Moore v. Com.

• Decision Date: 18 May 2006
• Docket Number: No. 2004-SC-0550-DG.,No. 2004-SC-0552-DG.,2004-SC-0550-DG.,2004-SC-0552-DG.
• Parties: Steven MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Douglas Hawkins, Appellant, v. Commonwealth of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

199 S.W.3d 132

Steven MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Douglas Hawkins, Appellant, v. Commonwealth of Kentucky, Appellee.

No. 2004-SC-0550-DG.

No. 2004-SC-0552-DG.

Supreme Court of Kentucky.

May 18, 2006.

Rehearing Denied September 21, 2006.

Margaret Foley Case, Appeals Branch Manager, Joseph Ray Myers, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant Steven Moore (2004-SC-0550-DG).

Gregory D. Stumbo, Attorney General, George G. Seelig, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, James C. Shackelford, Assistant Attorney General, Consumer Protection Division, Frankfort, Counsel for Appellee Commonwealth of Kentucky (2004-SC-0550-DG).

Dennis James Burke, Richard E. Neal, Department of Public Advocacy, Frankfort, Counsel for Appellant Douglas Hawkins (2004-SC-0552-DG).

Gregory D. Stumbo, Attorney General, Michael Harned, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee Commonwealth of Kentucky (2004-SC-0552-DG).

COOPER, Justice.

Because these two appeals present the same two principal issues in different factual contexts, we address them in a single opinion. The principal issues are whether an appellate court may permit a criminal defendant to file a belated appeal from the denial of a collateral attack against a conviction or sentence and, if so, under what circumstances it may do so. No. 2004-SC-0550-DG presents the additional issue of the effect of a mistaken notation on the clerk's docket with respect to the manner of service of notice of entry.

I. NO. 2004-SC-0550-DG.

On October 26, 1998, Steven Moore pled guilty in the Daviess Circuit Court to three counts of rape in the second degree, three counts of sodomy in the second degree, two counts of wanton endangerment in the first degree, and one count of escape in the second degree, for which he was sentenced to a total of ten years in prison. Final judgment was entered on December 4, 1998.

On December 5, 2001, Moore filed a pro se RCr 11.42 motion to vacate his pleas and sentences on grounds of ineffective assistance of counsel, alleging that at the time he entered his pleas he was under the influence of Melleril, a psychotropic medication, which rendered his pleas involuntary; and that, on advice of counsel, he lied to the trial court about having ingested any such medication. In addition to the RCr 11.42 motion, Moore filed a motion to proceed in forma pauperis and a motion for appointment of counsel. In an opinion and order entered on January 24, 2002, the trial court overruled all of the motions without an evidentiary hearing. Specifically, the trial court quoted Appellant's sworn testimony from the transcript of his Boykin hearing, Boykin v. Alabama, 395 U.S. 238, 240-41, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969), that he had, indeed, ingested Melleril that morning but that his mind was clear. The trial court further noted that Appellant had filed his motion outside the three-year period of limitations prescribed by RCr 11.42(10).¹

On May 2, 2002, Moore filed a notice of appeal from the order overruling his post-conviction motions, as well as a designation of record, a motion to proceed in forma pauperis on appeal, and a motion for appointment of counsel. On May 13, 2002, the trial court granted the motion to proceed in forma pauperis and appointed the Department of Public Advocacy ("DPA") to represent Moore on appeal. On June 3, 2002, the Court of Appeals entered an order requiring Moore to show cause why his appeal should not be dismissed on grounds that it was not timely filed. RCr 12.04(3) (notice of appeal to be filed within 30 days after date of entry of judgment or order from which taken). Receiving no response to the show-cause order, the Court of Appeals dismissed the appeal on August 15, 2002. Moore filed a motion for reconsideration on August 26, 2002. CR 76.38(2). The motion was denied by an order of March 6, 2003, which also contained the notation: "This Court suggests that appellant file a motion for belated appeal."

On April 8, 2003, Moore filed a motion for belated appeal, stating that he "erroneously believed that an appeal was automatic from the denial of his 11.42 motion and that he did not understand until a later conversation with inmate legal aid, whereupon he immediately tendered a notice of appeal." On April 21, 2004, the Court of Appeals denied the motion for belated appeal on grounds that "appeals from collateral matters, such as motions for RCr 11.42 relief, do not fall within the criteria for belated appeals set out in Commonwealth v. Wine, Ky., 694 S.W.2d 689 (1985)." On June 18, 2004, the Court of Appeals overruled a motion to reconsider the April 21, 2004, order, citing Merrick v. Commonwealth, 132 S.W.3d 220 (Ky.App. 2004).

