Hicks v. Com., 89-SC-000213-TG
| Citation | 825 S.W.2d 280 |
| Decision Date | 12 March 1992 |
| Docket Number | No. 89-SC-000213-TG,89-SC-000213-TG |
| Parties | Glen HICKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court (Kentucky) |
We granted a transfer of this case from the Court of Appeals to consider the question of relief for a defendant whose appeal of a conviction in a criminal case has been decided adversely to him and who contends that he was denied effective assistance of counsel on appeal.
In Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), the United States Supreme Court held that if a state allows an appeal of a criminal conviction, the defendant is entitled to assistance of counsel on the first appeal, and further held that if a dismissal of the appeal results because of the ineffectiveness of counsel, the defendant is entitled to reinstatement of the appeal.
This Court, in Commonwealth v. Wine, Ky., 694 S.W.2d 689 (1985), held that a defendant whose conviction had not been appealed due to neglect of counsel could, upon motion to the court which had jurisdiction to hear the appeal, obtain a belated appeal.
We also held that a defendant whose appeal had been dismissed solely due to neglect of counsel could, upon motion to the court which dismissed the appeal, obtain a reinstatement of the appeal. The rationale of these cases is that a defendant whose appeal has been frustrated or whose appeal has been dismissed due to neglect of counsel, has in fact had no appeal at all.
The remedy in such a case does not lie in RCr. 11.42 which is designed to allow a trial court to review its judgment and sentence for constitutional invalidity of the proceedings prior to judgment or in the sentence and judgment itself. The proper remedy lies in a motion to the court which had jurisdiction to hear the appeal, that it grant a belated appeal or that it reinstate an appeal which has been dismissed. Commonwealth v. Wine, supra.
The movant here has not suffered from a failure to perfect an appeal in his case or from a dismissal of his appeal because his appeal has been completely processed and decided adversely to him. He contends, however, that his counsel was so ineffective in failing to present an issue in the appeal and that the result is the same as if he had been denied a right of appeal. H...
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Wilson v. Parker
...of appellate counsel in an 11.42 post-conviction motion and should instead seek to reopen the original appeal. See Hicks v. Commonwealth, 825 S.W.2d 280 (Ky. 1992); Commonwealth v. Wine, 694 S.W.2d 689, 694-95 (Ky.1985). Thus, when an appeal is dismissed or defaulted due to ineffective assi......
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McQueen v. Scroggy
...The Kentucky Supreme Court denied the petition to reinstate the appeal on August 28, 1992, based on the final opinion in Hicks v. Commonwealth, 825 S.W.2d 280 (1992). The Kentucky Supreme Court then denied McQueen's petition for rehearing on October 20, 1992. The United States Supreme Court......
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Pollini v. Robey
...conviction was not appealed due to counsel's neglect. Boykin v. Webb , 541 F.3d 638, 647–48 (6th Cir. 2008) (citing Hicks v. Commonwealth , 825 S.W.2d 280, 281 (Ky. 1992) ). Accordingly, the Kentucky Court of Appeals held that Pollini's ineffective assistance of appellate counsel claim was ......
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Parrish v. Com., No. 2006-SC-000592-MR.
...which a merit s brief is filed (as in this case) from those in which no brief is filed (as in Evitts and Smith). See Hicks v. Commonwealth, 825 S.W.2d 280, 281 (Ky.1992) ("We think there is a substantial difference in the situation of a convicted defendant for whom no appeal was even taken ......