NOT TO BE PUBLISHED

MEMORANDUM OPINION OF THE COURT

Courtney Trowell appeals from an Order of the Court of Appeals denying his petition for a writ of mandamus directing the Jefferson Circuit Court to enter an order vacating his conviction for murder and sentence. Because such use of a writ of mandamus is improper, we affirm the Court of Appeals' denial of Trowell's petition.

In 2005, Trowell was convicted of murder, for which he received a fifty-year sentence. This Court affirmed Trowell's conviction on his appeal as a matter of right. Trowell then filed a Kentucky Rule of Criminal Procedure (RCr) 11.42 motion in the Jefferson Circuit Court alleging ineffective assistance of counsel. The Circuit Court denied the motion without a hearing and the Court of Appeals affirmed. This Court denied discretionary review. On March 28, 2011, Trowell, pro se, petitioned the Court of Appeals for a writ of mandamus directing the Circuit Court to enter an order vacating his conviction and sentence. The Court of Appeals denied Trowell's petition and he now appeals to this Court as a matter of right pursuant to Civil Rule (CR) 76.36(7). Since a request that a court be ordered to vacate a conviction and sentence is an improper use of the writ of mandamus, we affirm the Court of Appeals.

A writ of mandamus is an extraordinary remedy which courts "are—and should be—loath to grant" unless absolutely necessary. Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008). This Court reviews Court of Appeals decisions regarding a petition for a writ of mandamus for abuse of discretion. Mahoney v. McDonald-Burkman, 320 S.W.3d 75, 77 (Ky. 2010). A writ of mandamus operates to compel a court to take action but it "cannot be used to control the result." Hargis v. Swope, 272 Ky. 257, 114 S.W.2d 75, 77 (1938).

Id. (internal citations omitted). See also Humana of Kentucky, Inc. v. NKC Hospitals, Inc., 751 S.W.2d 369, 374 (Ky. 1988); Mahoney, 320 S.W.3d at 79. Thus, for example, in Fannin v. Keck, 296 S.W.2d 226, 227 (Ky. 1956), the former Court of Appeals refused to issue a writ of mandamus to compel the circuit court to enter summary judgment in the petitioner's favor. The Court in Fannin noted the petitioner did not seek the writ of mandamus to compel the judge to act on the motion, but rather "to control [the judge's] discretion and to compel him to grant summary judgment in petitioner's favor. Under these circumstances it is well-settled that this Court has no authority to issue the order requested." Id. Similarly, in Kaufman v. Humphrey, 329 S.W.2d 575, 575 (Ky. 1959), the petitioner requested the Court issue a writ of mandamus requiring and directing the circuit court to enter an order allowing the petitioner to withdraw $47,500.00 from a fund held by the court. Relying on the dictates of Hargis, the Kaufman Court held mandamus was not an appropriate means by which to seek such relief. Id. Especially pertinent to this case, in May v. Conley, 408 S.W.2d 431, 432 (Ky. 1966), the Court denied the petitioner's request for a writ of mandamus to compel the circuit court to vacate his conviction and sentence. The Court therein found such use of a writ of mandamus was improper. Id. "The function of mandamus is not to compel a court to decide a matter in a particular way." Id.

In this case, Trowell does not request a writ of mandamus to compel the circuit court to take action on a subject within its jurisdiction where it has refused or neglected to act. The circuit court here has acted, by providing Trowell with a fair trial, properly sentencing him, and timely ruling on his RCr 11.42 motion.1 Rather, as in Fannin, Kaufman and May, Trowell requests this Court control the discretion of the circuit court by directing it to act in a particular way. As thoroughly explained in Hargis and consistently reiterated in later cases, this is not a permissible use of the writ of mandamus. The Court of Appeals is affirmed.

All sitting. All concur.