GEORGE RUSSELL ABNEY v. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 19, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002654-MR
GEORGE RUSSELL ABNEY
APPELLANT
APPEAL FROM EDMONSON CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 98-CR-00037
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF AND TACKETT, JUDGES; HUDDLESTON, SENIOR JUDGE.1
TACKETT, JUDGE:
George Abney, Sr., appeals from a decision of
the Edmonson Circuit Court denying his successive motion for
post-conviction relief, pursuant to Kentucky Rule of Criminal
Procedure (RCr) 11.42 without an evidentiary hearing.
Abney,
pro se, argues that the Commonwealth breached the plea agreement
and that he was improperly convicted of conspiracy despite the
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
acquittal of all co-defendants.
We find that he is not entitled
to relief and affirm the trial court.
Abney pled guilty, but mentally ill, to second-degree
arson in October 1999.
The allegation against him was that he
had hired his son, George Abney, Jr., and a friend of his son’s,
Scotty Karnes, to burn down the house where his ex-wife was
currently residing.
He was sentenced to ten years’ imprisonment
and ordered to pay $25,000.00 restitution.
Abney’s son was
tried and acquitted in October 2002, and Karnes received
immunity from prosecution in exchange for his testimony.
After his sentencing, Abney filed numerous pro se
motions for post-conviction relief.
In October 2000, he filed
his first RCr 11.42 motion wherein he claimed ineffective
assistance of counsel.
The trial court’s order denying the
motion was upheld on appeal in an unpublished opinion, 2001-CA000135.
This court subsequently denied his petition for
rehearing, and the Kentucky Supreme Court denied his motion for
discretionary review in January 2003.
Abney next requested a
writ of habeas corpus from the Federal District Court, claiming
that state courts had failed to adequately address his claim of
ineffective assistance.
Again, he was unsuccessful.
Circuit Court of Appeals denied him a certificate of
appealability on April 23, 2004.
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The Sixth
While his first RCr 11.42 was winding its way through
the court system, Abney filed additional motions under Kentucky
Civil Rule (CR) 60.02 (2002), RCr 10.26 (2003), and CR 60.03 and
61.02 (2003).
court.
All of these motions were denied by the trial
Abney opted to appeal from some of the trial court’s
orders, which were upheld by this court.
On September 4, 2004,
Abney filed a second RCr 11.42 motion containing two claims.
He
alleged that the Commonwealth had breached its plea agreement
with him continuing to prosecute his son for arson.
Further, he
claimed that his conviction was invalidated by Kentucky Revised
Statute 506.070(3) which bars conviction of a defendant on a
charge of conspiracy if all of his co-conspirators are
acquitted.
The trial court denied his motion without an
evidentiary hearing, and this appeal followed.
The claims which Abney asserted in his 2004 RCr 11.42
motion have both been raised in previous claims for postconviction relief.
Abney’s claim that his conviction was
invalidated by the jury’s decision to acquit his son was
reviewed in proceedings on his CR 60.02 motion, filed November
1, 2002, and his contention that the Commonwealth breached the
plea agreement was originally raised in his CR 60.03 and 61.02
motion, filed December 11, 2003.
motion is untimely.
Further, his current RCr 11.42
Subsection (10) of the rule requires claims
for relief to be filed within three years of the date on which
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the judgment becomes final.
Abney was sentenced on his guilty
plea on October 18, 1999, and he did not file a direct appeal.
His present RCr 11.42 motion was filed September 4, 2004.
Exceptions to the three-year limit exist for situations where
facts were unknown to the movant within the time limit or where
new rights are created and held to apply retroactively.
Although Abney’s son was not tried for his alleged participation
in the arson until October 2002, we find that an additional time
lapse of two years before Abney filed his current motion for
relief was not warranted.
Thus, Abney’s motion fits within
neither exception to the three-year limit in RCr 11.42(10).
For the foregoing reasons, the judgment of the
Edmonson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
George Russell Abney, Sr.,
Pro se
Burgin, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
George G. Seelig
Assistant Attorney General
Frankfort, Kentucky
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