ROBERT HOLLON V. COMMONWEALTH OF KENTUCKY
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2008-SC-000618-DG
ROBERT HOLLON
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2007-CA-001053-MR
FRANKLIN CIRCUIT COURT NO . 94-CR-00086
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE ABRAMSON
REVERSING AND REMANDING
In 1996, a Franklin Circuit Court jury found Robert Hollon guilty of the
aggravated murder of Robbin White. In accord with the jury's
recommendation, the trial court sentenced Hollon to life in prison without the
possibility of parole for twenty-five years. Hollon appealed his conviction and
sentence to this Court, and we affirmed in an unpublished Opinion .'
Dissatisfied with the performance of both his trial and appellate attorneys
Hollon, proceeding pro se in 2000, filed a Kentucky Rule of Criminal Procedure
(RCr) 11 .42 motion in the trial court alleging, among other things, that
appellate counsel had rendered ineffective assistance by failing adequately to
1 Hollon v. Commonwealth, 1996-SC-000382-MR (Ky. Dec. 17, 1998) .
demonstrate the trial court's error in admitting into evidence Hollon's
confession . . The motion was subsequently supplemented, both by Hollon and
by appointed counsel, to add allegations that appellate counsel failed to raise a
due-process challenge to the Commonwealth's use of the burglary aggravator,
and failed to make references to the record supportive of Hollon's contention
that no burglary had occurred. In April 2007, the Franklin Circuit Court
denied Hollon's motion, finding in particular that Hollon's appellate counsel
had performed adequately .
Hollon appealed that determination to the Court of Appeals which,
without reaching the merits of Hollon's ineffective assistance of appellate
counsel claim, affirmed . Noting this Court's policy, first announced in Hicks v.
Commonwealth, 825 S.W .2d 280 (Ky. 1992), refusing to recognize ineffective
assistance of appellate counsel (IAAC) claims in cases that have been decided
upon a merits review, the Court of Appeals panel ruled that Hollon's IAAC
claim was properly dismissed because it was not cognizable by the trial court .
The panel nevertheless joined other panels of our Court of Appeals2 and at
least one panel of the United States Court of Appeals for the Sixth Circut3 in
urging us to reconsider our Hicks policy as incompatible with, or at least as out
of harmony with, United States Supreme Court precedent.
2 Lofton v. Commonwealth, No . 2002-CA-001550-MR, 2004 WL 178388 (Ky. App. Jan .
30, 2004) ; Payne v. Commonwealth, No. 2003-CA-000380, 2004 WL 691208 (Ky.
App . April 2, 2004) .
Boykin v. Webb, 541 F.3d 638 (6th Cir. 2008).
We granted Hollon's motion for discretionary review to reexamine
whether IAAC claims may be prosecuted in the Commonwealth and, if so, how
such claims shall be pursued. Today we conclude that our courts should
address such claims and that generally the proper avenue for asserting them
will be the one Hollon chose : a motion pursuant to RCr 11 .42 to vacate or set
aside the underlying judgment .
ANALYSIS
I . The Right to the Effective Assistance of Appellate Counsel Extends
Beyond Counsel's Mere Filing of a Merits Brief.
As Hollon correctly notes, the Due Process Clause of the Fourteenth
Amendment to the United States Constitution, and through it the Sixth
Amendment, entitle criminal defendants to the effective assistance of counsel
not only at trial, but during a first appeal as of right. Evitts v. Lucey, 469 U .S .
387 (1985) . See generally Mason v. Hanks, 97 F.3d 887
(7th
Cir . 1996) . In
Evitts, a case from Kentucky, Keith Lucey was convicted of trafficking in a
controlled substance, and his retained attorney filed a timely notice of appeal
to the Court of Appeals. The attorney failed, however, to file the thenmandatory statement of appeal, and consequently our Court of Appeals
granted the Commonwealth's motion to dismiss the appeal. Through habeas
review, the case found its way to the United States Supreme Court, and before
that Court it was conceded that defense counsel's failure to file the mandatory
form constituted ineffective assistance . The Supreme Court held that the
Kentucky Court of Appeals' refusal to consider the merits of Lucey's appeal
solely on the ground of counsel's deficient performance denied Lucey the due
process of law.
