THOMAS HENSLEY v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 22, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-001663-MR
THOMAS HENSLEY
v.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
INDICTMENT NO. 92-CR-00011
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: BARBER, GUIDUGLI and HUDDLESTON, Judges.
HUDDLESTON, JUDGE:
Thomas Hensley appeals from a Laurel Circuit
Court order denying his motion filed pursuant to Kentucky Rule of
Civil Procedure (CR) 60.02 and Kentucky Rule of Criminal Procedure
(RCr) 10.06 seeking to vacate his conviction for first-degree
murder and first-degree assault based on alleged fraudulent conduct
by his trial counsel in connection with post-judgment review of his
conviction.
Having concluded that Hensley’s claims have or could
have been raised in prior proceedings, we find that the trial court
did not err in denying the motion.
In December 1991, Snowden Baker Jr. and Jeffrey Payne
were shot while at Hensley’s residence.
Baker died as a result of
his wounds and Payne was seriously injured.
In February 1992, the
Laurel County grand jury indicted Hensley on one capital felony
count of murder, one felony count of assault in the first degree
and for being a persistent felony offender in the second degree
(PFO II).
At the jury trial conducted between January 19-22, 1993,
Hensley was represented by Warren Scoville.
During the trial,
Payne testified that Hensley had shot him and Baker while they were
having an uneventful conversation.
Hensley testified that Baker
and Payne had accidentally been shot while he was fighting with
Bill Parker, who was attempting to shoot him.
Scoville cross-
examined Payne extensively, especially concerning inconsistencies
in two statements he had given to the police.
The jury found
Hensley guilty of murder and assault in the first degree.
On
February 12, 1993, the circuit court sentenced Hensley consistent
with the jury’s recommendation to 50 years for murder and 20 years
for assault in the first degree to run consecutively for a total
sentence of 70 years.
In January 1994, the Kentucky Supreme Court
affirmed the convictions on direct appeal.
In February 1995, Hensley filed a motion in circuit court
seeking to obtain all court records associated with his case.
In
September 1995, he filed another motion for production of specific
court documents and audio recordings of his court appearances.1
1
On
At the time of Hensley’s trial in February 1993, court
proceedings in Laurel County were recorded on audiotape and by a
(continued...)
-2-
December 18, 1995, the circuit court denied Hensley’s request for
a transcript of all pretrial and trial proceedings because he had
already been provided this material for his direct appeal.
On May
23, 1997, this Court reversed the circuit court in part and ordered
that Hensley be provided transcripts and audiotapes of various
pretrial hearings and the grand jury proceedings.
On August 29,
1997, the circuit court entered an order in conformity with this
Court’s opinion.
On September 30, 1997, Hensley filed an RCr 11.42 motion
pro se challenging his conviction based on ineffective assistance
of counsel on several grounds including counsel’s failure to:
(1)
request a psychological evaluation on Hensley’s competency at the
time of the offense and competency to stand trial; (2) request a
change of venue; (3) adequately investigate and prepare the case;
(4) obtain expert witnesses; and (5) call various lay witnesses,
especially
mitigation
witnesses
at
sentencing.
Hensley
also
alleged that he had been denied a fair appellate review because the
official trial transcript had been altered in numerous places and
testimony left out.
Hensley requested appointment of counsel and
an evidentiary hearing on his RCr 11.42 motion.
On
December
8,
1997,
Hensley
production of the audiotapes of his trial.
filed
a
motion
for
On December 13, 1997,
the circuit court appointed counsel to represent Hensley and also
ordered that he be provided copies of the audiotapes of the trial.
The
court
stated
that
counsel
1
(...continued)
court reporter.
-3-
would
be
allowed
to
file
a
supplemental memorandum supporting the RCr 11.42 motion.
The
Commonwealth
the
opposed
the
order,
but
the
court
overruled
objection and in June 1998, counsel with the Department of Public
Advocacy was assigned to assist Hensley.
