JAMES WESLEY HEADY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
August 13, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002669-MR
JAMES WESLEY HEADY
v.
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 00-00-00549
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOX AND SCHRODER, JUDGES.
JOHNSON, JUDGE: James Wesley Heady (Heady) appeals from an order
of the Whitley Circuit Court entered on October 6, 1997, that
denied, without appointment of counsel or an evidentiary hearing,
Heady’s motion for post-conviction relief under Kentucky Rules of
Criminal Procedure (RCr) 11.42.
We affirm.
On January 19, 1973, Heady and three other men were
indicted for the October 7, 1972, armed robbery of Esty Tompkins
in Corbin, Kentucky.
After Heady and his three co-defendants
were tried by a jury and convicted, he was sentenced by a
judgment entered on February 28, 1973, to prison for 21 years.
Heady was released from prison on parole, but his parole was
revoked, whereby 26 years later he is still serving the
unexpired portion of his prison sentence.
On September 11, 1997, Heady filed a motion to vacate
his sentence pursuant to RCr 11.42.1
On September 11, 1997, the
same day the motion was filed, the circuit court denied the
motion as untimely.
The circuit court erroneously ruled that RCr
11.42(10)(a) and (b) require that “any motion under this rule
shall be filed within three years after the judgment becomes
final, unless the motion alleges and the movant proves either
that the facts upon which the claim is predicated were unknown to
the movant and could not have been ascertained by the exercise of
due diligence, or that the fundamental constitutional right
asserted was not established within the period provided for
herein and has been held to apply retroactively”.2 On October 6,
1997, the circuit court denied Heady’s motion to reconsider the
order denying the RCr 11.42 motion.
This appeal followed.
The Commonwealth concedes in its brief that the circuit
court erroneously applied the three-year limitation period
contained in RCr 11.42(10).
The applicable section of RCr
1
The certificate of service and notice sections of Heady’s
RCr 11.42 motion indicate that his motion was mailed to the clerk
on August 25, 1997.
2
Although the circuit court did not rely on this
additional ground for denying relief, it also stated: “It appears
from the record that the Defendant, James Wesley Heady, was
sentenced to 21 years on February 28, 1973, which is some twentyfour years ago. It would appear that the Defendant completed the
service of his 21 year sentence.” RCr 11.42(1) provides that
relief is only available to “[a] prisoner in custody under
sentence or a defendant on probation, parole or conditional
discharge.” However, as stated earlier in this opinion, because
of the time he was previously paroled Heady was still “in
custody under sentence” when he filed his RCr 11.42 motion.
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11.42(10) states:
“If the judgment becomes final before the
effective date of this rule, the time for filing the motion shall
commence upon the effective date of this rule.”
The Commonwealth
agrees that the effective date of the relevant amendment to RCr
11.42 was October 1, 1994; that Heady’s motion was filed on
September 11, 1997, which was within the three-year period; and
that the trial court’s ruling on this issue was erroneous.
However, the Commonwealth contends that we should
affirm the circuit court under the principle “that a correct
decision will not be disturbed on appeal merely because it was
based on an incorrect ground or reason. . . .”
Haddad v.
Louisville Gas & Electric Co., Ky., 449 S.W.2d 916, 919 (1969).
The Commonwealth’s position is that the trial court should have
denied Heady’s RCr 11.42 motion based upon the doctrine of
laches.
The Commonwealth relies upon the cases of Prater v.
Commonwealth, Ky., 474 S.W.2d 383 (1971), and McKinney v.
Commonwealth, Ky., 445 S.W.2d 874 (1969), for its statement that
“[i]t has long been held that a defendant who slept on his rights
is not given a free ride.”
However, these cases do not stand for
the rule that a defendant cannot bring a RCr 11.42 motion after a
delay of many years.
Rather, the Court in Prater noted as
follows:
In McKinney it was pointed out that at least
to the extent of proof which would be
required to sustain the motion for relief, a
prisoner who has slept on his rights will
bear a heavy burden to affirmatively prove
the facts on which his relief must rest. A
similar reference may be found in Desmond v.
United States (1st Cir. 1964), 333 F.2d 378.
However, in both McKinney and Desmond, an
evidentiary hearing was afforded the
prisoner. In Heflin v. United States, 358
-3-
U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959),
the Supreme Court noted that 28 U.S.C.A.
Section 2255, authorizes a prisoner to seek
postconviction relief “at any time.” In
Heflin the Supreme Court stated that the
expression “at any time” simply means that,
as in habeas corpus, there is no statute of
limitations, no res judicata, and that the
doctrine of laches is inapplicable.
Prater, supra, at 384.
Thus, Prater, which was decided before
RCr 11.42 was amended to specifically allow for the defense of
laches, does not support the Commonwealth’s position.3
However, we do find support for the Commonwealth’s
position in Hayes v. Commonwealth, Ky.App., 837 S.W.2d 902
(1992), a case cited by neither party.
Hayes sought to have his
prison sentence vacated pursuant to RCr 11.42 some 23 years after
his conviction.
Without holding an evidentiary, the circuit
court denied Hayes’ motion.
This Court affirmed the denial of
the RCr 11.42 motion on various grounds including the doctrines
of laches.
The Court stated as follows:
[A] defendant, whether represented by
counsel or indigent, is under a duty to
“bestir himself to some extent to protect his
rights and remedies.” Adams v. Commonwealth,
Ky.App., 551 S.W.2d 249 (1977). Support for
the Adams view can be found in the opinions
of the several federal circuits, i.e., Baxter
v. Estelle, 614 F.2d 1030 (5th Cir. 1980)
cert. den., 449 U.S. 1085, 101 S.Ct. 873, 66
L.Ed.2d 810 (1981); Strahan v. Blackburn, 750
F.2d 438 (5th Cir.1985)(footnote omitted).