A few years later, this Court was confronted with an IAAC claim
somewhat different from the one the United States Supreme Court had
addressed in Evitts. In Hicks v. Commonwealth, supra, following his direct
appeal, the merits of which were considered and decided adversely to him, Glen
Hicks moved for relief pursuant to RCr 11 .42, and alleged that appellate
counsel was ineffective because he had failed to raise various issues for
consideration on direct appeal . The trial court denied relief, and on appeal to
this Court we acknowledged Evitts, but read it narrowly as requiring only the
reinstatement of an appeal which had been dismissed as a result of counsel's
ineffectiveness . Hicks's claim did not implicate that requirement. Moreover,
this Court found
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 .
Hicks, 825 S.W .2d at 281 . The Hicks Court concluded that we would not
"examine anew an appeal
,reviewed,
considered and decided by this Court." Id.
Since then, we have refused to recognize the Hicks-type of IAAC claim and have
upheld Hicks's narrow reading of Evitts several times . Upon further
consideration of Evitts and its progeny in state and federal courts, we ,can no
longer subscribe to this overly limited view of the mandate of Evitts v. Lucey.
Technically, perhaps, the United States Supreme Court's holding in
Evitts can be limited to the facts then before the Court, but the Court's
explanation of its ruling simply does not support such a minimalist reading.
As the United States Supreme Court explained,
In bringing an appeal as of right from his conviction, a
criminal defendant is attempting to demonstrate that
the conviction, with its consequent drastic loss of
liberty, is unlawful . To prosecute the appeal, a
criminal appellant must face an adversary proceeding
thatlike a trial--is governed by intricate rules that to
a layperson would be hopelessly forbidding . An
unrepresented appellant-like an unrepresented
defendant at trial-is unable to protect the vital
interests at stake . To be sure, respondent did have
nominal representation when he brought his appeal.
But nominal representation on an appeal as of rightlike nominal representation at trial-does not suffice to
render the proceedings constitutionally adequate ; a
party whose counsel is unable to provide effective
representation is in no better position than one who
has no counsel at all.
469 U.S . at 396. There is no distinction implicit in this explanation between,
on the one hand, counsel's procedural missteps that result in dismissal of an
appeal and, on the other hand, deficiencies rendering a potentially favorable
appeal substantively meritless . Indeed, the Court noted that while Lucey's
case involved procedural mistakes, other cases dealing with the right to
counsel-trial or appellate-had focused on the defendant's need for
substantive assistance, for "`counsel's examination into the record, research of
the law, and marshalling of arguments on [the client's] behalf.' Id. at 394 n. 6
(quoting Douglas v. California, 372 U .S . 353, 358 (1963), brackets in original) .
The Supreme Court elaborated upon a defendant's right to the effective
assistance of appellate counsel in Smith v. Robbins, 528 U .S. 259 (2000), a case
in which the defendant's appeal had been dismissed as frivolous. The Court
reiterated that on a first appeal as of right, "'[d]ue process . . . [requires] States
. . . to offer each defendant a fair opportunity to obtain an adjudication on the
merits of his appeal.' 528 U.S . at 277 (quoting from Evitts, 469 U .S. at 405
(brackets and ellipses in original)) . That requirement, the Court explained,
citing Anders v . California, 386 U.S . 738 (1967), does not prohibit the States
from dismissing frivolous appeals. However, it does prohibit such a dismissal
except where a defendant has had the assistance of counsel to find nonfrivolous grounds for appeal, and then, upon counsel's reasoned conclusion
that no such grounds exist, the appellate court has independently determined
that counsel's conclusion is warranted.
Technically, therefore, Smith, like Evitts, addresses the right to counsel to
ensure that an appeal of right is not improperly dismissed so as to frustrate an
adjudication on its merits . Relying on this technical distinction between cases,
such as Smith and Evitts, in which no merits brief was filed, and cases in which
a merits brief has been filed and ruled upon, we have upheld our Hicks ruling
even in the wake of Smith. See, e.g., Parrish v. Commonwealth, 272 S .W .3d 161
(Ky. 2008) . Smith, however, even more than Evitts, strains that distinction
beyond what it can reasonably bear . Smith held that defendants pursuing a
first appeal as of right are entitled to counsel's effective assistance in
identifying non-frivolous grounds for appeal as well as counsel's effective
assistance in briefing and otherwise presenting an appeal based on those
grounds. The standard for evaluating claims that appellate counsel was
ineffective, the Court held, is the familiar "deficient-performance plus
prejudice" standard applied to claims of ineffective trial counsel in Strickland v.
