WAYNE GRAHAM v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 14, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002430-MR
WAYNE GRAHAM
APPELLANT
APPEAL FROM HENRY CIRCUIT COURT
HONORABLE DENNIS A. FRITZ, JUDGE
ACTION NO. 91-CR-00004
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; GUIDUGLI AND TACKETT, JUDGES.
TACKETT, JUDGE.
Appellant, Wayne T. Graham, appeals from a Henry
Circuit Court order entered on July 6, 1998, which denied his
Kentucky Rule of Criminal Procedure (RCr) 11.42 motion.
After
reviewing the record, we affirm the circuit court’s decision to
deny appellant’s motion, but on different grounds than those
relied upon by the trial court.
In September 1991, appellant pled guilty to and was
convicted of one count of first-degree robbery, Kentucky Revised
Statute (KRS) 515.010, one count of first-degree burglary, KRS
511.010, and was found to be a persistent felony offender in the
first degree, KRS 532.080.
On November 6, 1991, appellant was
sentenced to forty years in the penitentiary.
On January 15,
1998, appellant filed a motion to vacate or set aside the
judgment pursuant to RCr 11.42.
On July 6, 1998, the circuit
court denied appellant’s RCr 11.42 motion.
This appeal followed.
RCr 11.42 allows individuals in custody under sentence
to collaterally attack the judgment entered against them.
The
circuit court, in its order denying appellant’s RCr 11.42 motion,
addressed the merits of appellant’s motion.
After reviewing the
record, we agree with the circuit court’s order and are inclined
to affirm on the grounds stated therein.
However, upon further
review, we find that appellant has untimely filed his RCr 11.42
motion.
RCr 11.42(10), as amended effective October 1, 1994,
provides generally that motions filed under this rule "shall be
filed within three years after the judgment becomes final. . . ."
However, the rule further provides that "[i]f the judgment becomes
final before the effective date of this rule, the time for filing
the motion shall commence upon the effective date of this rule."
The judgment appellant seeks to have set aside pursuant
to RCr 11.42 became final before October 1, 1994, the effective
date of RCr 11.42(10).
Therefore, appellant had until October 1,
1997, to file his RCr 11.42 motion.
The record clearly
establishes that appellant filed his RCr 11.42 motion on January
15, 1998, more than three months after the October 1, 1997,
deadline.
Appellant’s RCr 11.42 motion was not timely filed.
The order denying appellant’s RCr 11.42 motion is hereby
affirmed.
-2-
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Wayne T. Graham, Pro Se
Central City, Kentucky
Albert B. Chandler III
Attorney General
Courtney A. Jones
Assistant Attorney General
Frankfort, Kentucky
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