HENSLEY (MICHAEL JOE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
MICHAEL JOE HENSLEY
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 04-CR-00133
COMMONWEALTH OF KENTUCKY
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BEFORE: CAPERTON AND VANMETER, JUDGES; GUIDUGLI,1 SENIOR
GUIDUGLI, SENIOR JUDGE: After a trial by jury, Michael Joe Hensley was
convicted of possession of methamphetamine in violation of Kentucky Revised
Statute (KRS) 218A.1432. He was also found to be in possession of a firearm in
violation of KRS 218A.992 and his sentence was enhanced to a term of twenty
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
years. The Kentucky Supreme Court affirmed the convictions and sentence after a
matter of right appeal. Hensley then filed a motion pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42 seeking to invalidate the convictions. That
request was denied by the trial court and Hensley then sought a reconsideration of
that ruling pursuant to Kentucky Rules of Civil Procedure (CR) 59.05, which was
Hensley then tendered a notice of appeal from the denial of his
original RCr 11.42 motion and included a request to proceed in forma pauperis.
The trial court denied the request, finding the required affidavit of indigence
insufficient. Hensley then appealed that decision to this Court, where it was
dismissed as being filed untimely. Then, on April 13, 2007, he filed a second RCr
11.42 motion with the trial court. That motion was overruled on April 27, 2007,
and this appeal followed.
Although Hensley argues a number of issues in his brief, the only
question before us is whether the trial court erred when it dismissed the successive
RCr 11.42 motion without a hearing. We find no error and affirm the order of the
Whitley Circuit Court.
“[W]hen a prisoner fails to appeal from an order overruling his motion
to vacate judgment or when his appeal is not perfected or is dismissed, he should
not be permitted to file a subsequent motion to vacate . . .” Lycans v.
Commonwealth, 511 S.W.2d 232, 233 (Ky. 1974). We will not review duplicative
motions pursuant to RCr 11.42 “stating grounds that have or should have been
presented earlier.” Hampton v. Commonwealth, 454 S.W.2d 672, 673 (Ky. 1970).
We find nothing in the record or Hensley’s second motion pursuant to RCr 11.42
that is new or which could not have been presented previously.
The judgment of the Whitley Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael Joe Hensley, pro se
West Liberty, Kentucky
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General