Washington, 466 U.S . 668 (1984) :
Respondent [defendant] must first show that his
counsel was objectively unreasonable . . . in failing to
find arguable issues to appeal--that is, that counsel
unreasonably failed to discover nonfrivolous issues
and to file a merits brief raising them. If [defendant]
succeeds in such a showing, he then has the burden
of demonstrating prejudice . That is, he must show a
reasonable probability that, but for his counsel's
unreasonable failure to file a merits brief, he would
have prevailed on his appeal.
Smith, 528 . U.S . at 285. If the failure to file a merits brief can constitute
ineffective assistance, it would seem to follow that the filing of a merits brief
that is grossly inadequate because it fails altogether to raise a meritorious
issue could do the same.
Not surprisingly, therefore, although in Smith the United States Supreme
Court did not have before it an ineffective assistance of appellate counsel claim
based on an assertedly deficient merits brief, the sort of claim this Court had
before it in Hicks, the vast majority of courts has recognized that the right to
the effective assistance of appellate counsel examined in the no-merits-brief
circumstances of Smith extends naturally and by necessary implication to the
merits-brief situation. Gregory G . Sarno, Annotation, Adequacy of Defense
Counsel's Representation of Criminal Client Regarding Appellate and
Postconviction Remedies, 15 A.L.R. 4th 582 (1982) . More is required of appellate
counsel than merely filing a brief. The Smith court itself observed that while
appellate counsel who files a merits brief need not (and
should not) raise every nonfrivolous claim, but rather
may select from among them in order to maximize the
likelihood of success on appeal . . . it is still possible to
bring a Strickland claim based on counsel's failure to
raise a particular claim, but it is difficult to
demonstrate that counsel was incompetent.
528 U.S. at 288. This statement by the United States Supreme Court clearly
indicates that our Hicks distinction between merits-brief and no-merits-brief
cases has no constitutional foundation, but rather undercuts a defendant's
constitutional right to counsel's effective assistance in preparing a merits brief.
We are thus persuaded that it is time, indeed past time, to overrule Hicks
and the cases relying upon it and to recognize IAAC claims premised upon
appellate counsel's alleged failure to raise a particular issue on direct appeal.
To succeed on such a claim, the defendant must establish that counsel's
performance was deficient, overcoming a strong presumption that appellate
counsel's choice of issues to present to the appellate court was a reasonable
exercise of appellate strategy. As the Supreme Court noted in Smith,
"'[g]enerally, only when ignored issues are clearly stronger than those
presented, will the presumption of effective assistance be overcome ."' 528 U .S.
at 288 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)) . We further
emphasize "ignored issues" to underscore that IAAC claims will not be
premised on inartful arguments or missed case citations; rather counsel must
have omitted completely an issue that should have been presented on direct
appeal. For further clarity, we additionally emphasize that IAAC claims are
limited to counsel's performance on direct appeal; there is no counterpart for
counsel's performance on RCr 11 .42 motions or other requests for postconviction relief. Finally, the defendant must also establish that he or she was
prejudiced by the deficient performance, which, as noted, requires a showing
that absent counsel's deficient performance there is a reasonable probability
that the appeal would have succeeded. Smith, supra.
II. Merits-Based IAAC Claims Should Be Raised in the Trial Court
Pursuant to RCr 11.42.
Having determined that Kentucky courts are to recognize IAAC claims in
cases where the direct appeal has been decided on the merits, we must now
consider how such claims are to be raised. As we have noted several times
over the years, our rules governing review of a trial court's final judgment in a
criminal case are meant to be organized and complete. The rules related to
direct appeals, RCr 11 .42, and Kentucky Rule of Civil Procedure (CR) 60 .02
collectively create a structure that "provides for wide-ranging opportunities for
a defendant to challenge in all respects the legality and fairness of his
conviction and sentence ." Foley v. Commonwealth, 306 S.W .3d 28, 31 (Ky.