Defense counsel filed a
motion for extension of time to supplement the RCr 11.42 motion.
In October 1998, counsel renewed the request for an evidentiary
hearing and asked for funds to hire an expert to evaluate the
audiotape record of the trial.
With the consent of counsel, the
court scheduled a hearing for April 1998 to allow time for the
expert’s analysis of the tapes. On April 13, 1998, defense counsel
requested a continuance of the hearing, which the circuit court
denied.
On
April
15,
1998,
the
circuit
evidentiary hearing on the RCr 11.42 motion.
court
conducted
an
At the beginning of
he hearing, defense counsel again moved for a continuance stating
he had been unable to obtain an expert to analyze the audiotapes
for alleged alterations. The circuit court again denied the motion
and defense counsel indicated that he had not subpoenaed any
witnesses for the hearing; but Snowden Baker’s wife, who happened
to be present for the hearing, was called by Hensley to testify.
The
Commonwealth
called
no
live
witnesses
but
did
offer
an
affidavit by Hensley’s trial attorney, Warren Scoville, disputing
Hensley’s allegations of ineffective assistance of counsel and
alterations in the trial transcript.
Scoville also stated in his
affidavit that Hensley had rejected a guilty plea agreement for a
20-year sentence offered by the Commonwealth after extensive plea
bargain
negotiations.
Hensley
-4-
also
offered
questionnaires
purportedly answered and signed by several of the trial jurors
concerning testimony presented at the trial and defense counsel’s
performance.
On May 20, 1999, the circuit court entered an extensive
order and opinion denying the RCr 11.42 motion.
The circuit court
noted that Hensley had failed to present evidence at the hearing to
support many of his allegations of ineffective assistance of
counsel, that the record refuted some of the claims and that he had
failed to establish either deficient performance by counsel or
prejudicial effect from counsel’s errors.
With respect to the
trial transcript, the court stated that Hensley effectively waived
the argument by failing to raise the issue or seek correction of
the record before the trial court or appellate court on direct
appeal.
Despite the procedural waiver, the circuit court reviewed
the individual claims of alterations or inaccuracies in the trial
transcript identified by Hensley.
claims,
even
if
accepted
as
It found that none of the
true,
rose
to
the
level
constitutional significance resulting in an unfair trial.
of
The
circuit court noted that Hensley’s failure to call witnesses to
authenticate the juror questionnaires diminished their validity.
Hensley appealed the denial of his motion.
On May 5, 2000, this Court affirmed the circuit court’s
denial of Hensley’s RCr 11.42 motion in an unpublished opinion.2 We
held that the circuit court had not abused its discretion in
denying a continuance of the evidentiary hearing.
We also held
that Hensley had not established ineffective assistance of counsel
2
Hensley v. Commonwealth, 1999-CA-001694.
-5-
and agreed with the circuit court that Hensley should have raised
his claim of an altered record in his direct appeal.
On November
15, 2000, the Kentucky Supreme Court denied discretionary review of
this Court’s decision.
Meanwhile, on March 6, 2000, while the appeal of the
circuit court’s denial of his RCr 11.42 motion was pending, Hensley
filed the motion to vacate or set aside his conviction based on CR
60.02 and RCr 10.06 involved in the current appeal.
Hensley
alleged that Warren Scoville committed fraud by altering the record
in the murder prosecution and lying in his affidavit presented in
the RCr 11.42 proceeding in an attempt to cover up his inadequate
performance
in
representing
him.3
Hensley
identified
four
statements by Scoville in his affidavit that he claimed were
inaccurate.
discussed
First, he asserted that Scoville had not notified or
with
Commonwealth.
him
a
20-year
guilty
plea
offer
from
the
Second, he stated that Scoville erred in asserting
there was no question about his mental competence at the time of
the offenses or during preparation for trial. Third, he challenged
Scoville’s statement that both of Jeffrey Payne’s statements to the
police had been blown up as exhibits and revealed to the jury
during the trial.