II. NO. 2004-SC-0552-DG.

On September 4, 1997, a Wolfe Circuit Court jury convicted Appellant, Douglas Hawkins, of murder, for which he was sentenced to twenty years in prison. On June 17, 1999, this Court affirmed both his conviction and sentence. On August 1, 2001, Hawkins filed a pro se RCr 11.42 motion to vacate his judgment and sentence on grounds of ineffective assistance of counsel, and a motion for appointment of counsel and an evidentiary hearing. The trial court appointed the DPA to represent Hawkins and held an evidentiary hearing on the RCr 11.42 motion. On May 8, 2003, the trial court entered an opinion and order overruling the RCr 11.42 motion. Hawkins directed his counsel to file an appeal from that order. On May 23, 2003, counsel attempted to file a notice of appeal by placing it in the United States mail, but mistakenly addressed the notice to the Breathitt Circuit Clerk instead of to the Wolfe Circuit Clerk. Before the mistake could be corrected, the time for filing the appeal had expired. On July 7, 2003, Hawkins filed a motion in the Court of Appeals for permission to file a belated appeal. On February 10, 2004, the Court of Appeals, as in No. 2004-SC-0550-DG, denied the motion on grounds that "appeals from collateral proceedings do not fall within the criteria for belated appeals set out in Commonwealth v. Wine, Ky., 694 S.W.2d 689 (1985)." On June 17, 2004, also as in No. 2004-SC-0550-DG, the Court of Appeals overruled Hawkins's motion for reconsideration, citing Merrick v. Commonwealth, 132 S.W.3d 220 (Ky.App. 2004).

III. CONSTITUTIONAL RIGHT TO COUNSEL AND APPEAL.

Although a state is not obliged to provide any appeal at all for persons convicted of criminal offenses, McKane v. Durston, 153 U.S. 684, 688, 14 S.Ct. 913, 915, 38 L.Ed. 867 (1894), if a state does provide for an appeal, it must afford the same rights to indigents as are afforded to other appellants, Griffin v. Illinois, 351 U.S. 12, 17, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956), including the right to counsel. Douglas v. California, 372 U.S. 353, 356, 83 S.Ct. 814, 816, 9 L.Ed.2d 811 (1963). In Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), the U.S. Supreme Court held that the right to counsel on appeal includes the right to effective assistance of counsel. Id. at 396-97, 105 S.Ct. at 836-37 (affirming issuance of writ of habeas corpus in Kentucky case where the first appeal had been dismissed because of counsel's failure to file statement of appeal as then required by Ky. R.App. P. 1.090).

There is also no constitutional requirement that a state provide relief from conviction or sentence by way of collateral attack, United States v. MacCollom, 426 U.S. 317, 323, 96 S.Ct. 2086, 2090-91, 48 L.Ed.2d 666 (1976), though if a state does provide for such relief, it cannot deny a defendant full access to that relief, including the right to appeal, solely because the defendant is indigent. Lane v. Brown, 372 U.S. 477, 484-85, 83 S.Ct. 768, 773, 9 L.Ed.2d 892 (1963) (cost of transcripts to enable appeal from denial of writ of error coram nobis); Smith v. Bennett, 365 U.S. 708, 712-14, 81 S.Ct. 895, 897-98, 6 L.Ed.2d 39 (1961) (filing fee to file petition for writ of habeas corpus). However, both Douglas and Evitts pointed out that the constitutional right to counsel, and, concomitantly, to effective assistance of counsel, is limited to a first direct appeal from a judgment of conviction and not to discretionary appeals or appeals from collateral attacks. Douglas, 372 U.S. at 356-57, 83 S.Ct. at 816; Evitts, 469 U.S. at 396 n. 7, 105 S.Ct. at 836 n. 7. See also Murray v. Giarratano, 492 U.S. 1, 8, 109 S.Ct. 2765, 2769, 106 L.Ed.2d 1 (1989) (no constitutional right to counsel to pursue collateral attack); Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) (same); Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 2445, 41 L.Ed.2d 341 (1974) (no constitutional right to counsel to pursue discretionary review or writ of certiorari). The articulated rationale behind the distinction between direct first appeals and discretionary appeals or appeals from collateral attacks is that by the time a criminal defendant files a motion for discretionary review or a collateral attack, the defendant will have a transcript or other record of trial proceedings, access to briefs filed in the first appeal, and an opinion of an appellate court explaining the issues raised and decided on the first appeal. These materials, plus whatever submissions the movant provides pro se, will usually provide the court with a basis for ruling on the discretionary motion or collateral attack. Ross, 417 U.S. at 615, 94 S.Ct. at 2446.

The concepts of a belated appeal and/or a reinstated appeal arose in response to the U.S. Supreme Court's holdings in Douglas and Evitts. The issue then became how and where relief from a lost appeal due to ineffective assistance of counsel should be granted, i.e., by motion in the court with appellate jurisdiction over the case or by a separate RCr 11.42 motion in the trial court?

In...