Whether it be a rule of court, a statute
or a jurisprudential principle, the rule of
3
RCr 11.42(10) recognizes the defense of laches by
stating: “Nothing in this section shall preclude the
Commonwealth from relying on the defense of laches to bar a
motion upon the ground of unreasonable delay in filing when the
delay has prejudiced the Commonwealth’s opportunity to present
relevant evidence to contradict or impeach the movant’s
evidence.”
-4-
reason or reasonableness must be applied. It
is not unreasonable to note that everything
of which appellant complains was known to him
in 1968 yet he waits until the victim and
witnesses are unavailable and memories
drastically dimmed. True enough, his lawyer
is alive and active but the fact remains that
neither we nor the trial courts are going to
deal with delayed claims such as we have in
this appeal. The post-conviction relief
procedures have been the subject of such
extensive abuse that the Supreme Court of the
United States discussed the application of
“inexcusable neglect” to post-conviction
matters in McCleskey v. Zant, 499 U.S.____,
_____, 111 S.Ct. 1454, 1468, 113 L.Ed.2d 517,
542 (1991). In that opinion Justice Kennedy,
writing for the majority (p.___ of 499 U.S.,
p. 1469 of 111 S.Ct., p. 543 of 113 L.Ed.2d)
pointed out that “[p]erpetual disrespect for
the finality of convictions disparages the
entire criminal justice system” and then
quoted Bator 76 Harv.L.Rev., at 452-453 to
the effect:
A procedural system which permits an
endless repetition of inquiry into facts
and law in a vain search for ultimate
certitude implies a lack of confidence
about the possibilities of justice that
cannot war with the underlying
substantive commands.... There comes a
point where a procedural system which
leaves matters perpetually open no
longer reflects humane concern but
merely anxiety and a desire for
immobility.
Id. at 905-06.
While the circuit court made no findings as to the
prejudice that may have been caused to the Commonwealth due to
the 24-year delay in the case sub judice, we believe that Hayes
stands for the rule that in this type of case a delay of this
length is sufficient to satisfy the doctrine of laches as a
matter of law.
The law places the burden on the movant to “state
specifically the grounds on which the sentence is being
challenged and the facts on which the movant relies in support of
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such grounds.”
RCr 11.42(2); See Brooks v. Commonwealth, Ky.,
447 S.W.2d 614 (1969); and Burton v. Commonwealth, Ky., 394
S.W.2d 933 (1965).
Heady has met the first requirement by specifically
alleging the following three grounds for relief: (1) a conflict
of interest existed in trial counsel’s joint representation of
all four co-defendants based on the allegation that Heady
disclosed to trial counsel during his initial interview that he
was innocent of the armed robbery charge and was merely sitting
in his car at the grocery store waiting for the three codefendants and a 17-year-old juvenile to return from purchasing
food and drinks when they informed him that they had committed
the armed robbery, and that trial counsel when told of these
events, allegedly told Heady “to remain quiet” because if the
jury heard Heady’s story it “would convict the other three men
for sure”; (2) trial counsel was incompetent in allegedly
advising Heady not to testify in his own defense; and (3) trial
counsel allegedly told the jury in his closing argument that all
four defendants, including Heady, were guilty of the armed
robbery.
However, in regard to the facts on which Heady relies
in support of these grounds, we can only assume from his motion
that he was relying upon his own testimony.
While the fact-
finder could certainly choose to accept Heady’s version of
events, therein lies the prejudice caused to the Commonwealth by
the 24-year delay in asserting these claims.
In an effort to
more fully respond to Heady’s brief, the Commonwealth sought and
received an order from this Court that the record be supplemented
with a copy of the trial transcript.
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This Court was advised by
the circuit court clerk that a trial transcript had not been
previously prepared and that there was no information available
at this time that would allow for its preparation some 24 years
later.
Thus, Heady has failed to demonstrate how he would prove
his allegations, other than by his own testimony, and there is no
indication that the testimony of anyone else, such as trial
counsel or his co-defendants, would support his claims.
Heady
has not presented any reason for this 24-year delay, and simply
stated, the delay is unfair to the Commonwealth’s position.
Heady also claims that he was wrongly denied the
appointment of counsel to assist him in pursuing his RCr 11.42
motion.
KRS 31.110 and Commonwealth v. Ivey, Ky., 599 S.W.2d 456
(1980), provide that a “needy person” is entitled to appointed
counsel at state expense in post-conviction proceedings.
However, the Supreme Court in Commonwealth v. Stamps, Ky., 672
S.W.2d 336 (1984), held:
Indeed, after examination of the record,
the trial court correctly concluded that
application for RCr 11.42 relief in this case
is an exercise in futility. Likewise,
remanding this case for appointment of
counsel to search for supplementary grounds
for RCr 11.42 relief is also an exercise in
futility. In such circumstances, the trial
court’s failure to follow the statutory
mandate of KRS 31.110 is harmless error.
Stamps, supra, at 339.
Since we have held as a matter of law
that the RCr 11.42 motion is barred by laches, it only follows
that the circuit court did not err in denying the appointment of
counsel.
Similarly, it was within the discretion of the trial
court to determine whether the facts presented in Heady’s RCr
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11.42 motion required an evidentiary hearing.
An evidentiary
hearing on an RCr 11.42 motion is not required if the record
refutes the movant’s factual allegations or if the movant‘s
unrefuted allegations do not establish a right to relief.
Again,
since Heady’s motion was barred by laches, he was not entitled to
an evidentiary hearing.
Hayes, supra, at 904.
Accordingly, the judgment of the Whitley Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Irvin J. Halbleib
Louisville, KY
Hon. A.B. Chandler, III
Attorney General
Hon. William L. Daniel, II
Asst. Attorney General
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