2010) . At each stage in this structure the defendant is required to raise all
issues then amenable to review, and generally issues that either were or could
have been raised at one stage will not be entertained at any later stage . Gross
v. Commonwealth, 648 S.W .2d 853 (Ky. 1983) . This structure, wide-ranging
but also finite and complete, is an attempt to balance society's and the
defendant's interest in just and accurate criminal convictions with society's
and the court's interest in the ultimate finality of judgments . Because the
completeness of the current structure is one of its principal attributes, we look
first to see if IAAC claims fit naturally at some point within it.
Obviously, IAAC claims cannot be raised in the direct appeal, since it is
precisely counsel's assistance with that now-concluded appeal that is at issue .
Hollon brought his IAAC claim as part of his post-conviction motion pursuant
to RCr 11 .42 . That rule permits "[a] prisoner in custody under sentence or a
defendant on probation, parole or conditional discharge," to move the court
that imposed the sentence "to vacate, set aside or correct it," on the ground
"that the sentence is subject to collateral attack ." The rule does not expressly
provide for IAAC claims, and generally it is used to attack alleged infirmities
that arose during trial. Nevertheless, courts with rules very similar to ours
have construed "collateral attack" broadly to include IAAC claims the gist of
which is that a serious infirmity during trial should have received, but owing to
appellate counsel's ineffectiveness did not receive, appellate review . See, e.g.,
Page v. United States, 884 F.2d 300 (7th Cir. 1989) ; State v. Herrera, 905 P.2d
1377 (Ariz. App. 1995) ; Commonwealth v. Sullivan, - 371 A.2d 468 (Pa. 1977) . If,
under the approach these courts adopt, the trial court finds ineffective
assistance of appellate counsel, it may vacate the judgment of conviction and
reenter it, thereby allowing the defendant an appeal in which to raise the
neglected issue . Page, supra.
These courts answer concerns that such an approach allows the trial
court in effect to order the appellate court to grant a new appeal by noting that
all RCr 11 .42 rulings create the basis for a new appeal, that rulings granting
RCr 11 .42 relief reopen judgments that may have been affirmed on appeal, and
that IAAC claims do not challenge or require the trial court to pass on the
appellate court's decision, but rather on the conduct of appellate counsel . Id.
The appellate court, moreover, is not bound by the trial court's decision, which,
like other RCr 11 .42 rulings, is subject to appeal by either party. Sullivan,
supra. They conclude that there is no incongruity in having the trial court
address IAAC claims, and there is the benefit that factual issues, such as
possible questions concerning counsel's appellate strategy, may be addressed
in the court best able to review them, i .e., the trial court where evidentiary
hearings are a normal part of the daily docket.
Other courts, however, have construed rules like our RCr 11 .42 as
addressed exclusively to errors occurring in the course of trial. An order
vacating and reinstating the judgment to permit the appeal of a neglected issue
has the effect, these courts conclude, not of setting aside or correcting the
judgment as contemplated by the rule, but of setting aside the appellate
decision. They hold, accordingly, that a motion in the trial court for postconviction relief is not a proper vehicle for IAAC claims, and require instead an
original proceeding in the appellate court where counsel's alleged
ineffectiveness occurred . That appellate court is in the best position to judge
appellate counsel's performance, these courts maintain, and fact-finding may
be assigned to a referee or to the trial court. See, e.g., Feldman v. Henman, 815
F.2d 1318 (9th Cir. 1987) (holding that IAAC claims must be brought by motion
to recall mandate in the appellate court) ; State v. Knight, 484 N .W.2d 540 (Wis .
1992) (holding that IAAC claims must be brought as habeas actions in the
appellate court) ; People v. Bachert, 509 N .E .2d 318 (N .Y. 1987) (holding that
IAAC claims must be brought as coram nobis proceedings in the appellate
court.) .
This Court expressed similar concerns in Com. v. Wine, 694 S.W .2d 689
(Ky. 1985) where we held that a defendant could not invoke RCr 11 .42 on the
ground he received ineffective counsel because his right to appeal had been
allowed to expire or his appeal had been dismissed . The exclusive remedy in
those cases, we said, was to move the appellate court for a belated appeal or to
reinstate the dismissed appeal; the appellate court's decision was not to be
"litigated anew in the trial court pursuant to RCr 11 .42 ." Wine, 694 S .W.2d at
694 . We explained 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 ."
