Leonard v. Com.

• Citation: 279 S.W.3d 151
• Decision Date: 22 January 2009
• Docket Number: No. 2007-SC-000531-MR.,2007-SC-000531-MR.
• Parties: Jeffrey LEONARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

279 S.W.3d 151

Jeffrey LEONARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000531-MR.

Supreme Court of Kentucky.

January 22, 2009.

Rehearing Denied April 23, 2009.

Dennis James Burke, Assistant Public Advocate, Department of Public Advocacy, LaGrange, KY, David Michael Barron, Department of Public Advocacy, Frankfort, KY, for Appellant.

Jack Conway, Attorney General, David A. Smith, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, for Appellee.

Opinion of the Court by Justice NOBLE.

Appellant, Jeffrey Leonard, alias James Earl Slaughter,¹ appeals from a denial of his motion under CR 60.02 to be relieved from a 1995 order denying his RCr 11.42 collateral attack motion, several issues in which were held on appeal to be procedurally barred because related issues had been addressed in his direct appeal. He now argues he should be able to reopen the RCr 11.42 proceeding to apply this Court's decision in Martin v. Commonwealth, 207 S.W.3d 1 (2006), which held that issues unsuccessfully appealed under the palpable error rule, RCr 10.26, can give rise to a separate claim of ineffective assistance of counsel, which may be pursued in collateral proceedings. However, because Martin announced a new procedural rule, it is not retroactively applicable, and the circuit court's order is affirmed.

I. Background

Appellant was convicted of murder and robbery and was sentenced to death in 1983. His conviction and sentence were affirmed on direct appeal in 1987, Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky. 1987), and the United States Supreme Court denied certiorari in 1989. Slaughter v. Kentucky, 490 U.S. 1113, 109 S.Ct. 3174, 104 L.Ed.2d 1036 (1989).

Later that same year, Appellant initiated a collateral attack on his conviction by filing an RCr 11.42 motion. As the trial court noted in its subsequent order resolving the RCr 11.42 claims, "[t]he motion languished" for several years thereafter. Eventually, in 1994, the trial court ordered the matter to proceed and held a three-day evidentiary hearing, at which testimony from Appellant's trial counsel and a number of other witnesses was presented. In its subsequent order, the trial court noted that an "impressive display of `mitigating' evidence" had been presented and that "many" of the issues raised in the RCr 11.42 motion "were adjudicated by the direct appeal."² Ultimately, however, the trial court held that Appellant's trial counsel had not been ineffective and thus denied the RCr 11.42 motion.

This Court affirmed the trial court in 1999. Slaughter v. Commonwealth, 96-SC-0049-MR, at *2 (Ky. Sept. 23, 1999) (unpublished). In resolving the appeal, this Court held that many of the issues Appellant raised were procedurally barred, either because they had been raised and rejected on direct appeal (and thus could not be relitigated in the RCr 11.42 context), or because they could and should have been raised on the direct appeal (and thus could not be litigated at all in the RCr 11.42 context).

In 2006, this Court rendered its decision in Martin v. Commonwealth, holding that errors raised for the first time on appeal and found not to be palpable under RCr 10.26 could be the source of subsequent ineffective assistance of trial counsel claims. Within two months of that decision becoming final, Appellant filed a CR 60.02 motion to reopen the RCr 11.42 proceeding so that the merits of the claims previously held to be procedurally barred could be addressed. Appellant argued that Martin removed the procedural bar that had prevented many of his claims from being addressed on their merits in the initial RCr 11.42 proceeding.

The trial court denied the CR 60.02 motion. The court found that the motion had been filed within the reasonable time required by CR 60.02, but nevertheless held that Martin was inapplicable to Appellant because the rule it announced was not to be applied retroactively.

Appellant appealed as a matter of right. Ky. Const. § 115. After the notice of appeal was filed, but before the briefs were submitted, then Governor Ernie Fletcher commuted Appellant's death sentence to life in prison without the possibility of parole.

II. Analysis

A. Jurisdiction

As a preliminary matter, this Court's jurisdiction to hear this matter as a direct appeal must be addressed, since Appellant is no longer sentenced to death. Though neither party has raised or addressed the issue, this Court must determine for itself that jurisdiction is proper. See Hook v. Hook, 563 S.W.2d 716, 717 (Ky.1978) ("Although the question is not raised by the parties or referred to in the briefs, the appellate court should determine for itself whether it is authorized to review the order appealed from."); Hubbard v. Hubbard, 303 Ky. 411, 412, 197 S.W.2d 923, 923 (1946) ("This question is not raised by the record, nor is it referred to in the briefs, but jurisdiction may not be waived, and it can not be conferred by consent of the parties. This court must determine for itself whether it has jurisdiction.").

