Com. v. Ivey
| Citation | 599 S.W.2d 456 |
| Parties | COMMONWEALTH of Kentucky, Movant, v. Greg Allen IVEY, Respondent. Greg Allen IVEY, Movant, v. COMMONWEALTH of Kentucky, Respondent. |
| Decision Date | 13 May 1980 |
| Court | United States State Supreme Court — District of Kentucky |
Jack Emory Farley, Public Advocate, C. Thomas Hectus, Asst. Public Advocate, Frankfort, for Greg Allen Ivey.
Robert F. Stephens, Atty. Gen., Elizabeth E. Blackford, Asst. Atty. Gen., Frankfort, for Commonwealth of Kentucky.
Ivey was convicted in the Fayette Circuit Court of burglary, detaining a female, malicious striking and wounding, and armed robbery. Upon appeal, he complained that he was denied a speedy trial and that he was improperly tried as an adult rather than as a juvenile. The convictions were affirmed by the Court of Appeals in Ivey v. Commonwealth, Ky.App., 550 S.W.2d 185 (1977). No motion for discretionary review by this court was made.
The primary question presented is whether the public advocacy statutes require the appointment of counsel upon request of a "needy person" to represent him in RCr 11.42 proceedings. We hold that the legislature has so provided.
Ivey presented the principal issue in this case by way of a CR 60.02 motion to set aside or to amend the order in the RCr 11.42 proceeding on the ground that the circuit court had improperly refused to appoint counsel for Ivey when so requested pursuant to KRS 31.110. The circuit court had ruled it was unnecessary to appoint counsel for Ivey pursuant to RCr 11.42(5) because the pleadings did not raise a material issue of fact. However, the CR 60.02 motion and supporting memorandum raised the question of statutory requirement to provide counsel for needy persons in post-conviction proceedings upon request. To deny counsel to such a person was error.
KRS 31.110 provides:
"(1) A needy person who . . . is being detained under a conviction of a serious crime, is entitled:
(a) To be represented by an attorney to the same extent as a person having his own counsel is so entitled; . . .
(2) A needy person who is entitled to be represented by an attorney under subsection (1) is entitled:
(c) To be represented in any other post-conviction proceedings that the attorney and the needy person considers (sic) appropriate. However, if the counsel appointed in such post-conviction remedy, with the court involved, determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense, there shall be no further right to be represented by counsel under the provisions of this chapter." (emphasis added)
The provision for appointment of counsel found in RCr 11.42(5) was intended to set the minimum standard for post-conviction relief proceedings. The legislature could and did provide for a more generous policy of appointing counsel for indigents, an action which is entirely consistent with its control of the purse strings of the Commonwealth.
RCr 11.42(3) provides: This rule has been consistently interpreted to bar successive motions under 11.42. See, e. g., Butler v. Commonwealth, 473 S.W.2d 108 (1971); Case v. Commonwealth, 467 S.W.2d 367 (1971); Hampton v. Commonwealth, Ky., 454 S.W.2d 672 (1970). Without the assistance of counsel Ivey could be effectively precluded from raising valid grounds by failure to include such grounds at the time of his first motion. This inequity between the needy and the affluent is cured by the statute.
It is our opinion that KRS 31.110 and RCr 11.42 are complementary and clearly provide for appointment of counsel in the situation presented here.
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Fraser v. Com., 1999-SC-0846-DG.
...358 (1971) with respect to criminal appeals.3 See, e.g., Robbins v. Commonwealth, Ky.App., 719 S.W.2d 742 (1986) . In Commonwealth v. Ivey, Ky., 599 S.W.2d 456 (1980), we interpreted KRS 31.110(2)(c) to require the appointment of counsel in an RCr 11.42 proceeding "upon request" of an ind......
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Moore v. Com.
...establishes when the DPA may provide legal services even without judicial appointment." Id. at 456 (overruling Commonwealth v. Ivey, 599 S.W.2d 456, 457 (Ky.1980), insofar as it held that a judge was required to appoint counsel in an RCr 11.42 proceeding "upon request" regardless of the sta......
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Jones v. Bailey, 2017-SC-000203-DG AND 2017-SC-000604-DG
...action which could result in the detainment of a defendant") calls for the appointment of counsel for the indigent. Id. Commonwealth v. Ivey, 599 S.W.2d 456 (Ky. 1980), which preceded and laid the groundwork for Fraser, presented the question of whether KRS 31.110 requires the appointment o......
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Reynolds v. Berry
...is no question that Kentucky law prohibits prisoners from bringing successive motions under Rule 11.42. See, e.g., Commonwealth v. Ivey, 599 S.W.2d 456, 457-58 (Ky.1980). Moreover, as this court stated in Wesselman, "Kentucky's interests in finality of judgments, judicial economy, and permi......