GRAY (ALLEN) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001893-MR
ALLEN GRAY1
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 03-CR-00469
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE: CAPERTON, DIXON, AND TAYLOR, JUDGES.
PER CURIAM: Appellant, Allen Gray, appeals pro se from an order of the
Fayette Circuit Court denying him post-conviction relief pursuant to RCr 11.42.
Because we conclude that this is an interlocutory appeal, we dismiss the matter.
In May 2005, Appellant was convicted in the Fayette Circuit Court of
wanton murder, three counts of fourth-degree assault, and tampering with physical
1
Appellant’s last name is spelled “Grey” in some of the circuit court proceedings. Appellant’s
notice of appeal has his last name as “Gray,” and we will therefore use that spelling in this
opinion.
evidence. He was sentenced to a total of thirty-five years’ imprisonment. On
direct appeal, the Kentucky Supreme Court affirmed the convictions and sentence.
Grey v. Commonwealth, 2005-SC-0000590-MR (May 24, 2007).
On December 20, 2007, Appellant filed a pro se RCr 11.42 motion
alleging ineffective assistance of counsel. He also filed motions for appointment
of counsel and an evidentiary hearing. On September 5, 2008, the trial court
denied Appellant’s RCr 11.42 motion without an evidentiary hearing, finding that
all issues could be resolved from the record. Appellant’s counsel thereafter filed a
CR 59 motion to alter, amend or vacate the order denying post-conviction relief.
There is no order of record ruling upon Appellant’s CR 59 motion. Nevertheless,
Appellant filed a notice of appeal in this Court on October 3, 2008.
CR 73.02(1)(e)2 provides, in pertinent part:
The running of the time for appeal is terminated by
a timely motion pursuant to any of the Rules hereinafter
enumerated, and the full time for appeal fixed in this
Rule commences to run upon entry and service under
Rule 77.04(2) of an order granting or denying a motion
under Rules 59.02, 52.02, or 59, except when a new trial
is granted under Rule 59.
Effective January 1, 2007, RCr 12.02 was amended to specify that CR 73.02(1)(e)
applies to criminal cases, thereby suspending the running for the time for appeal
upon the filing of a CR 59.05 motion. Thus, Appellant’s CR 59.05 motion, filed
within ten days of the order denying his RCr 11.42 motion, suspended the running
2
We note that CR 73.02(1)(e) was amended effective April 1, 2009, to provide that a premature
notice of appeal is suspended by filing of, among others, a CR 59.05 motion, and becomes
effective when the motion is ruled upon. We view this amendment as inapplicable to
Appellant’s case.
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of his time for appeal. Furthermore, our Supreme Court “has made it clear that a
ruling on a post-judgment motion is necessary to achieve finality, and
procedurally, a CR 59.05 motion stays finality until the motion is ruled upon.”
Guillion v. Guillion, 163 S.W.3d 888, 891 (Ky. 2005) (Citing Kurtsinger v. Board
of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454 (Ky. 2002)).
Accordingly, because the record contains no order granting or denying
Appellant’s CR 59.05 motion, the order of the Fayette Circuit Court denying
Appellant RCr 11.42 relief is not final and thus not ripe for appellate review. As
such, the instant appeal is dismissed.
ALL CONCUR.
ENTERED: September 4, 2009
/s/ Donna L. Dixon
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Allen Gray, Pro Se
Eddyville, Kentucky
Jack Conway
Attorney General of Kentucky
Christian K. R. Miller
Assistant Attorney General
Frankfort, Kentucky
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