TIMOTHY FANCHER v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 15, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000206-MR
TIMOTHY FANCHER
v.
APPELLANT
APPEAL FROM METCALFE CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
ACTION NO. 93-CR-00001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, DYCHE AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Timothy Fancher, pro se, has appealed from an
order entered by the Metcalfe Circuit Court on December 4, 2001,
which denied his motion to obtain free copies of his court
records.
Having concluded that the trial court did not err, we
affirm.
On September 21, 1992, Fancher was indicted by a
Metcalfe County grand jury for the offense of murder1 for the
1
Kentucky Revised Statutes (KRS) 507.020.
shooting death of David L. Burdick.
December 1993.
A jury trial was held in
The jury found Fancher guilty of murder and he
was sentenced to life in prison on January 7, 1994.
The Supreme
Court of Kentucky affirmed Fancher’s conviction and sentence in
a memorandum opinion rendered on April 25, 1996.2
The Commonwealth has treated this appeal as an appeal
from an order denying Fancher relief under CR3 60.02.
However,
because we determine that the appeal from the denial of the CR
60.02 motion is not properly before this Court, we find it
necessary to outline the procedural history of the case after
Fancher’s conviction was affirmed.
After the entry of the
Supreme Court’s Opinion affirming Fancher’s conviction, the next
entry in the record is an order of the Metcalfe Circuit Court,
entered on December 4, 2001, denying a motion by Fancher to
obtain court records.4
Fancher then filed an “appeal from
Metcalfe Circuit Court, Honorable Benjamin L. Dickinson, Judge”,
on January 22, 2002.
Fancher also filed a motion to proceed in
forma pauperis on appeal, which was granted by the circuit
court.
On May 9, 2002, while this appeal was pending, the
record establishes that Fancher filed a “Motion for Modification
2
Case no. 1994-SC-000565-MR.
3
Kentucky Rules of Civil Procedure.
4
The motion filed by Fancher is not in the record.
-2-
of Sentence Pursuant to Civil Rule CR 60.02 (F).”
In an order
entered on June 4, 2002, the circuit court denied Fancher CR
60.02 relief.
Fancher then tendered a notice of appeal from
this order on June 24, 2002.
He also filed a motion to proceed
in forma pauperis on appeal.
The trial court denied the motion
to proceed in forma pauperis.
Fancher did not appeal from the
order denying his motion to proceed in forma pauperis or pay the
requisite filing fee.
CR 73.02(1)(b) states in pertinent part:
If the motion to proceed in forma pauperis
is denied, the party shall have ten days
within which to pay the filing fee or to
appeal the denial to the appropriate
appellate court. Time for further steps in
the appeal or cross-appeal shall run from
the date that the notice of appeal is filed
upon payment of the filing fee or the
granting of the motion to proceed in forma
pauperis.
Because Fancher did not appeal the denial of his motion to
proceed in forma pauperis on the appeal of the denial of his CR
60.02 motion or pay the filing fee, he failed to properly appeal
from the order denying him CR 60.02 relief.
issues are not properly before the Court.
As such, those
Therefore, the only
issue on appeal is whether the circuit court erred by denying
Fancher’s motion requesting free copies of his trial record.
Unfortunately, we can only speculate as to what
Fancher argued in support of his motion requesting free copies
-3-
of his court records, as the motion is not in the record.
“It
has long been held that, when the complete record is not before
the appellate court, that court must assume that the omitted
record supports the decision of the trial court.”5
As such, we
must affirm.
However, even if we were to assume that Fancher made
the same arguments to the circuit court as he makes to this
Court on appeal, we would still affirm.
First, at the time
Fancher filed his motion for free copies of his trial records,
he had no motion or case pending before the circuit court.
It
is well established that a person is not entitled to copies of
court records at the Commonwealth’s expense in order to search
for grievances.6
Second, and more importantly, Fancher failed to file a
motion to vacate his judgment under RCr7 11.42 within three years
of the date his conviction was final.
All of Fancher’s
generalized allegations involve his claim that his trial counsel
was ineffective.
In Gross v. Commonwealth,8 our Supreme Court
stated:
[T]he proper procedure for a defendant
aggrieved by a judgment in a criminal case
5
Commonwealth v. Thompson, Ky., 697 S.W.2d 143, 145 (1985) (citing
Commonwealth, Dept. of Highways v. Richardson, Ky., 424 S.W.2d 601 (1968)).
6
Gilliam v. Commonwealth, Ky., 652 S.W.2d 856, 858 (1983).
7
Kentucky Rules of Criminal Procedure.
Ky., 648 S.W.2d 853, 857 (1983).
8
-4-
is to directly appeal that judgment, stating
every ground of error which it is reasonable
to expect that he or his counsel is aware of
when the appeal is taken.
. . . . [A] defendant is required to avail
himself of RCr 11.42 while in custody under
sentence or on probation, parole or
conditional discharge, as to any ground of
which he is aware, or should be aware,
during the period when this remedy is
available to him. Final disposition of that
motion, or waiver of the opportunity to make
it, shall conclude all issues that
reasonably could have been presented in that
proceeding. The language of RCr 11.42
forecloses the defendant from raising any
questions under CR 60.02 which are "issues
that could reasonably have been presented"
by RCr 11.42 proceedings.
Fancher makes no claim that during the three years
that RCr 11.42 relief was available to him that he was unaware
of the grounds he now claims entitle him to relief or that these
grounds could not have reasonably been presented in an RCr 11.42
proceeding.
Indeed, all issues raised by Fancher were either
decided by the Supreme Court on direct appeal, reasonably could
or should have been raised on direct appeal or could or should
have been raised in a motion for RCr 11.42 relief.
these issues have been waived.
As such,
Therefore, Fancher’s only need
for trial records would be to search for new grievances.
stated previously, he was not entitled to copies of court
records at the Commonwealth’s expense for that purpose.
-5-
As
For the foregoing reasons, the order of the Metcalfe
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Timothy Fancher, Pro Se
West Liberty, Kentucky
Albert B. Chandler III
Attorney General
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
-6-
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