Fourth, Hensley disputed Scoville’s assertion
that the trial transcript was accurate.
Hensley argued that each
of these areas involved instances of ineffective assistance of
counsel
sufficient
conviction.
to
justify
a
hearing
or
reversal
of
his
In support of his motion, Hensley attached various
3
Hensley also later filed a legal malpractice action
against Scoville that was dismissed by way of summary judgment.
See Hensley v. Scoville, 1999-CA-002157.
-6-
excerpts from the trial transcript and questionnaires purportedly
completed and signed by six of the jurors who participated at his
trial.
The Commonwealth filed a brief response stating these
issues had been presented previously and did not satisfy the
requirements of CR 60.02 and RCr 10.06.
On May 26, 2000, the circuit court entered an order
denying the motion to vacate.
It held that review under RCr 10.06
was unavailable as untimely because under that rule, the motion
must be filed within five days after the verdict or within one year
after
the
evidence.
entry
of
judgment
when
based
on
newly
discovered
The court further held that to the extent the motion
sought relief under CR 60.02 based on ineffective assistance of
trial counsel, it was barred by the successive motions principle.
To the extent the motion was based on false evidence in Scoville’s
affidavit, the court stated that these statements occurred far
after the trial and did not affect the outcome of the trial.
This
appeal followed.
On
rendered
appeal,
ineffective
Hensley
argues
assistance
of
that
his
counsel
trial
and
affidavit presented in the RCr 11.42 proceeding.
lied
attorney
in
his
He contends the
affidavit represents new evidence because he did not learn about
the contents of the affidavit until after the hearing.
Hensley
discusses several examples of alleged discrepancies in the trial
transcript and alleges that Scoville altered the trial audiotapes
to conceal his ineffective performance. He maintains that Scoville
-7-
did not inform him of the guilty plea offer and that there was
evidence he was not mentally competent.4
We agree with the trial court that the issues raised by
Hensley in the current appeal are barred by the successive motions
principle.
In Gross v. Commonwealth,5 the Kentucky Supreme Court
set out the procedure for appellate review in criminal cases.
The
Court
not
stated
that
the
structure
haphazard or overlapping.6
for
appellate
review
is
It held that a criminal defendant must
first bring a direct appeal when available, then utilize RCr 11.42
by raising every error of which he should be aware, and only
utilize CR 60.02 for extraordinary situations not otherwise subject
to relief by direct appeal or by way of RCr 11.42.7
More recently,
in McQueen v. Commonwealth,8 the Court reaffirmed the procedural
requirements set out in Gross, when it said:
A defendant who is in custody under sentence or on
probation, parole or conditional discharge is required to
avail himself of RCr 11.42 as to any ground of which he
is aware, or should be aware, during the period when the
remedy is available to him.
Civil Rule 60.02 is not
4
The Attorney General’s appellate brief fails to address
Hensley’s arguments in any meaningful way.
5
Ky., 648 S.W.2d 853 (1983).
6
Id. at 856.
7
Id. See also Sanborn v. Commonwealth,
905, 908-09 (1998), cert. denied, 526 U.S. 1025,
143 L.Ed.2d 361 (1999); Bowling v. Commonwealth,
545, 549 (1998), cert. denied, 527 U.S. 1026, 119
L.Ed.2d 778 (1999).
8
Ky., 975 S.W.2d
119 S.Ct. 1266,
Ky., 981 S.W.2d
S.Ct. 2375, 144
Ky., 948 S.W.2d 415 (1997), cert. denied, 521 U.S. 1130,
117 S.Ct. 2535, 138 L.Ed.2d 1035 (1998).
-8-
intended
merely
as
an
additional
opportunity
to
relitigate the same issues which could “reasonably have
been
presented”
proceedings.
by
RCr
direct
11.42(3);
[supra, n. 5, at 855, 856].
appeal
Gross
or
v.
