Blankenship v. Com.

• Decision Date: 19 August 1977
• Citation: 554 S.W.2d 898
• Parties: Curtis BLANKENSHIP, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 898

554 S.W.2d 898

Curtis BLANKENSHIP, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Aug. 19, 1977.

Thomas R. Lewis, Asst. Public Defender, Jack E. Farley, Public Defender, Frankfort, for appellant.

David M. Whalin, Asst. Atty. Gen., Robert F. Stephens, Atty. Gen., Carl T. Miller Jr., Asst. Atty. Gen., Frankfort, for appellee.

Before HOGGE, PARK and WINTERSHEIMER, JJ.

PARK, Judge.

The appellant, Curtis Blankenship, received a sentence of ten years for robbery by a judgment of the Pike Circuit Court entered May 16, 1975. A timely notice of appeal was filed on behalf of Blankenship, but his appeal was dismissed because the record on appeal was not filed timely as required by RCr 12.58. Blankenship now challenges his judgment of conviction by a motion under RCr 11.42. Blankenship claims that he was denied effective assistance of counsel because of his trial counsel's failure (1) to perfect his original appeal and (2) to raise the issue of his competency to stand trial. Blankenship appeals from an order of the Pike Circuit Court overruling the motion to vacate judgment pursuant to RCr 11.42.

FAILURE TO PERFECT ORIGINAL APPEAL

Blankenship was represented by a court appointed attorney operating under the public defender plan established by Chapter 31 of the Kentucky Revised Statutes. Following "Curtis and I discussed the matter of appeal and I informed him of his appellant rights. He expressed a desire to so appeal. I filed a notice of appeal. I filed a motion to allow him to proceed on appeal in forma pauperis and asked the clerk to prepare the record. There evidently was a misunderstanding between myself and the Public Defender Office in Frankfort as to who was to perfect that record on appeal with the Court of Appeals. * * *

the conviction, Blankenship requested that an appeal be taken on his behalf. At the hearing on the motion to vacate judgment, his trial attorney testified:

"Let me add that the basis of the misunderstanding there was that I was under the impression at the time that the Frankfort office picked up the appeal after I had processed it to that point. We have now agreed on a different method proceeding, but that was the basis of that misunderstanding."

When the trial counsel and the Frankfort office discovered the misunderstanding, efforts were made to salvage the appeal. However, the trial court was of the opinion that it had no jurisdiction to authorize the late filing of the record. The Supreme Court denied a motion to extend the time for filing the record, and the appeal was dismissed.

Under Section 115 of the Kentucky Constitution, every defendant in a criminal case is allowed one appeal as a matter of right. However, Section 115 did not become effective until January 1, 1976. When the judgment sentencing Blankenship was entered on May 16, 1975, there was no constitutional right of appeal in criminal cases. McIntosh v. Commonwealth, Ky., 368 S.W.2d 331 at 335 (1963). Although he had no constitutional right of appeal from the judgment of May 16, 1975, Blankenship did have a right of appeal from that judgment under the provisions of KRS 21.140(1). When a statute authorizes an original appeal as a matter of right, the equal protection clause of the fourteenth amendment to the United States Constitution guarantees that an indigent defendant shall have the assistance of counsel in prosecuting the appeal. McIntosh v. Commonwealth, supra; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). When an indigent defendant is unconstitutionally deprived of his statutory right of appeal because of lack of counsel, the defendant is entitled to a belated appeal upon the filing of a motion to vacate judgment under RCr 11.42. Hammershoy v. Commonwealth, Ky., 398 S.W.2d 883 (1966); Stinnett v. Commonwealth, Ky., 446 S.W.2d 292 (1969); Tipton v. Commonwealth, Ky., 456 S.W.2d 681 (1970); Prater v. Commonwealth, Ky., 476 S.W.2d 833 (1972).

Even though the attorney general concedes that Blankenship is entitled to a belated appeal under the rule laid down in the Hammershoy case, this court must give consideration to the opinion in Perkins v. Commonwealth, Ky., 516 S.W.2d 873 (1974), cert. den. 421 U.S. 971, 95 S.Ct. 1967, 44 L.Ed.2d 462. In that case, an indigent defendant's court appointed counsel failed to file a notice of appeal within the ten day period allowed by RCr 12.54. Approximately two months after a motion for a new trial had been overruled, the trial counsel filed a motion in the circuit court asking that the court reinstate the defendant's right of appeal, alleging that the trial attorney had "neglected" to file a notice of appeal "through inadvertence and oversight." In affirming the order of the trial court overruling the motion for a belated appeal, the court relied heavily upon the principle that appellate review in criminal cases was not a constitutional right. In light of the subsequent adoption of Section 115 of the Kentucky Constitution which does guarantee a criminal defendant one appeal as a matter of right, this basis for the Perkins decision would not apply to judgments entered after January 1, 1976. Because the judgment sentencing Blankenship was entered prior to the effective date of Section 115, the Perkins case is applicable to this appeal.

The opinion in Perkins does not indicate that the defendant ever requested that his attorney take an appeal. Almost two In Perkins, the public defender argued that an indigent defendant was entitled to "error free representation" by counsel on appeal. The public defender further argued that an indigent would be denied the equal protection of the law if his appeal was dismissed because of the "simple negligence" of his appointed counsel in failing to take a procedural step requisite for an appeal. The court in the Perkins case dismissed this argument on the ground that nonindigent and indigent defendants were subject to the same hazard of error by counsel in regard to appellate procedure. That being so, there could be no denial of the equal protection of the law. As the court stated:

months elapsed before anyone indicated to the trial court that an appeal was being sought. In the present case, Blankenship requested that his case be appealed, and his trial counsel did file a timely notice of appeal. From the record, it is clear that Blankenship did everything within his power to take an appeal. The opinion in the Perkins case does not indicate that the defendant did anything to exercise his right of appeal. Compare Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), with Adams v. Commonwealth, Ky.App., 551 S.W.2d 249 (1977). However, the question to be decided is not whether Perkins can be distinguished on its facts. The important question is the application of the principles of the Perkins case to the facts of this case.

But we find no denial of equal protection in the mere fact that appointed counsel is one who is susceptible to the commission of a procedural error.

Even though the court found that there was no denial of equal protection, the court did state:

Of course an indigent is entitled to reasonably competent counsel for appeal purposes * * * .

The question in this case is whether Blankenship received "reasonably competent counsel" to assist in his appeal.

In determining what constitutes "reasonably competent counsel," reference can be made to the standards applicable to civil actions for malpractice against attorneys. In Humboldt Building Association v. Ducker's Exr., 111 Ky. 759 at 763, 23 Ky.L.Rptr. 1073, 64 S.W. 671 at 672-73 (1901), the court stated:

* * * while the rule in England seems to have been that an attorney is liable to his client only in case of gross neglect or gross incompetence, yet in this country a juster rule for the client, and one which the profession can not reasonably find fault with, is that the attorney is liable for the want of such skill, care, and diligence as men of the legal profession commonly possess and exercise in such matters of professional employment. Bank v. Ward, 100 U.S. 195-199, 25 L.Ed. 621. When one seeks and obtains admission to that profession dealing with so many important and involved affairs of men, and holds out his services to be engaged by those standing in need of such, he engages that he possesses to an ordinary extent the technical knowledge commonly possessed by those in the profession, and that he will give to the matters submitted to him such care and attention as is ordinarily given similar affairs by men of his...