SCOTT LEE TINSLEY v. COMMONWEALTH OF KENTUCKY
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RENDERED: March 5, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002876-MR
SCOTT LEE TINSLEY
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE WILLIAM E. MCANULTY, JR., JUDGE
ACTION NO. 80-CR-000268
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, HUDDLESTON, AND KNOX, JUDGES.
KNOX, JUDGE: Scott Lee Tinsley appeals from the Jefferson Circuit
Court’s denial of his RCr 11.42 motion.
The history of this case is somewhat involved and
tortuous.
In March 1980, appellant was indicted for the offense
of murder as a result of the shooting death of Jerome Rutledge,
who was president of a Louisville motorcycle club known as The
Outlaws.
In June 1980, a Jefferson Circuit Court jury convicted
appellant of first-degree manslaughter.
fifteen (15) years.
He was sentenced to
Appellant appealed his conviction to the Kentucky Court
of Appeals.
In March 1982, the Court of Appeals entered an
opinion rejecting all of appellant’s claimed grounds for reversal
save one.
This Court ruled the trial court committed error in
refusing to conduct a hearing under Cotton v. Commonwealth, 454
S.W.2d 698 (1970).1
The record reflects the trial court, prior
to the testimony of the Commonwealth’s witness, Gary Allen
(Allen), held a brief conference to consider if the defense could
inquire of Allen whether he had prior felony convictions.2
However, the trial court, apparently based upon the
representation of the Commonwealth that Allen had no prior felony
record, ruled that appellant’s counsel could not question Allen
regarding his prior felony record.
This Court remanded the case to the trial court with
instructions to conduct a hearing for the purpose of determining
if Allen “stood convicted of a prior felony conviction and in
such event was that conviction of such a nature as to be
relevant.”
This Court further ruled that, in the event the trial
1
Cotton permitted the impeachment of witnesses by use of
past felony convictions involving crimes relevant to the issue of
credibility. Cotton was overruled by Commonwealth v. Richardson,
Ky., 674 S.W.2d 515 (1984), to the extent that a witness may be
asked if he has committed a prior felony, and if the witness
answers in the affirmative, no further questioning is permitted.
However, if the witness answers in the negative, the questioner
may impeach by use of all prior felonies.
2
At appellant’s trial, Allen was asked if, during an
interview of him prior to trial, he had indicated to a detective
that he had ever been in the penitentiary. At the hearing before
the trial court, Allen explained that he did not want to sign a
statement the detective wanted him to sign because he didn’t want
to go to the penitentiary. He denied ever having been in the
penitentiary, and maintained the officer was not correct in
saying that he had.
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court determined Allen had not been convicted of a prior felony,
or, if he had been so convicted but his conviction was not
relevant to the issue of credibility, the trial court was to
reinstate appellant’s conviction.
Otherwise, the trial court was
instructed to grant appellant a new trial.
Consistent with this Court’s instructions, the trial
court held a hearing for the purpose of determining if Allen had
been convicted of prior felony offenses.
In that hearing,
appellant was represented by Hon. Bruce Hackett of the local
public defender’s office.
Although appellant was not present for
the hearing, Mr. Hackett informed the court he had corresponded
with appellant both by phone and by letter and had advised him of
his right to be present at the hearing.
Mr. Hackett advised the
court that appellant wished to waive his presence at the hearing.
During the course of the hearing, Allen acknowledged his true
name was Bruce Frederick Lambert.
He testified he had never been
convicted of a felony, but acknowledged he had been convicted of
traffic offenses and a misdemeanor.
He testified he had changed
his name from Lambert to Allen in 1976.
The trial court
thereupon determined Allen had not been convicted of a prior
felony, and in April 1982, reinstated appellant’s conviction.
Appellant did not appeal from that order.
In 1990, appellant filed a motion for a belated appeal
of the trial court’s 1982 order.
This Court ordered that
“appellant shall move the Jefferson Circuit Court for an
evidentiary hearing on the issue of whether he received
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ineffective assistance of counsel or, explicitly or implicitly,
waived his right to appeal.”
In March 1991, the trial court held an evidentiary
hearing, as instructed by this Court, with appellant represented
by Hon. Thomas Ransdell.3
By way of order entered September 23,
1991, the trial court found that Mr. Hackett informed appellant
of the 1982 hearing held by the court, and that appellant had
knowledge of his right to be present, but had voluntarily waived
that right.
The trial court further found that appellant was
adequately represented by Mr. Hackett at the 1982 hearing.
With
respect to appellant’s argument that Mr. Hackett had not filed a
notice of appeal on appellant’s behalf, the trial court noted
that the case had nonetheless been reviewed by the Court of
Appeals which had addressed and resolved all of appellant’s
claims for reversal, and that appellant was therefore not
prejudiced by the failure to file a notice of appeal.
On April 13, 1992, appellant filed a motion to vacate
pursuant to RCr 11.42.
In that motion, appellant raised the
following grounds: (1) Mr. Hackett rendered ineffective assistant
of counsel to him when he failed to notify him about the April
28, 1982, hearing that this Court directed the trial court to
hold; (2) Mr. Hackett failed to adequately question Allen at that
hearing as to whether Allen had any prior felony convictions, and
failed to investigate adequately whether Allen was a convicted
3
The record does not contain a transcription or videotape of
that hearing. However, the trial court’s findings of fact and
conclusions of law reflect that it heard testimony from Allen and
Mr. Hackett.
