EDWARDS (MORRIS RICHARD) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 20, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000258-MR
MORRIS RICHARD EDWARDS
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 146646
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND NICKELL, JUDGES; SHAKE,1 SENIOR JUDGE.
NICKELL, JUDGE: Morris Richard Edwards appeals from an order entered by
the Jefferson Circuit Court on January 15, 2010, denying his motion for
reinstatement of appeal proceedings nunc pro tunc. Upon review of the briefs, the
record and the law, we affirm.
1
Senior Judge Ann O'Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
PROCEDURAL HISTORY
In 1972, a jury convicted Edwards of multiple sex crimes against three
victims and sentenced him to concurrent sentences of life imprisonment without
parole on each of two counts of rape2; five years’ imprisonment on each of two
counts of indecent and immoral practices3; up to five years’ imprisonment on
another count of indecent and immoral practices; and five years’ imprisonment on
each of two counts of buggery.4 He filed a direct appeal of the conviction alleging:
(1) the sentences of life imprisonment without parole
constitute cruel and unusual punishment; (2) the trial
court abused its discretion in denying Edwards'
motion to sever the offenses for trial; (3) the failure to
remand for a preliminary examination violated
Edwards' constitutional rights; (4) there was an abuse
of discretion in denying Edwards' motion for a
postponement in order to determine his competency to
stand trial; (5) it was prejudicial error to permit the
husband of one of the victims, in identifying the
pistol, to state that he was a police officer; and finally
(6) KRS 435.105, which denounces indecent and
immoral practices, is void for vagueness and
overbreadth.
Edwards v. Commonwealth, 500 S.W.2d 396, 397 (Ky. 1973). The conviction was
affirmed.
2
KRS 435.090.
3
KRS 435.105.
4
KRS 436.050.
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A motion to vacate the sentence under RCr5 11.42 was filed in July of
1978 alleging: wrongful exclusion of all black jurors; improper comment by the
prosecutor on Edward’s right to remain silent; improper comment that Edwards
had been arrested for multiple rapes in the area; improper comment by a police
officer that Edwards had requested an attorney and refused to speak to police; and,
denial of a fair and impartial trial by the cumulative effect of trial errors. None of
these issues was raised on direct appeal, even though all were preserved by
objection at trial. Relief was denied by the trial court because an RCr 11.42
motion is not a substitute for an appeal. We affirmed the trial court in 1980,
holding that a motion to vacate cannot be used to raise issues that could and should
have been raised on direct appeal. Discretionary review was denied in 1981. In
December of 1983, an executive order was entered commuting Edwards’ two life
sentences without possibility of parole to straight life sentences.
On December 31, 2007, Edwards mailed a pleading styled
“Successive Motion to Vacate, Correct or Set Aside Convictions and Sentences of
Imprisonment Pursuant to RCr 11.42/CR6 60.02(f), CR 60.03” to the Jefferson
Circuit Court Clerk alleging errors in jury selection and instructions, claims of
ineffective assistance of counsel, trial errors, and a claim that his sentence, though
commuted, was still cruel and unusual. The motion, which was amended by post-
5
Kentucky Rules of Criminal Procedure.
6
Kentucky Rules of Civil Procedure.
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conviction counsel in 2008, was denied by the trial court on February 17, 2009, as
successive, untimely and wholly without merit.
On March 12, 2009, the Clerk of the Kentucky Court of Appeals
received a copy of a notice of appeal of the order entered on February 17, 2009.
However, it was not until April 15, 2009, nearly sixty days after entry of the
February 17 order, that the trial court entered the notice of appeal. The circuit
court docket sheet does not reveal the date on which Edwards’ documents were
received or tendered.
We entered an order on April 27, 2009, giving Edwards an
opportunity to show cause why his appeal should not be dismissed for failure to
file a timely notice of appeal. Edwards responded that he had mailed the notice of
appeal to the Jefferson Circuit Court Clerk on March 10, 2009. Finding
insufficient cause from Edwards’ response and the limited record before us, a
motion panel of this Court dismissed the appeal for failure to timely file a notice of
appeal.
Months later, in December of 2009, Edwards mailed a
“Kurtsinger7motion for reinstatement of appeal proceedings nunc pro tunc” to the
Jefferson Circuit Court Clerk which filed the motion on January 26, 2010, after the
grant of in forma pauperis status. The motion for reinstatement offered no
explanation for the delay between his mailing of the notice of appeal to the circuit
7
A reference to Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d
454 (Ky. 2002).
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court and its filing of the notice of appeal, and asked that the trial court enter a
nunc pro tunc order based on this Court’s receipt of a copy of the notice of appeal
on March 12, 2009.
On January 15, 2010, an order was entered by the Jefferson Circuit
Court denying the motion for reinstatement of the appeal noting that Edwards had
allowed four months to pass between dismissal of his appeal by the Court of
Appeals and submission of his motion for reinstatement to the Jefferson Circuit
Court; he had not claimed untimely receipt of the order dismissing the appeal; nor
had he offered any excuse for his four-month delay in seeking relief. It is from this
order that Edwards now appeals.
ANALYSIS
CR 73.02(1)(a) mandates that a “notice of appeal shall be filed within
30 days after the date of notation of service of the judgment or order under Rule
77.04(2).” CR 73.02(2) mandates that “[t]he failure of a party to file timely a
notice of appeal . . . shall result in a dismissal or denial.” Edwards’ notice of
appeal was filed well outside the thirty-day window allowed for such filing by CR
73.02. Furthermore, he has offered no explanation for the untimely filing.
Therefore, the order of the Jefferson Circuit Court denying the motion
for reinstatement of the appeal is AFFIRMED.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Morris Richard Edwards, pro se
LaGrange, Kentucky
Jack Conway
Attorney General of Kentucky
Tami Allen Stetler,
Assistant Attorney General
Frankfort, Kentucky
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