HOLLON (ROBERT) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: AUGUST 8, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 94-CR-00086
COMMONWEALTH OF KENTUCKY
** ** ** ** **
BEFORE: CLAYTON, MOORE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Robert Hollon brings this appeal from an April 18, 2007,
order of the Franklin Circuit Court denying his Kentucky Rules of Criminal
Procedure (RCr) 11.42 motion for postconviction relief. We affirm.
Hollon was found guilty of intentional murder by a jury and was
sentenced to life imprisonment without the possibility of parole or probation for
twenty-five years. The Kentucky Supreme Court affirmed Hollon’s conviction in
Appeal No. 96-SC-382-MR by a memorandum opinion rendered December 17,
1998. Subsequently, Hollon filed a pro se RCr 11.42 motion to vacate sentence in
the Franklin Circuit Court. Hollon was appointed counsel, who filed a
supplemental RCr 11.42 motion. On April 18, 2007, the circuit court denied
Hollon’s RCr 11.42 motion without an evidentiary hearing. This appeal follows.
Hollon contends that the circuit court committed error by denying his
RCr 11.42 motion without an evidentiary hearing. Specifically, Hollon maintains
that he was denied effective assistance of appellate counsel on direct appeal.
Hollon argues that appellate counsel was ineffective for failing to raise sundry
issues in his direct appeal. Hollon acknowledges that the Kentucky Supreme Court
has held that “[i]neffective assistance of appellate counsel is not a cognizable issue
in this jurisdiction.” Lewis v. Com., 42 S.W.3d 605, 614 (Ky. 2001)(citing Hicks
v. Com., 825 S.W.2d 280 (Ky. 1992)). Hollon, however, urges this Court to now
recognize the claim for ineffective assistance of appellate counsel and argues:
The [United States] Supreme Court further
declared that states are free to adopt different procedures
for treating appeals, so long as the procedures adequately
safeguard a defendant’s constitutional right to effective
appellate counsel. The state’s system will satisfy the
Fourteenth Amendment only so long as it provides “a
criminal defendant pursuing a first appeal as of right [the]
minimum safeguards necessary to make that appeal
adequate and effective.” Id., at 276, citing Evitts v.
Lucey, supra, at 392. Implicit in the Supreme Court’s
holdings in both Evits v. Lucey, supra, and Smith v.
Robbins, supra, is that the states must have in place a
Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1984).
Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed 2d 756 (2000).
constitutionally adequate procedure through which
criminal defendants can present claims of ineffective
assistance of appellate counsel in state court. A right
without a remedy is not a right at all. Thus, it is critical
that this mechanism exist in state courts, including those
in Kentucky, so as to give actual effect to a criminal
defendant’s Fourteenth Amendment right to effective
assistance of counsel on appeal. Kentucky’s longstanding approach of refusing to consider a defendant’s
right to effective assistance of appellate counsel in state
court clearly violates the Fourteenth Amendment.
Hollon’s Brief at 9.
Although Hollon advances an eloquent and persuasive argument,
presumably in reliance on Smith v. Robbins, 528 U.S. 259, the Court of Appeals, as
an intermediate appellate court, is bound by Supreme Court precedent. Rules of
the Supreme Court 1:030(8)(a). As such, we are compelled to follow Supreme
Court precedent that a claim for ineffective assistance of appellate counsel is not
recognized in this Commonwealth. See Lewis, 42 S.W.3d 605. However, we are
free to question the soundness and continued validity of such precedent. See
Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). 3 Accordingly, we
We point out that Supreme Court precedent upon the issue of ineffective assistance of
appellate counsel has previously been called into question. In Lofton v. Commonwealth, Appeal
No. 2005-CA-001550-MR, Judge Minton elaborated upon what he termed as a “seemingly
contrary position” held by the Supreme Court upon this issue:
As discussed in our original opinion, the United States
Supreme Court held in Smith v. Robbins that a claim of ineffective
assistance of appellate counsel would be reviewed under the
familiar standards used for claims involving ineffective assistance
of trial counsel. Although we interpreted that holding logically to
infer that the Fourteenth Amendment requires that counsel
involved in a convicted defendant's direct, matter of right appeal
perform effectively, the Supreme Court did not expressly so hold.
But in Evitts v. Lucey, issued before Smith v. Robbins, the Supreme
Court did definitively hold that “[a] first appeal as of right
therefore is not adjudicated in accord with due process of law if the
encourage the Supreme Court to revisit this issue given that Lewis did not address
the application of Smith v. Robbins, 528 U.S. 259. Lewis, 42 S.W.3d 605.
In sum, we are of the opinion that the circuit court correctly denied
Holland’s RCr 11.42 motion to vacate sentence.
For the foregoing reasons, the order of the Franklin Circuit Court is
BRIEFS AND ORAL ARGUMENT
BRIEF FOR APPELLEE:
Attorney General of Kentucky
Amy Robinson Staples
Assistant Public Advocate
Department of Public Advocacy
Perry T. Ryan
Assistant Attorney General
appellant does not have the effective assistance of an attorney.”
Regardless, the Kentucky Supreme Court recently reaffirmed its
longstanding, seemingly contrary position when it held that
“[i]neffective assistance of appellate counsel is not a cognizable
issue in this jurisdiction.”
In his supplemental brief, Lofton contends that we
interpreted Smith v. Robbins and its predecessors correctly,
meaning that his claims of ineffective assistance of appellate
counsel must be cognizable. Despite our concerns about the
continued viability of our state rule that ineffective assistance of
counsel is not cognizable, as an intermediate appellate court, we
are bound by the precedents established by the Kentucky Supreme
Court. So under the clearly articulated precedent of the Kentucky
Supreme Court, Lofton's claims of ineffective assistance of counsel
are not cognizable. (Footnotes omitted.)
ORAL ARGUMENT FOR
Perry T. Ryan
Assistant Attorney General