LARRY DUKES v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED:
AUGUST 25, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002662-MR
LARRY DUKES
v.
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
ACTION NO. 96-CR-00229
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND JOHNSON, JUDGES; HUDDLESTON,1 SENIOR JUDGE.
JOHNSON, JUDGE:
Larry Dukes, pro se, has appealed from the
November 12, 2004, order of the Hopkins Circuit Court which
denied his pro se motion to vacate judgment pursuant to CR2
60.02, without holding an evidentiary hearing.
1
Having concluded
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 Kentucky Revised Statutes (KRS) 21.580.
2
Kentucky Rules of Civil Procedure.
that the trial court did not abuse its discretion by denying
Dukes relief, we affirm.
Because Dukes directly appealed his life sentence to
the Supreme Court of Kentucky,3 which upheld the conviction and
sentence, we quote the pertinent facts of this case from its
Opinion as follows:
[Dukes] was convicted in the Hopkins
Circuit Court of eleven counts of indecent
or immoral practices with a child under 15
years of age, two counts of first-degree
sodomy, and two counts of rape of a child
under 12 years of age. He received a life
sentence on each count of rape, a 20-year
sentence on each count of first degree
sodomy, and a 10-year sentence on each count
of indecent or immoral practices with a
child under 15, with all sentences to run
consecutively for a total of life
imprisonment. [Dukes] now appeals to this
Court as a matter of right. . . .
[Dukes] was indicted on 110 counts for
criminal sex acts he allegedly committed on
his stepchildren, T.S. and B.G., from August
of 1971 to January of 1976. [Dukes] was
tried on June 3, 1997. At the close of the
Commonwealth’s case, defense counsel moved
for a directed verdict on the grounds that
the Commonwealth had failed to establish
with sufficient specificity the times,
dates, and location of the alleged sexual
acts. The trial court sustained defense
counsel’s motion to the extent that it
dismissed 95 counts of the indictment and
allowed only 15 counts to be submitted to
the jury.
The Supreme Court Opinion became final on November 5, 1998.
3
Case No. 1997-SC-0594-MR, rendered October 15, 1998, not-to-be published.
-2-
On July 9, 1999, Dukes filed a pro se motion to
vacate, set aside, or correct his sentence pursuant to RCr4
11.42.
The Commonwealth filed its objections to Dukes’s RCr
11.42 motion on July 19, 1999.
On October 5, 1999, Dukes filed
a motion for appointment of counsel and a request for an
evidentiary hearing.
The trial court, without appointing
counsel or holding an evidentiary hearing, denied Dukes’s RCr
11.42 motion on September 7, 2000.5
Dukes appealed the denial to
this Court,6 which affirmed the trial court’s order in a nonpublished opinion rendered on March 15, 2002.
Dukes filed for
discretionary review with the Supreme Court, which was denied on
August 14, 2002.
The Court of Appeals Opinion became final on
August 28, 2002.7
Thereafter, on August 13, 2004, Dukes filed a motion
to vacate judgment pursuant to CR 60.02(e) and (f),8 as well as a
4
Kentucky Rules of Criminal Procedure.
5
On September 16, 1999, this case was held in abeyance upon request by Dukes
so he could hire counsel. It was returned to the active docket on February
11, 2000, without Dukes having hired counsel.
6
Case No. 2000-CA-002202-MR.
7
In its brief, the Commonwealth alludes to Dukes’s filing of a petition for
writ of habeas corpus in the United States District Court, Western District
of Kentucky, and attaches several pleadings in that case in its appendix.
8
CR 60.02(e) and (f) provide:
On motion a court may, upon such terms as
are just, relieve a party or his legal
representative from its final judgment, order,
or proceeding upon the following grounds: . . .
(e) the judgment is void, or has been
satisfied, released, or discharged, or a prior
-3-
motion for a full evidentiary hearing and a motion for
appointment of counsel.
motion:
Dukes argued two claims of error in the
(1) that trial counsel did not raise the issue of his
mental incompetency; and (2) that his RCr 11.42 motion was
improperly dismissed.
August 16, 2004.
The Commonwealth filed its response on
On August 23, 2004, Dukes filed a reply to the
Commonwealth’s objections, wherein he raised three additional
claims of error that had been raised and addressed in his RCr
11.42 motion.9
On September 23, 2004, Dukes filed a motion
requesting that he be allowed to formally supplement his CR
60.02 motion with the three additional grounds as raised in his
reply.
The trial court, without ruling on the motion to
supplement and without holding an evidentiary hearing, denied
Dukes’s CR 60.02 motion on November 12, 2004.
This appeal
followed.
