Hollon v. Commonwealth of Ky., No. 2008–SC–000618–DG.

• Decision Date: 18 November 2010
• Docket Number: No. 2008–SC–000618–DG.
• Citation: 334 S.W.3d 431
• Parties: Robert HOLLON, Appellant,v.COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

334 S.W.3d 431

Robert HOLLON, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2008–SC–000618–DG.

Supreme Court of Kentucky.

Nov. 18, 2010.As Modified on Denial of Rehearing

April 21, 2011.

Dennis James Burke, Assistant Public Advocate, Department of Public Advocacy, LaGrange, KY, Amy Robinson Staples, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.Jack Conway, Attorney General of Kentucky, Perry Thomas Ryan, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.Opinion of the Court by Justice ABRAMSON.

In 1996, a Franklin Circuit Court jury found Robert Hollon guilty of the aggravated murder of Robbin White. In accord with the jury's recommendation, the trial court sentenced Hollon to life in prison without the possibility of parole for twenty-five years. Hollon appealed his conviction and sentence to this Court, and we affirmed in an unpublished Opinion.¹ Dissatisfied with the performance of both his trial and appellate attorneys Hollon, proceeding pro se in 2000, filed a Kentucky Rule of Criminal Procedure ( RCr) 11.42 motion in the trial court alleging, among other things, that appellate counsel had rendered ineffective assistance by failing adequately to demonstrate the trial court's error in admitting into evidence Hollon's confession. The motion was subsequently supplemented, both by Hollon and by appointed counsel, to add allegations that appellate counsel failed to raise a due-process challenge to the Commonwealth's use of the burglary aggravator, and failed to make references to the record supportive of Hollon's contention that no burglary had occurred. In April 2007, the Franklin Circuit Court denied Hollon's motion, finding in particular that Hollon's appellate counsel had performed adequately.

Hollon appealed that determination to the Court of Appeals which, without reaching the merits of Hollon's ineffective assistance of appellate counsel claim, affirmed. Noting this Court's policy, first announced in Hicks v. Commonwealth, 825 S.W.2d 280 (Ky.1992), refusing to recognize ineffective assistance of appellate counsel (IAAC) claims in cases that have been decided upon a merits review, the Court of Appeals panel ruled that Hollon's IAAC claim was properly dismissed because it was not cognizable by the trial court. The panel nevertheless joined other panels of our Court of Appeals ² and at least one panel of the United States Court of Appeals for the Sixth Circuit ³ in urging us to reconsider our Hicks policy as incompatible with, or at least as out of harmony with, United States Supreme Court precedent.

We granted Hollon's motion for discretionary review to reexamine whether IAAC claims may be prosecuted in the Commonwealth and, if so, how such claims shall be pursued. Today we conclude that our courts should address such claims and that generally the proper avenue for asserting them will be the one Hollon chose: a motion pursuant to RCr 11.42 to vacate or set aside the underlying judgment.

ANALYSIS

I. The Right to the Effective Assistance of Appellate Counsel Extends Beyond Counsel's Mere Filing of a Merits Brief.

As Hollon correctly notes, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and through it the Sixth Amendment, entitle criminal defendants to the effective assistance of counsel not only at trial, but during a first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). See generally Mason v. Hanks, 97 F.3d 887 (7th Cir.1996). In Evitts, a case from Kentucky, Keith Lucey was convicted of trafficking in a controlled substance, and his retained attorney filed a timely notice of appeal to the Court of Appeals. The attorney failed, however, to file the then-mandatory statement of appeal, and consequently our Court of Appeals granted the Commonwealth's motion to dismiss the appeal. Through habeas review, the case found its way to the United States Supreme Court, and before that Court it was conceded that defense counsel's failure to file the mandatory form constituted ineffective assistance. The Supreme Court held that the Kentucky Court of Appeals' refusal to consider the merits of Lucey's appeal solely on the ground of counsel's deficient performance denied Lucey the due process of law.