Id. We certainly would reiterate that any issue, including the ineffectiveness of
counsel, actually decided by the appellate court, whether on motion for
reinstatement of a dismissed appeal or on direct appeal, may not be reopened
pursuant to RCr 11 .42 . The trial court does not have jurisdiction to review
appellate decisions. Nor do we see any reason to depart from Wine's
requirement that one seeking relief from an expired or a dismissed appeal do so
by motion in the court with jurisdiction over the appeal. The botched appeal
scenario is one instance in which it does not seem unreasonable to expect
counsel to admit, if appropriate, a procedural mistake that had the effect of
aborting the client's appeal and, in those cases, the appellate court is in the
best position to assess whether relief is warranted.
The Wine Court did not have before it the Hicks-type of IAAC claim, a
claim based on counsel's alleged failure to include in an appeal, the merits of
which have already been decided, a glaringly important issue . That sort of
claim, we are persuaded, may appropriately be addressed to the trial court
pursuant to RCr 11 .42, and hence we depart from and overrule Wine and its
progeny to the extent that they suggest otherwise. The rule encompasses such
claims, we believe, because although appellate counsel's performance is being
attacked, the basis of the attack is an alleged flaw in the trial proceedings for
which appellate counsel neglected to seek relief. The claim then is at root and
in essence a collateral attack on the judgment, and RCr 11 .42 is, in our
comprehensive scheme of post-conviction review, the stage at which such an
attack is to be raised . The trial court is no less competent to assess in the first
instance the seriousness of the alleged flaw and appellate counsel's reasons, if
any, for bypassing a particular issue, than it is to assess trial counsel's alleged
miscues and strategic choices, the mainstay of RCr 11 .42 litigation .
We agree with those courts discussed above which find no incongruity in
the trial court's assessing counsel's appellate performance, since, as those
courts note, no appellate decision is being disturbed. Page v. United States,
supra. By vacating the judgment, the trial court is not reopening the appeal for
reconsideration of any issue already decided. It is rather reopening the
judgment, as it is authorized under the rule to do, so that a serious but
theretofore unaddressed question about its validity may receive appellate
review .
We also agree with those courts that the trial court is the best place for
consideration of the Hicks-type of IAAC claim to start . Not only is the trial
court better able than the appellate court to address questions of fact, but
there are obvious efficiencies to be gained by having both appellate and trial
ineffective assistance claims addressed in a single proceeding. From a
practical standpoint, the consolidation will prevent the delays and confusion
that would result from separate courts, trial and appellate, needing the same
case record simultaneously . It will also spare defendants and post-conviction
counsel possibly difficult choices about which ineffectiveness claim, trial or
appellate, to pursue first and the impact of that choice on the timeliness with
which the other claim is pursued.
We hold, therefore, that Hicks-type IAAC claims may henceforth be
pursued by motion in the trial court of conviction under RCr 11 .42 . Our ruling
is to have prospective effect only. It applies to this case, to cases pending on
appeal in which the issue has been raised and preserved, and to cases
currently in or hereafter brought in the trial court in which the issue is raised .
Prospective application is appropriate because, although our courts have not
until now provided a forum for IAAC claims based on an allegedly inadequate
appellate brief, the federal courts have provided a forum through habeas
review. See Boykin v. Webb, supra. Kentucky defendants have not, therefore,
been denied an opportunity to vindicate their right to effective appellate
counsel, and there is thus no need for our decision today to reach back and
operate retroactively.
For clarity, we note some general principles regarding the courts' roles in
review of IAAC claims . The trial court will address the IAAC issue under the
aforementioned standards entering findings and an appropriate order pursuant
to RCr 11 .42(6) . Once the trial court rules on a defendant's IAAC claim, that
court's order will be reviewable in the same manner as orders addressing RCr
11 .42 motions are currently reviewed . See RCr 11 .42(7) (either movant or
Commonwealth may appeal from court's final order on RCr 11 .42 motion) .
If the trial court finds that the. defendant received ineffective appellate
assistance and is entitled to relief under the Strickland v. Washington standard,
as noted above, the trial court should enter appropriate findings and an order
vacating the original judgment . We depart from the approach, adopted by
some courts, which also requires the trial court to reenter the original
judgment so that an appeal of the omitted issue may proceed . Kentucky trial
courts should not reenter the original judgment . The matter-of-right appeal
guaranteed by § 115 of the Kentucky Constitution has concluded and it is not
necessary to reenter the judgment in order for the omitted issue(s) to receive
appellate review ; any omitted issue or issues will be reviewed as part-andparcel of the appeal of the trial court's order on the RCr 11 .42 motion .