This Court has exclusive appellate jurisdiction over death penalty matters, even when the appeal involves a collateral attack on a sentence of death. Skaggs v. Commonwealth, 803 S.W.2d 573, 577 (Ky.1990) ("We take this occasion to express our view that the Court of Appeals is without authority to review any matter affecting the imposition of the death sentence."); see also CR 74.02 ("The filing of a notice of appeal in a case in which a death penalty has been imposed will automatically serve to transfer the appeal to the Supreme Court."). However, in a case without a death sentence, any appeal of a collateral attack must proceed initially at the Court of Appeals, even if exclusive jurisdiction over the direct appeal of the case is proper only with this Court. Cardine v. Commonwealth, 102 S.W.3d 927, 928-29 (Ky.2003). This is so even if the defendant has previously been under a death sentence that has been commuted to a lesser sentence at the time the appeal is undertaken, meaning that if a defendant's status with regard to being subject to the death penalty changes, then the proper forum for his appeals also changes. E.g., Stanford v. Commonwealth, 248 S.W.3d 579 (Ky.App.2007) (RCr 11.42 appeal was prosecuted at the Court of Appeals after death sentence had been commuted to life in prison).

However, because Appellant was under a sentence of death when his appeal in this case began, the only appellate state court with jurisdiction to hear his appeals was this Court. The question then is whether the gubernatorial action of commuting Appellant's sentence removes the appeal from this Court's jurisdiction. The answer is simple: This Court will retain jurisdiction over such a case so long as jurisdiction was proper in the first place. This result furthers the interests of judicial economy (the case is already here, after all), is not prohibited by our rules, and complies with this Court's prior cases. See Commonwealth v. Adkins, 29 S.W.3d 793, 795 (Ky.2000) ("There is a presumption against divesting a court of its jurisdiction once it has properly attached, and any doubt is resolved in favor of retaining jurisdiction. Indeed, once a court has acquired jurisdiction, no subsequent error or irregularity will remove that jurisdiction, so that a court may not lose jurisdiction because it makes a mistake in determining either the facts, the law, or both." (citations omitted)).

B. Direct Appeals and Collateral Attacks

Whether certain types of issues can be raised in a collateral attack on a criminal conviction has always been a hard question. The difficulty lies in the need to resolve various competing interests: prevention of duplicative litigation, timely litigation of issues, finality of judgments, the need to bring issues in the proper forum, the right to be heard, and general fairness. In light of these interests, it is clear that some issues must be brought to the attention of the appellate courts in the direct appeal, while others must be presented first to the trial court by way of a collateral attack. There is little if any overlap between the two classes of claims.

These competing interests led to the adoption of the following rule, which has long been the law in Kentucky, concerning collateral attacks: "It is not the purpose of RCr 11.42 to permit a convicted defendant to retry issues which could and should have been raised in the original proceeding, nor those that were raised in the trial court and upon an appeal considered by this court." Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky.1972). This rule has been applied consistently to bar two classes of claims from being brought in collateral attacks: (1) those that could and should have been litigated in the direct appeal; and (2) those that were actually litigated in the direct appeal. See, e.g., Wilson v. Commonwealth, 975 S.W.2d 901 (Ky.1998); Stanford v. Commonwealth, 854 S.W.2d 742, 747 (Ky.1993); Brown v. Commonwealth, 788 S.W.2d 500, 501 (Ky.1990). The first class is a pure procedural bar that aims to have issues raised only in the proper forum. See Slaughter v. Parker, 187 F.Supp.2d 755, 826 (W.D.Ky.2001), overruled in part on other grounds by Slaughter v. Parker, 450 F.3d 224 (6th Cir.2006) ("The Supreme Court relied on a well-established state law ground that issues that may be raised on direct appeal may not first be brought in a post-conviction motion to vacate." (citing Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky.1972))). Technically speaking, the rationale for barring the second class of claims is more akin to collateral estoppel or issue preclusion than to a pure procedural bar, as it depends on the identical issue having been previously decided. It is also sometimes discussed as part of the "law of the case" doctrine. E.g., Wilson v. Commonwealth, 975 S.W.2d 901, 903-04 (Ky.1998).

In the 1990s, however, this procedural-bar rule was expanded to bar...