CORNELL MCQUARTER v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: April 16, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002999-MR
CORNELL MCQUARTER
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN MERSHON, JUDGE
ACTION NO. 93-CR-00815
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, HUDDLESTON AND McANULTY, JUDGES.
GUIDUGLI, JUDGE.
This is a pro se appeal from an order of the
Jefferson Circuit Court denying Cornell McQuarter’s (McQuarter)
RCr 11.42, CR 60.02 and 60.03 motions for relief from a judgment
of conviction for manslaughter in the first degree and wanton
endangerment in the first degree.
We affirm.
On February 2, 1994, the Jefferson Circuit Court
entered a judgment of conviction, pursuant to a jury verdict,
adjudging McQuarter guilty of manslaughter in the first degree
and wanton endangerment in the first degree.
McQuarter was
sentenced to twenty years (20) for manslaughter and one (1) year
for wanton endangerment with the sentences to run concurrently.
McQuarter appealed directly to the Kentucky Supreme Court and
raised the following two issues:
1. The trial court’s refusal to grant the
appellant’s motion for mistrial; and
2. The Commonwealth’s improper comments
during closing arguments served to inflame
and prejudice the jury.
McQuarter did not raise any other issues during his direct
appeal.
More specifically, he did not raise any issue with
regard to jury instructions.
On February 10, 1997, the Kentucky
Supreme Court affirmed and thereafter denied McQuarter’s petition
for a rehearing.
On February 20, 1997, McQuarter filed a RCr 11.42
motion for relief, which the Jefferson Circuit Court denied.
No
timely notice of appeal was filed from the denial of this RCr
11.42 motion.
On October 1, 1997, McQuarter filed a motion for
relief pursuant to CR 60.02 and 60.03, which the Jefferson
Circuit Court denied.
On May 1, 1998, the Kentucky Court of
Appeals granted McQuarter’s motion for a belated appeal.
The
present appeal relates to the Jefferson Circuit Court’s 1997
post-conviction rulings.
Initially, it should be noted that the trial court’s
decision in this case will not be reversed unless there was a
clear abuse of discretion.
“RCr 11.42 supplements CR 60.02 and
provides a post-conviction review procedure which must be
followed if the relief demanded is to be obtained.”
v. Miler, Ky., 416 S.W.2d 358, 360 (1967).
Commonwealth
“Any action under CR
60.02 addresses itself to the sound discretion of the court and
the exercise of that discretion will not be disturbed on appeal
-2-
except for abuse.”
Richardson v. Brunner, Ky., 327 S.W.2d 572,
574 (1959).
Although McQuarter raises seven issues in this appeal,
these seven issues may be broken down into two categories for
purposes of this appeal.
First, McQuarter argues ineffective
assistance of counsel during his first appeal.
Second, McQuarter
argues various insufficiencies with regard to jury instructions
given at his trial.
The purpose of RCr 11.42 and CR 60.02 and 60.03 motions
is to provide a mechanism for collateral attack of a judgment or
sentence by an independent action as opposed to a direct attack.
A thorough description of this rule is found in Commonwealth v.
Basnight, Ky. App., 770 S.W.2d 231, 237 (1989), which held that:
[T]he relief sought by the RCr 11.42 [and
60.02 and 60.03] motion must by nature be a
collateral attack upon the judgment or
sentence, as contrasted with a direct attack.
A direct attack is made within the same
action as a judgment or on its appeal. A
collateral attack will impeach a judgment or
sentence by an independent action, but other
than in the action in which the judgment or
sentence was rendered, or its appeal.
Constitutional grounds must form the basis
upon which relief can be granted by
collateral attack.
Furthermore, in Commonwealth v. Wine, Ky., 694 S.W.2d 689 (1985),
the Court stated that:
...RCr 11.42 is designed to permit a trial
court an opportunity after entry of judgment
to review its judgment and sentence for
constitutional invalidity of the proceedings
prior to judgment or in the sentence and
judgment itself. It is not an appropriate
remedy for a frustrated appeal.
-3-
McQuarter first argues in the present appeal that he
was denied effective assistance of counsel because his attorney
failed to raise the “jury instructions” issues during his first
appeal.
Thus, he claims that he was effectively denied a right
of appeal.
McQuarter’s argument mirrors those made in Hicks v.
Commonwealth, Ky., 825 S.W.2d 280 (1992).
In Hicks, the
defendant was convicted of the murders of two individuals.
The
defendant appealed the conviction, which was thoroughly reviewed
by the Kentucky Supreme Court and affirmed.
Thereafter, the
defendant made a RCr 11.42 motion to vacate claiming that his
counsel was so ineffective in failing to present an issue in the
appeal that the result was the same as if he had been denied a
right of appeal.
The defendant’s motion was denied and he
appealed.
In affirming the appeal, the Kentucky Supreme Court
noted that a defendant whose conviction had not been appealed due
to neglect of counsel could upon motion obtain a belated appeal
or a defendant whose appeal had been dismissed due to neglect of
counsel could upon motion obtain a reinstatement of the appeal.
Id. at 281.
However, the Court held:
We think there is 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. We will not examine anew an appeal
reviewed, considered and decided by this
Court. Id.
-4-
McQuarter appealed his conviction, which the Kentucky
Supreme Court considered and decided on the merits.
Therefore,
we cannot say that the trial court abused its discretion in
denying McQuarter’s RCr 11.42 motion for relief based upon
ineffective assistance of counsel.
McQuarter’s second category of issues regards what he
claims were errors in the jury instructions.
Specifically,
McQuarter makes the following arguments:
1. The jury instruction allowing the
appellant to be found guilty of manslaughter
in the first degree under alternative
theories denied appellant’s right to a
unanimous verdict under Section 7 of the
Kentucky Constitution;
2. The trial court did not give a sufficient
self-defense instruction on any of the
homicide instructions;
3. There was no definition defining selfprotection;
4. There was no opportunity for the jury to
find the appellant innocent of the homicide
offenses for which justification is a
defense;
5. That a reasonable juror could easily have
viewed as mandatory Instruction No. 3 selfprotection as finding appellant guilty; and
6. The trial judge improperly instructed the
jury on self-defense with limitations.
However, we do not reach the merits of McQuarter’s jury
instructions arguments because the law in the Commonwealth is
clear on this point: claimed errors in the jury instructions are
not reviewable upon an RCr 11.42 motion.
Boles v. Commonwealth,
Ky., 406 S.W.2d 853 (1966); Davenport v. Commonwealth, Ky., 390
S.W.2d 662 (1965); Langdon v. Commonwealth, Ky., 384 S.W.2d 508
-5-
(1964).
RCr 11.42, CR 60.02 and 60.03 are not substitutes for
direct appeal.
(1983).
Gross v. Commonwealth, Ky., 648 S.W.2d 853
The proper procedure for reviewing claimed errors in
jury instructions is upon direct appeal and not through a
collateral attack under RCr 11.42, CR 60.02 or 60.03.
Therefore,
the trial court correctly denied appellant’s motions.
For the foregoing reasons, the orders of the Jefferson
Circuit Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Cornell McQuarter
Burgin, KY
A. B. Chandler, III
Attorney General
Kent T. Young
Assistant Attorney General
Frankfort, KY
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
