HAMILTON (ERIK) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: AUGUST 29, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE CLAYTON, JUDGE
ACTION NO. 94-CR-002621
COMMONWEALTH OF KENTUCKY
** ** ** ** **
BEFORE: DIXON AND WINE, JUDGES; HENRY,1 SENIOR JUDGE.
WINE, JUDGE: Erik Hamilton appeals from an order entered by the Jefferson
Circuit Court denying him relief from a prison sentence under Kentucky Rules of
Criminal Procedure (RCr) 11.42. Having concluded that the trial court did not
abuse its discretion in denying Hamilton relief, we affirm.
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
Hamilton was indicted in November 1994 on one count of murder
(Kentucky Revised Statutes (KRS) 507.020), one count of attempted murder (KRS
506.010), one count of carrying a concealed deadly weapon (KRS 527.020), and
two counts of using restricted ammunition during the commission of a crime (KRS
527.080). These charges stemmed from an incident on October 26, 1994, in which
Hamilton shot and killed Derek Newman.
In January 1996, Hamilton pled guilty to the charges of manslaughter
in the first degree, wanton endangerment, and using restricted ammunition during a
crime. Hamilton’s plea included ten years for the manslaughter charge, and twenty
years for the ammunition charge, to be served consecutively for a total of thirty
years in prison. Hamilton also received one year on the wanton endangerment
charge, to run concurrently with the other sentences. Under the terms of the
agreement, Hamilton was not eligible for shock probation and agreed to testify
truthfully against any individuals indicted as a result of his testimony. A judgment
of conviction detailing the above plea was entered March 18, 1996.
Three years after his conviction on March 23, 1999, Hamilton filed
his first Kentucky Rules of Civil Procedure (CR) 60.02 motion, pro se, to alter,
amend, or vacate his sentence. In that motion, Hamilton argued that KRS 527.080,
the statute criminalizing the use of restricted ammunition in the commission of a
crime, contained a factual inaccuracy. As a result, he contended that the
indictment failed to state a public offense with respect to this charge. The trial
court denied the motion, finding that the indictment properly charged Hamilton
with a public offense under KRS 527.080. The trial court further found that
Hamilton failed to challenge the sufficiency of the statutory definitions of “black
talon” and “flanged” ammunition. This Court affirmed the trial court’s denial of
the motion. Hamilton v. Commonwealth, 1999-CA-001317-MR.
Hamilton was released on bond in 2001. However, an arrest warrant
was issued for Hamilton on February 26, 2003, when he did not return to custody.
He was arrested on that warrant on January 9, 2004.
Thereafter, Hamilton, through counsel, filed a second CR 60.02
motion raising essentially the same issues in his first CR 60.02 motion. An
additional argument Hamilton included was that the prosecutor and his defense
counsel both advised him at his plea hearing that the ammunition statute was
accurate. The trial court denied his subsequent CR 60.02 for the same reasoning
his first CR 60.02 was denied and concluded that Hamilton’s plea was knowing
and intelligent. In its order denying, the trial court noted that it reviewed the guilty
plea hearing. Hamilton appealed to this Court but the case was eventually
dismissed. See Hamilton v. Commonwealth, 2005-CA-000008-MR.
Hamilton filed a petition for habeas corpus relief in the Muhlenberg
Circuit Court on December 29, 2005. The record from the habeas proceeding was
not made a part of the record on appeal. The trial court denied his claims stating
that the issues raised should have been made on direct appeal and that habeas
corpus was not an appropriate vehicle for his claims. This Court affirmed the
denial of his petition on May 8, 2006. Discretionary review was denied on August
Hamilton filed this pro se RCr 11.42 motion on June 5, 2006. In
addition, Hamilton sought an evidentiary hearing and appointment of counsel. The
trial court denied Hamilton’s RCr 11.42 motion because it was untimely, involved
issues already presented and rejected, and Hamilton failed to show that his counsel
was ineffective. In a separate order, the trial court also denied Hamilton’s request
for an evidentiary hearing and appointment of counsel. This appeal followed.
On appeal, Hamilton argues that the trial court erred by determining
his motion was untimely and failing to grant an evidentiary hearing. Hamilton
concedes that his motion is untimely but asserts that he is entitled to application of
the exception to the three-year limitations period outlined in RCr 11.42(1)(2)(3)
and (10)(a) and (b). This rule provides that a motion to vacate, set aside or correct
sentence shall be filed within three years after the judgment becomes final unless
the facts upon which the claim is predicated were unknown and could not have
been ascertained by the exercise of due diligence. Hamilton asserts that the trial
court should have excused his untimely motion by application of equitable tolling
to his case as he was mostly a pro se litigant the years between his judgment and
the filing of his RCr 11.42 motion. See Robertson v. Commonwealth, 177 S.W.3d
789 (Ky. 2005). We disagree.
Hamilton’s RCr 11.42 motion was filed June 5, 2006, ten years after
judgment was entered on March 18, 1996. Hamilton was represented by counsel
throughout a significant portion of his two CR 60.02 motions. Most significantly,
the facts in support of his constitutional claims have been known to Hamilton since
at least the time when he filed his second CR 60.02 motion where he first alleges
that his counsel misinformed him about the ammunition statute. Thus, Hamilton
was aware of all the facts set forth in support of his motion for RCr 11.42 relief.
In addition to this motion being untimely, we agree with the trial court
that Hamilton’s motion fails on the merits. Hamilton has not set forth actions
taken by his counsel in securing his plea bargain that would indicate to this Court
that they were either inefficient or that the outcome of his case would have been
any different had he not entered a guilty plea. See Centers v. Commonweath, 799
S.W.2d 51, 55 (Ky. App. 1990), citing Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In fact, Hamilton faced a potential
sentence far greater than the time he received by virtue of his bargained-for plea
agreement. He also received the benefit of amended/dismissed charges and parole
eligibility in a substantially diminished amount of time. Regardless of Hamilton’s
assertions to the contrary, the issues set forth in his motion have been heard and
disposed of properly.
Since we agree with the trial court’s conclusion that the record on its
face refuted the allegations made in Hamilton’s RCr 11.42 motion, it follows that
the court did not err by failing to appoint counsel below. RCr 11.42(5). See
Fraser v. Commonwealth, 59 S.W.3d 448, 453 (Ky. 2001). Finally, given the
absence of any “material issue of fact that cannot be determined on the face of the
record,” RCr 11.42(5), the trial court did not err by denying Hamilton’s request for
an evidentiary hearing.
Accordingly, the judgment of the Jefferson Circuit Court is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
David S. Mejia
Attorney General of Kentucky
Matthew Robert Krygiel
Assistant Attorney General