On the appeal of the trial court's order on the RCr 11 .42 motion, it is
incumbent on the Court of Appeals4 to review in the first instance the trial
court's ruling regarding IAAC. If the Court of Appeals concludes that there was
ineffective appellate assistance, then it should proceed to address the omitted
issue or issues on which the IAAC claim is based.5 Should the Court of
Appeals conclude that there was no IAAC meriting relief then, of course, it
would be unnecessary for that Court to address the issue or issues omitted
from the matter-of-right appeal . Any final opinion of the Court of Appeals
would, as always, be subject to discretionary review by the Supreme Court
pursuant to CR 76 .20 .
When appellate review of the matter is concluded, either by a final
opinion of the Court of Appeals or by a final opinion of this Court after having
granted discretionary review, and the defendant does not prevail, any prior
vacation of the original judgment will be reversed leaving that judgment intact
as originally entered. However, if the defendant prevails on the IAAC claim and
an omitted issue justifies relief, the final opinion from this Court or the Court
of Appeals will direct the trial court accordingly by either granting a new trial,
ordering the correction of the judgment or ordering such other relief as may be
4
If the case resulted in imposition of the death penalty, of course, the appeal of the
RCr 11 .42 ruling would come directly to this Court. Leonard v. Commonwealth, 279
S .W.3d 151 (Ky . 2009) .
5
We recognize that these inquiries, IAAC and the merits of the omitted appellate
issue(s), are intertwined but they are, nevertheless, separate determinations .
appropriate . Through this process, the order on a defendant's post-conviction
motion alleging IAAC receives full consideration and any omitted issue which
could merit relief is addressed, when appropriate, in the appellate review of the
RCr 11 .42 ruling.
As a final note, we recognize that if a trial court concludes that a
defendant received ineffective assistance of appellate counsel and vacates the
judgment, the aforementioned procedure provides for effective final resolution
in all but potentially one instance . If the Commonwealth, for whatever reason,
failed to appeal timely the trial court's order granting RCr 11 .42 relief, the
matter would be in a legal limbo of sorts, with a vacated judgment but no
appellate ruling on either the IAAC claim or the omitted issue(s) necessary to
the determination of whether the defendant is entitled to some form of relief.6
Accordingly, pursuant to our rulemaking authority, the Court amends RCr
11 .42(7) as follows :
(7) Either the movant or the Commonwealth may
appeal from the final order or judgment of the trial
court * ~^ - p., -eed i n g on a motion brought under this
rule. If the trial court finds the movant received
ineffective assistance of appellate counsel and the
Commonwealth fails to pursue a timely appeal, the
movant may appeal the trial court's order by fling a
notice of appeal within sixty (60) days after the date of
notation of service of the judgment or order under Civil
Rule 77.04(2).
The foregoing amendment should assure that the matter is pursued for the
necessary final appellate resolution.
The vacated judgment alone would not entitle the defendant to any relief because it
is not a judgment of acquittal. The charges would simply be unresolved.
Returning to the case before us, as a somewhat odd wrinkle, the trial
court, notwithstanding Hicks, addressed Hollon's IAAC claim and denied relief
because it concluded appellate counsel had performed adequately . The Court
of Appeals invoked Hicks and, correctly under then-existing precedent, declined
any further merits review . It would therefore appear to be unnecessary to
remand this case to the trial court as we would ordinarily because that court
has already addressed the IAAC claims . However, the Commonwealth notes
that the trial court did not have before it the appellate brief filed by Hollon's
counsel, relying instead on Hollon's present counsel's representations
regarding the issues raised in Hollon's appeal . This illustrates the importance
of a defendant appending. to the RCr 11 .42 motion copies of the briefs filed in
his or her matter-of-right appeal in order for the trial court to ascertain
whether the allegedly omitted meritorious appellate issue was, indeed, not
raised . Nevertheless, it appears there was never any dispute about the fact
that the specific issues upon which Hollon now premises his IAAC claim were
not included in his matter-of-right appeal . Under these circumstances, we find
no reason to remand this case to the trial court to secure and examine the
direct appeal briefs . Our remand, therefore, is not to the trial court, as might
have been expected, but to the Court of Appeals so that it may now take up the
merits of Hollon's RCr 11 .42 appeal.
