, it was expected, the employee would park. Getting out of his car in that parking lot had become an incident to his employment.

The Finley court was concerned about the cause of the injury. The court distinguished three cases in which compensation was awarded, by stating that Finley’s “injury was caused by his own automobile over which the company had no control.” Id. at 728. It distinguished another case that awarded compensation by noting that “In the case at bar, the respondent was injured by a defect in his own car.” Id. The court also speaks of “causative agents.” Id. If we apply the foregoing principles to the case at bar, the award of the ALJ would be sustained. Appellant’s injury was not caused by a defect in his car. Nor was the injury caused by the employee’s car. Rather, the activities of the injured employee “should have been reasonably anticipated and expected by the employer and had become an incident to the employment.” Id. at 727. Specifically, the employee was getting out of his car on the employer’s parking lot, which was the usual and customary and expected activity of the employee in arriving at work. There was no intervening cause. Every case “should be decided upon its own particular facts and circumstances and not by reference to some formula.” Id. at 726. And “if the facts in this record show that by the conduct of the parties the activity in which [Appellant] was engaged at the time of the injury had become an incident to his employment, then he is entitled to compensation.” Id. Here, Respondent provided a private parking lot where employees were expected to park their vehicles in while at work. It is reasonable to expect that Appellant would exit his vehicle to proceed to work. By the conduct of the parties, it is apparent that this activity on the employer’s parking lot had become incident to his employment, and the employee is “entitled to compensation.” Id.

Furthermore, the Commission’s reliance on Abel, 924 S.W.2d 502, is misplaced. Abel should not be read as authority to deny compensation in this case. First, the issue of whether an injury “arises out of’ employment, must be decided on a case by case basis according to the facts of each case. Finley, 233 S.W.2d at 726. Whereas Abel is an idiopathic fall case, the record here contains no evidence that this is an idiopathic fall case. In vigorous dissent, Justice Blackmar claims Abel “is out of line with the controlling cases.” Abel, 924 S.W.2d at 506. Joined by two justices, Blackmar noted that Abel “fails to discuss the recent controlling decision of this court.” Id. Other case law indicates the reasoning of Abel is not controlling here. Just two months before Abel was decided, the Court decided Cox v. Tyson, 920 S.W.2d 534 (Mo. banc 1996). Cox was a unanimous decision, with facts similar to our case.

In Cox, an employee slipped on ice and injured his back while returning from a trip to a convenience store during his paid break. The employee was walking along the usual and customary route from the parking lot to the plant where he worked when he fell. The court in Cox stated that generally, accidents occurring on the journey to or from work are not deemed to arise out of and in the course of employment. Id. at 535. An exception to this going to and coming from work rule allows recovery of worker’s compensation benefits if:

(a) the injury-producing accident occurs on premises which are owned or controlled by the employer, or on premises which are not actually owned or controlled by the employer but which have been so appropriated by the employer or so situate, designed and used by the employer and his employees incidental to their work as to make them, for all practical intents and purposes, a part and parcel of the employer’s premises and operation; and
(b) if that portion of such premises is a part of the customary, expressly or impliedly approved, permitted, usual and acceptable route or means employed by workmen to get to and depart from their places of labor and is being used for such purpose at the time of the inquiry.

Id. (citing, Kunce v. Junge Baking Co., 432 S.W.2d 602, 607 (Mo.App.1968)). “Injuries incurred on employer’s premises along the accepted route to or from work arise out of and in the course of employment just as much as do injuries occurring during the performance of work.” Id. (citing, State ex rel. McDonnell Douglas Corp. v. Luten, 679 S.W.2d 278, 280 (Mo. banc 1984)).

A month after Abel, the Eastern District decided Frye v. Viacom, 927 S.W.2d 545 (Mo.App.1996) wherein the court reversed the Commission’s finding of no compensation in a case similar to Cox and to our case, and the Supreme Court denied transfer. In Frye, an employee fell when he stepped on a grating in the sidewalk that was covered with ice. The Eastern District determined that Frye was controlled by the Missouri Supreme Court’s decision in Cox, which was rendered subsequent to the oral arguments in Frye. 927 S.W.2d 545 at 548. Frye was decided immediately after Abel, and the Supreme Court denied transfer.

The Commission should have been guided by the Supreme Court cases of Kunce and Cox. We find that under Kunce and Cox, the facts as found by the Commission do not support the denial of compensation to Appellant.

Under Cox, we must first determine whether “the injury-producing accident occurred on premises which are owned or controlled by the employer, ... designed and used by the employer and his employees incidental to their work as to make them, for all practical intents and purposes, a part and parcel of the employer’s premises and operation.” Cox, 920 S.W.2d at 535-36. Here, both parties agree that Appellant’s accident occurred in a parking lot owned and controlled by Respondent, and that parking in the lot was incidental to their employment with Respondent. Second, we must determine “if that portion of such premises is a part of the customary, expressly or impliedly approved, permitted, usual and acceptable route or means employed by workmen to get to and depart from their places of labor and is being used for such purpose at the time of the inquiry.” Id. Both parties agree that the parking lot was the customary, approved, permitted, usual and acceptable route or means used by employees to get to and depart from work. Appellant was using the parking lot for the purpose of going to work when the accident occurred. This analysis yields the same result whether the Appellant slipped on the running board or slipped on the parking lot, and should result in affirming the award of the ALJ. '

Conclusion

Each case must be decided on its own particular facts. Kunce, 432 S.W.2d at 607; Finley, 233 S.W.2d at 726. And “[e]ach case has turned upon the point of whether, under its particular circumstances, the injury arose from something which had become an incident to the employment.” Finley, 233 S.W.2d at 726 (citing, Wamhoff v. Wagner Electric Corp., 354 Mo. 711, 190 S.W.2d 915, 917 (Mo. banc 1945)). In the case at bar, the Commission found that “The claimant parked his car and attempted to exit it.” Employees coming to work are permitted recovery of workers’ compensation benefits provided (a) the injury producing accident occurs on the premises which are owned or controlled by the employer, and (b) if that portion of the premises is a part of the customary, permitted, usual and acceptable route or means used by the employees to get to and depart from their places of work. Cox, 920 S.W.2d at 534-35; Kunce, 432 S.W.2d at 607. Both parties agree that both of these conditions are met in the case at bar. Injuries incurred on an employer’s premises along the accepted route to or from work arise out of and in the course of employment just as much as do injuries occurring during the performance of work. Cox, 920 S.W.2d at 535. Here, the injuries were incurred on the employer’s premises, along the accepted route to work. Therefore, the injuries arose out of and in the course of employment.

The decision of the Commission is reversed and the award of the ALJ is reinstated.

All concur.

      . All statutory references are to RSMo 1994, unless otherwise indicated.