RCr
11.42
Commonwealth,
The obvious purpose of this
principle is to prevent the relitigation of issues which
either were or could have been litigated in a similar
proceeding.9
Generally, absent new evidence, a defendant cannot raise the issue
of ineffective assistance of counsel in a post-judgment motion
where that issue was raised and decided in an earlier proceeding.10
In the current case, the issue of ineffective assistance
of counsel was fully litigated in Hensley’s prior RCr 11.42 motion.
In fact, the ineffective assistance claim in that proceeding was
based on the same grounds as those raised in his CR 60.02 motion.
The issue of discrepancies or alterations of the trial transcript
was raised and decided adversely to Hensley in the RCr 11.42
proceeding.
The
circuit
court
reviewed
all
of
the
alleged
alterations and found that even if Hensley’s allegations were
9
Id. at 416. See also Hampton v. Commonwealth, Ky., 454
S.W.2d 672 (1970)(courts have more to do than occupy themselves
with successive reruns of RCr 11.42 motions); Case v. Commonwealth,
Ky., 467 S.W.2d 367 (1971); Shepherd v. Commonwealth, Ky., 477
S.W.2d 798 (1972); Land v. Commonwealth, Ky., 986 S.W.2d 440, 442
(1999).
10
See, e.g., Wilson v. Commonwealth, Ky., 975 S.W.2d 901
(1998), cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d
359 (1999)(involving claim of ineffective counsel in RCr 11.42
motion after issue decided on direct appeal); McQueen v.
Commonwealth, Ky., 949 S.W.2d 70 (1997), cert. denied, 521 U.S.
1130, 117 S.Ct. 2536, 138 L.Ed.2d 1035 (1997)(involving successive
RCr 11.42 motion).
-9-
accepted as true, they did not rise to the level of a due process
violation. The court also noted that the issue of discrepancies in
the trial transcript could and should have been raised in the
direct appeal.
Hensley’s assertion that his CR 60.02 motion is not
procedurally barred because Scoville’s affidavit constitutes “new
evidence” is without merit.
First, the affidavit was presented at
the RCr 11.42 hearing and represented the Commonwealth’s only
evidence. Hensley’s assertion that he only learned of the contents
of the affidavit later and did not have an opportunity to challenge
it earlier is disingenuous.
He was present at the RCr 11.42
hearing and took an active part in the hearing as evidenced by his
insistence on calling Snowden Baker’s wife as a witness despite
objections
by
his
attorney.
Hensley
was
not
prevented
from
reviewing Scoville’s affidavit at the hearing and he should have
raised any challenges to it at that time.
In any event, the
grounds underlying the ineffective assistance claim were reviewed
and
the
circuit
court
held
that
Hensley
suffered
no
actual
prejudice due to errors by trial counsel. Scoville’s affidavit did
not materially affect that analysis.
Hensley is merely seeking to
relitigate issues that either were or could have been decided in
the earlier post-judgment proceedings.
The only issue contained in the RCr 60.02 motion that was
not specifically addressed by the circuit court in its order in the
RCr 11.42 proceeding was Hensley’s claim of ineffective assistance
of counsel based on counsel’s alleged failure to inform him of the
Commonwealth’s guilty plea
offer.
-10-
As the circuit court noted,
Hensley
offered
no
evidence
at
the
RCr
11.42
proceeding
to
contradict Scoville’s statement that Hensley rejected the offer.
Again, we reiterate that Hensley was present at the hearing and
could have testified on this issue at that time.
Because this
issue was raised in the RCr 11.42 proceeding, Hensley cannot seek
review of it by way of a CR 60.02 motion.
The order denying Hensley’s CR 60.02 and RCr 10.56
motions is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas Hensley, pro se
West Liberty, KY
A.B. Chandler III
Attorney General
Elizabeth A. Heilman
Assistant Attorney General
Frankfort, KY
-11-
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