A few years later, this Court was confronted with an IAAC claim somewhat different from the one the United States Supreme Court had addressed in Evitts. In Hicks v. Commonwealth, supra, following his direct appeal, the merits of which were considered and decided adversely to him, Glen Hicks moved for relief pursuant to RCr 11.42, and alleged that appellate counsel was ineffective because he had failed to raise various issues for consideration on direct appeal. The trial court denied relief, and on appeal to this Court we acknowledged Evitts, but read it narrowly as requiring only the reinstatement of an appeal which had been dismissed as a result of counsel's ineffectiveness. Hicks's claim did not implicate that requirement. Moreover, this Court found

a substantial difference in the situation of a convicted defendant for whom no appeal was even taken or one whose appeal was dismissed solely due to neglect of counsel and the situation of a defendant whose appeal was completely processed and the judgment affirmed. In the first case, there was never any consideration of the merits of any substantive issue by the appellate court. In the latter case, the appellate court has considered and decided the merits of the appeal.

Hicks, 825 S.W.2d at 281. The Hicks Court concluded that we would not “examine anew an appeal reviewed, considered and decided by this Court.” Id. Since then, we have refused to recognize the Hicks-type of IAAC claim and have upheld Hicks's narrow reading of Evitts several times. Upon further consideration of Evitts and its progeny in state and federal courts, we can no longer subscribe to this overly limited view of the mandate of Evitts v. Lucey,

Technically, perhaps, the United States Supreme Court's holding in Evitts can be limited to the facts then before the Court, but the Court's explanation of its ruling simply does not support such a minimalist reading. As the United States Supreme Court explained,

In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, with its consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal appellant must face an adversary proceeding that—like a trial—is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant—like an unrepresented defendant at trial—is unable to protect the vital interests at stake. To be sure, respondent did have nominal representation when he brought his appeal. But nominal representation on an appeal as of right—like nominal representation at trial—does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all.

469 U.S. at 396, 105 S.Ct. 830. There is no distinction implicit in this explanation between, on the one hand, counsel's procedural missteps that result in dismissal of an appeal and, on the other hand, deficiencies rendering a potentially favorable appeal substantively meritless. Indeed, the Court noted that while Lucey's case involved procedural mistakes, other cases dealing with the right to counsel—trial or appellate—had focused on the defendant's need for substantive assistance, for “ ‘counsel's examination into the record, research of the law, and marshalling of arguments on [the client's] behalf.’ ” Id. at 394 n. 6, 105 S.Ct. 830 (quoting Douglas v. California, 372 U.S. 353, 358, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), brackets in original).

The Supreme Court elaborated upon a defendant's right to the effective assistance of appellate counsel in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), a case in which the defendant's appeal had been dismissed as frivolous. The Court reiterated that on a first appeal as of right, “ ‘[d]ue process ... [requires] States ... to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal.’ ” 528 U.S. at 277, 120 S.Ct. 746 (quoting from Evitts, 469 U.S. at 405, 105 S.Ct. 830 (brackets and ellipses in original)). That requirement, the Court explained, citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), does not prohibit the States from dismissing frivolous appeals. However, it does prohibit such a dismissal except where a defendant has had the assistance of counsel to find non-frivolous grounds for appeal, and then, upon counsel's reasoned conclusion that no such grounds exist, the appellate court has independently determined that counsel's conclusion is warranted.

Technically, therefore, Smith, like Evitts, addresses the right to counsel to ensure that an appeal of right is not improperly dismissed so as to frustrate an adjudication on its merits. Relying on this technical distinction between cases, such as Smith and Evitts, in which no merits brief was filed, and cases in which a merits brief has been filed and ruled upon, we have upheld our Hicks ruling even in the wake of Smith. See, e.g., Parrish v. Commonwealth, 272 S.W.3d 161 (Ky.2008). Smith, however, even more than Evitts, strains that distinction beyond what it can reasonably bear. Smith held that defendants pursuing a first appeal as of right are entitled to counsel's effective assistance in identifying non-frivolous grounds for appeal as well as counsel's effective assistance in briefing and otherwise presenting an appeal based on those grounds. The standard for evaluating claims that appellate counsel was ineffective, the Court held, is the familiar ...