HAMBLIN (RANDY) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 06-CR-00027
COMMONWEALTH OF KENTUCKY
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BEFORE: MOORE, NICKELL AND STUMBO, JUDGES.
NICKELL, JUDGE: Appellant Randy Hamblin (“Hamblin”) appeals from the
order of the Whitley Circuit Court denying his RCr1 11.42 motion as duplicative.
During a domestic dispute on December 3, 2005, Hamblin discharged
a shotgun in the direction of his partner, grazing her neck with buckshot. On
Kentucky Rules of Criminal Procedure.
February 13, 2006, a grand jury indicted Hamblin charging him with criminal
attempt2 to commit murder,3 and assault in the first degree.4 On September 15,
2006, Hamblin accepted a plea agreement and pleaded guilty to criminal attempt to
commit murder. In return, the Commonwealth dropped the assault charge,
stipulated the attempted murder resulted in non-serious physical injury, and agreed
to recommend a sentence of fifteen years imprisonment. On September 16, 2006,
the circuit court entered judgment in accordance with the Commonwealth’s
On May 7, 2007, Hamblin filed a motion to vacate judgment under
RCr 11.42. The motion claimed counsel’s assistance was ineffective because
counsel: (1) failed to advise him of all available defenses; (2) erroneously applied
the facts to the law; and (3) advised him to plead guilty to a crime the
Commonwealth could not prove. The court denied Hamblin’s 11.42 motion,
noting that during the Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d
274 (1969) hearing Hamblin stated his plea was knowing and voluntary, he was
satisfied with counsel’s performance and he knew what he was doing. Hamblin
did not appeal.
On September 10, 2007, Hamblin filed his second RCr 11.42 motion.
This time he alleged counsel’s assistance was ineffective because counsel failed to:
Kentucky Revised Statutes (KRS) 506.010.
(1) advise the trial court of alleged police misconduct; (2) prepare an “attempt
defense”; and (3) preserve errors for appeal. On September 11, 2007, the circuit
court denied the successive RCr 11.142 motion as duplicative. This appeal
On appeal Hamblin claims: (1) his guilty plea was coerced; (2) a
conspiracy to hide a police officer’s misconduct invalidated his plea; and (3) the
court abused its discretion by denying his motion for an evidentiary hearing.
Because Hamblin’s 11.42 motion was denied without an evidentiary
hearing, our review is “limited to whether the motion on its face states grounds that
are not conclusively refuted by the record and which, if true, would invalidate the
conviction.” Fuston v. Commonwealth, 217 S.W.3d 892, 895 (Ky.App. 2007). As
a reviewing court, we defer to the findings of fact and determinations of credibility
made by the trial court. Commonwealth v. Bussell, 226 S.W.3d 96, 99 (Ky. 2007).
Unless clear error is apparent, we will not disturb the trial court’s findings. Id.
However, we review application of the law de novo. Carroll v. Meredith, 59
S.W.3d 484, 489 (Ky.App. 2001).
Hamblin’s first contention is counsel coerced his plea, but that claim
is not properly before us. Coercion means “to force to act or think in a certain way
by use of pressure, threats, or intimidation; compel.”5 After reviewing Hamblin’s
first RCr 11.42 motion, the trial court determined Hamblin’s plea was knowing and
voluntary – it was not coerced. Thus, the court has already rejected the claim and
The American Heritage Dictionary of the English Language, (4th ed. 2006).
the doctrine of res judicata precludes Hamblin from taking a “second bite at the
apple.” Alvey v. Commmonwealth, 648 S.W.2d 858, 860 (Ky. 1983); Gregory v.
Commonwealth, 610 S.W.2d 598, 600 (Ky. 1980).
Similarly, Hamblin’s second contention is procedurally improper.
Hamblin alleges counsel and the Commonwealth conspired to conceal a “drugs for
sex” relationship between a police officer and the victim, and that their alleged
relationship tainted the charges against him. However, within his motion and
supporting memorandum, Hamblin stipulates the victim told him of the
relationship on the night he attempted to kill her and he rejected the
Commonwealth’s first plea offer because he wanted to expose the relationship at
trial. RCr 11.42(3) states in relevant part: “The motion shall state all grounds for
holding the sentence invalid of which the movant has knowledge.” It is well
established that a claim made in a successive RCr 11.42 motion, which could have
been, but was not, presented in a prior proceeding, will not be considered by this
Court. Butler v. Commonwealth, 473 S.W.2d 108, 109 (Ky. 1971); Case v.
Commonwealth, 467 S.W.2d 367, 369 (Ky. 1971); Hampton v. Commonwealth,
454 S.W.2d 672, 673 (Ky. 1970). Hamblin’s pleadings establish he knew of the
potential issue prior to pleading guilty. Thus, he could have, and should have,
presented the issue to the trial court in his first RCr 11.42 motion. As a result, we
are now precluded from considering his claim. Id.
Hamblin finally contends the trial court abused its discretion by
denying his motion for an evidentiary hearing. However, Hamblin was not
automatically entitled to a hearing. Stanford v. Commonwealth, 854 S.W.2d 742,
744 (Ky. 1993). If the record refutes his claims of error, there is no reason to hold
a hearing. Id. at 743 (citing Glass v. Commonwealth, 474 S.W.2d 400, 401, (Ky.
1971)). Here, the record refuted Hamblin’s first two allegations as being
procedurally improper. Thus, the trial court properly determined no evidentiary
hearing was necessary. Id.
For the forgoing reasons, we affirm the opinion of the Whitley Circuit
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Randy Hamblin, pro se
Sandy Hook, Kentucky
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General