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felon; (3) Mr. Hackett failed to object to appellant being
resentenced without benefit of a presentence investigation
report; and, (4) Mr. Hackett failed to appeal the trial court’s
1982 decision to reinstate his manslaughter conviction and
sentence.
The record reflects the motion was denied simply by the
trial judge’s April 15, 1992, notation and signature on that
motion.
Appellant appealed the trial judge’s denial of his RCr
11.42 motion.
However, on November 4, 1992, this Court dismissed
the appeal.
Then, in March 1995, appellant filed an RCr 11.42
motion seeking to vacate the trial court’s order of September 23,
1991, which found that appellant had been adequately represented
at the 1982 hearing and had voluntarily absented himself from
that hearing.
As grounds, appellant argued Mr. Ransdell rendered
ineffective assistance of counsel at the March 1991 hearing in
that: (1) he failed to interview and call into court witnesses
who would testify they told appellant that the murder charge had
been dismissed;4 (2) Ransdell failed to secure documentary
evidence which would have supported appellant’s testimony at that
hearing, including Mr. Hackett’s phone records tracing any calls
Hackett might have made to appellant (or the absence of any such
calls, as the case may be) and Hackett’s public defender file
(which appellant anticipated would relate to whether he waived
his right to be at the hearing); and, (3) Ransdell failed to run
4
Appellant maintains those witnesses were court officials
and members of the bar.
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a background check of Allen to determine whether or not he had
previously been convicted of a felony.
By order filed October 28, 1997, the trial court noted
evidence that Allen, as Bruce Frederick Lambert, had been
arrested by the Louisville Police Department in February 1990,
and extradited to Ohio pursuant to a governor’s warrant to face a
charge of felony rape.
According to the records of the Ohio
court, the trial court further noted, that charge was not
prosecuted.
As such, the trial court found there was simply no
probative evidence that Allen had a felony conviction prior to
appellant’s 1980 trial.
Further, the trial court found appellant had admitted
he did, in fact, receive the order vacating and remanding from
the Court of Appeals.
Thus, appellant was imbued with the
knowledge that the trial court was directed to either reinstate
the conviction or grant a new trial, depending upon whether it
found that Allen had or did not have a prior felony conviction,
relevant to the issue of credibility.
As such, appellant had no
reason to believe the charges would ever have been dismissed
pursuant to the Court of Appeals opinion.
It is from this
October 28, 1997, order that appellant now appeals.
When all is said and done, appellant’s efforts to
obtain relief are centered around the contention that he was
prejudiced at his 1980 trial because he was not permitted to
impeach Allen by resort to Allen’s prior felony convictions.
He
faults his attorneys in both the RCr 11.42 proceedings filed by
him for failing to discover that Allen had been convicted of
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felony offenses at the time he testified on behalf of the
Commonwealth during appellant’s trial.
We note that the issue of Mr. Hackett’s representation
was heard in the context of the RCr 11.42 proceeding conducted by
the trial court in March 1991.
As a result of that hearing, the
trial court, in its September 1991 order, found: (1) appellant
voluntarily absented himself from the 1982 hearing conducted in
Jefferson Circuit Court; (2) appellant had not demonstrated that
Allen had a prior felony record at the time Allen testified; and,
(3) Mr. Hackett had not rendered ineffective assistance of
counsel.
Since appellant did not successfully appeal from this
1991 order, as a result, he cannot raise those same matters in a
subsequent RCr 11.42 hearing.
Hence, we deem the issues raised
by the March 1991 proceeding as resolved.
See Lycans v.
Commonwealth, Ky., 511 S.W.2d 232 (1974); Satterly v.
Commonwealth, Ky., 441 S.W.2d 144 (1969).
Thus, since the March 1991 hearing established
appellant did not show that Allen had a prior felony record at
the time Allen testified, Mr. Hackett could not have rendered
ineffective assistance of counsel by failing to discover a felony
record which did not exist.
In appellant’s latest excursion into RCr 11.42
territory, the focus is upon Mr. Ransdell’s assistance to
appellant during the March 1991 RCr 11.42 hearing.
Since the
Hackett matter stands resolved, we confine our attention only to
the issues raised by appellant with respect to Mr. Ransdell’s
assistance in that proceeding.
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We are not able to discern from appellant’s brief why
he alleges the trial court erred in ruling that Mr. Ransdell
effectively assisted him in the 1991 hearing.
Appellant has not
demonstrated in this proceeding, just as he failed to demonstrate
during the 1982 proceeding, that Allen did have a felony record
at the time of his testimony in 1980.
While the argument is made
that Mr. Ransdell failed to independently investigate whether
Allen had such a record, in view of appellant’s own failure to
demonstrate the existence of same, we fail to see how Mr.
Ransdell could have acted ineffectively in failing to disclose it
or in demonstrating Mr. Hackett’s ineffectiveness in failing to
disclose it during the 1982 proceeding.
We do not believe appellant has articulated any reason
why the trial court erred in ruling that Mr. Ransdell effectively
represented appellant in his 1991 RCr 11.42 proceeding.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Scott Lee Tinsley, Pro Se
West Liberty, Kentucky
A. B. Chandler III
Attorney General
Vickie L. Wise
Assistant Attorney General
Frankfort, Kentucky
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