CONCLUSION
In sum, although in both Evitts v. Lucey and Smith v. Robbins the United
States Supreme Court did not have before it a case in which appellate counsel's
effectiveness was challenged following an appellate court's review of the
defendant's appeal on the merits, the right to effective appellate counsel which
the Court delineates in those cases clearly extends beyond the mere filing of a
timely merits brief. Simply put, these cases require that an appellate brief
itself satisfy basic professional norms pursuant'to the standard enunciated in
Strickland v. Washington and applied to an appellate ineffective assistance
claim in Smith v. Robbins . We hereby abandon, therefore, the distinction we
drew in Hicks v. Commonwealth between ineffective appellate counsel cases in
which a merits brief was filed and the merits were considered and those in
which they were not. The former, the Hicks-type claim, may, as of the
rendering of this Opinion, be pursued, in the trial court of conviction under RCr
11 .42 subject to the prospective application rule outlined above and to the
noted limitation of IAAC claims to an issue or issues omitted in the direct
appeal . RCr 11 .42, one of the remedies provided in what is meant to be
Kentucky's comprehensive scheme of post-conviction review, readily embraces
these IAAC claims, and does so with much less disruption to post-conviction
proceedings generally than would a new procedural rule singling out IAAC
claims for special treatment in the appellate courts . Accordingly, we reverse
the Opinion of the Court of Appeals and remand to that Court for further
proceedings consistent with this Opinion .
Minton, C.J. ; Cunningham, Schroder, and Venters, JJ ., concur. Noble,
J ., concurs by separate opinion . Scott, J ., dissents by separate opinion .
NOBLE, J ., CONCURRING OPINION : While I am fully cognizant that §
110 of the Kentucky Constitution requires review of sentences of more than 20
years by the Supreme Court, this Court is now recognizing a new right - the
right to raise ineffective assistance of appellate counsel - which necessitates ,
originating process that will efficiently deal with issues omitted on appeal due
to defective performance of appellate counsel, and consequently this Court
views these omitted issues of appeal as collateral rather than direct, and thus
reviewable as part of an IAAC claim before the Court of Appeals.
SCOTT, J., DISSENTING OPINION : I must respectfully dissent from the
majority's adoption of a new Ineffective Assistance of Appellate Counsel Rule . I
do so because of the many new complexities it will present.
Federal courts already review such allegations in federal habeas corpus
proceeding and, where appropriate, grant or insure appropriate relief. See
Wilson v. Parker, 515 F3d 682, 706-08 (6th Cir. 2008) . To adopt a broader rule
now will necessarily open up our RCr 11 .42 relief to every defendant who, years
ago, failed to raise a later-validated rightraised and won by someone else
years later as society's perspective changed and evolved . Moreover, as courts
tend to view new decisions as ones that should have been made years ago, we
will tend more and more to open up old cases on new issues that would not
have been, or were not, validated in their day, solely on the supposition that
appellate counsel of the time was ineffective for not preserving the issue then, a
point that, most often, will not have been true for the time. My concern is:
where will this new concept of ineffective assistance of appellate counsel end?
As a case in point, I cite this Court's continuing, decades-old evolution in
regard to the Merritt/Kennedy line of cases dealing with the operability of
firearms .?
Our state court system and its personnel are burdened more and more
each year by increasing legislation and appellate court decisions expanding
their jurisdiction and responsibilities while their budgets and personnel
dwindle . Thus, I fear that-compared to the increases of their burdens
before--this decision will be the equivalent of a flood, the effect of which will be
felt for many years. It is for this reason-and the fact that we already have a
system in place to address these issues under the federal habeas corpus
standards-that I must respectfully dissent to this expansion, as well as its
progeny to come .
7 Kennedy v. Commonwealth, 386 S.W.2d 727 (Ky. 1965) and Merritt v.
Commonwealth, 544 S.W.2d 219 (Ky. 1976) were ultimately overruled by Wilburn v.
Commonwealth, 312 S.W.3d 321 (Ky. 2010) .
COUNSEL FOR APPELLANT:
Dennis James Burke
Assistant Public Advocate
Department of Public Advocacy
207 Parker Drive, Suite One
LaGrange, KY 40031
Amy Robinson Staples
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
Perry Thomas Ryan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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