On appeal, Dukes claims that the trial court erred in
denying his CR 60.02 motion to his prejudice and denied him due
process of law for the following reasons: (1) trial counsel
failed to request a competency hearing; (2) the trial court
judgment upon which it is based has been
reversed or otherwise vacated, or it is no
longer equitable that the judgment should have
prospective application; or (f) any other
reason of an extraordinary nature justifying
relief. . . .
9
These claims related to trial counsel’s failure to call an expert witness,
trial counsel’s failure to impeach medical records, and trial counsel’s
failure to object to the use of notes by certain witnesses during their
testimony.
-4-
erred in trying him for pre-penal code and post-penal code
crimes at the same time; (3) the trial court erred by allowing
the Commonwealth to question witnesses without him being
present; (4) trial counsel was ineffective for failing to call
an expert witness; (5) trial counsel was ineffective for failing
to impeach certain medical records; (6) trial counsel was
ineffective for failing to object to the witnesses use of notes
during testimony; and (7) appellate counsel was ineffective for
failing to raise various issues in post-conviction proceedings.
In Gross v. Commonwealth,10 our Supreme Court set forth
a detailed, sequential procedure governing post-conviction
proceedings.
The Court stated that “[t]he structure provided in
Kentucky for attacking the final judgment of a trial court in a
criminal case is not haphazard and overlapping, but is organized
and complete.”11
The Supreme Court subsequently held in McQueen
v. Commonwealth,12 that a criminal defendant must first bring a
direct appeal when available, and only then should he utilize
the provisions of RCr 11.42 by addressing every error of which
he was (or should have been) aware.13
10
648 S.W.2d 853 (Ky. 1983).
11
Id. at 856.
12
948 S.W.2d 415 (Ky. 1997).
13
Id. at 416.
-5-
The Court emphasized that
CR 60.0214 relief is “special, extraordinary relief” and “is not
a separate avenue of appeal to be pursued in addition to other
remedies, but is available only to raise issues which cannot be
raised in other proceedings.”15
Our review of the trial court’s
decision is based on an abuse of discretion standard and we will
affirm its decision unless there is a showing of some “flagrant
miscarriage of justice.”16
Thus, Dukes is precluded from raising any issues in a
CR 60.02 motion that reasonably could have been presented in an
RCr 11.42 motion.
All of the issues Dukes now raises are issues
that were apparent at the time the judgment was entered against
him, or when Dukes’s other motions collaterally attacking the
judgment were made.
As for Dukes’s general claim of ineffective assistance
of appellate counsel, the law as stated by our Supreme Court in
Lewis v. Commonwealth,17 is that “[i]neffective assistance of
14
The Court in Gross, 648 S.W.2d at 856, stated:
Rule 60.02 is part of the Rules of Civil
Procedure. It applies in criminal cases only
because Rule 13.04 of the Rules of Criminal
Procedure provides that “the Rules of Civil
Procedure shall be applicable in criminal
proceedings to the extent not superseded by or
inconsistent with these Rules of Criminal
Procedure.”
15
McQueen, 948 S.W.2d at 416.
16
Gross, 648 S.W.2d at 858.
17
42 S.W.3d 605, 612 (Ky. 2001).
-6-
counsel is not a cognizable issue in this jurisdiction.”
Further, our Supreme Court has stated:
We think there is a substantial
difference in the situation of a convicted
defendant for whom no appeal was ever taken
or one 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.18
Accordingly, we will not further examine any claims on appeal
that have previously been reviewed, considered, and decided, or
which should have been.
In addition to challenging the trial court’s rejection
of his various claims, Dukes contends the trial court erred in
failing to conduct an evidentiary hearing on his CR 60.02
motion.
As with an RCr 11.42 motion, a movant is not
automatically entitled to an evidentiary hearing on a CR 60.02
motion unless there is an issue of fact which cannot be
determined on the face of the record.19
“Where the movant’s
allegations are refuted on the face of the record as a whole, no
evidentiary hearing is required.”20
As the following discussion
of each of Dukes’s claims demonstrates, each allegation is
18
Hicks v. Commonwealth, 825 S.W.2d 280, 281 (Ky. 1992).
19
Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
20
Sparks v. Commonwealth, 721 S.W.2d 726 (Ky.App. 1986) (citing Hopewell v.
Commonwealth, 687 S.W.2d 153, 154 (Ky.App. 1985)).
-7-
refuted on the face of the record.
Thus, Dukes was not entitled
to an evidentiary hearing.
For the foregoing reasons, the order of the Hopkins
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Larry Dukes, Pro Se
Fredonia, Kentucky
Gregory D. Stumbo
Attorney General
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
