STEVE MOORE V. COMMONWEALTH OF KENTUCKY
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2004-SC-0550-DG
STEVEN MOORE
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2003-CA-751
DAVIESS CIRCUIT COURT
97-CR-235, 97-CR-344 AND 97-C R-356
V
COMMONWEALTH OF KENTUCKY
AND
2004-SC-0552-DG
DOUGLAS HAWKINS
V
APPELLEE
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2003-CA-1394
WOLFE CIRCUIT COURT
97-CR-26
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING NO. 2004-SC-0550-DG,
AND
REVERSING AND REMANDING NO . 2004-SC-0552-DG
Because these two appeals present the same two principal issues in different
factual contexts, we address them in a single opinion . The principal issues
are whether an appellate court may permit a criminal defendant to file a belated appeal
from the denial of a collateral attack against a conviction or sentence and, if so, under
what circumstances it may do so. No. 2004-SC-0550-DG presents the additional issue
of the effect of a mistaken notation on the clerk's docket with respect to the manner of
service of notice of entry.
I. NO. 2004-SC-0550-DG .
On October 26, 1998, Steven Moore pled guilty in the Daviess Circuit Court to
three counts of rape in the second degree, three counts of sodomy in the second
degree, two counts of wanton endangerment in the first degree, and one count of
escape in the second degree, for which he was sentenced to a total of ten years in
prison . Final judgment was entered on December 4, 1998.
On December 5, 2001, Moore filed a pro se RCr 11 .42 motion to vacate his pleas
and sentences on grounds of ineffective assistance of counsel, alleging that at the time
he entered his pleas he was under the influence of Melleril, a psychotropic medication,
which rendered his pleas involuntary; and that, on advice of counsel, he lied to the trial
court about having ingested any such medication . In addition to the RCr 11 .42 motion,
Moore filed a motion to proceed in forma pauperis and a motion for appointment of
counsel . In an opinion and order entered on January 24, 2002, the trial court overruled
all of the motions without an evidentiary hearing . Specifically, the trial court quoted
Appellant's sworn testimony from the transcript of his Boykin hearing, Boykin v.
Alabama , 395 U.S. 238, 240-41, 89 S.Ct. 1709, 1711, 23 L. Ed.2d 274 (1969), that he
had, indeed, ingested Melleril that morning but that his mind was clear. The trial court
further noted that Appellant had filed his motion outside the three-year period of
limitations prescribed by RCr 11 .42(10).'
On May 2, 2002, Moore filed a notice of appeal from the order overruling his
post-conviction motions, as well as a designation of record, a motion to proceed in
forma gauperis on appeal, and a motion for appointment of counsel. On May 13, 2002,
the trial court granted the motion to proceed in forma pauperis and appointed the
Department of Public Advocacy ("DPA") to represent Moore on appeal . On June 3,
2002, the Court of Appeals entered an order requiring Moore to show cause why his
appeal should not be dismissed on grounds that it was not timely filed. RCr 12 .04(3)
(notice of appeal to be filed within 30 days after date of entry of judgment or order from
which taken) . Receiving no response to the show-cause order, the Court of Appeals
dismissed the appeal on August 15, 2002 . Moore filed a motion for reconsideration on
August 26, 2002. CR 76.38(2) . The motion was denied by an order of March 6, 2003,
which also contained the notation : "This Court suggests that appellant file a motion for
belated appeal ."
.
On April 8, 2003, Moore filed a motion for belated appeal, stating that he
"erroneously believed that an appeal was automatic from the denial of his 11 .42 motion
and that he did not understand until a later conversation with inmate legal aid,
whereupon he immediately tendered a notice of appeal." On April 21, 2004, the Court
of Appeals denied the motion for belated appeal on grounds that "appeals from
collateral matters, such as motions for RCr 11 .42 relief, do not fall within the criteria for
belated appeals set out in Commonwealth v. Wine , Ky., 694 S .W.2d 689 (1985) ." On
' Appellant did not allege any facts that might have caused an equitable tolling of the
period of limitations. See Robertson v. Commonwealth , 177 S .W.3d 789 (Ky. 2005) .
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June 18, 2004, the Court of Appeals overruled a motion to reconsider the April 21,
2004, order, citing Merrick v. Commonwealth, 132 S .W.3d 220 (Ky. App. 2004).
II . NO. 2004-SC-0552-DG .
On September 4, 1997, a Wolfe Circuit Court jury convicted Appellant, Douglas
Hawkins, of murder, for which he was sentenced to twenty years in prison . On June 17,
1999, this Court affirmed both his conviction and sentence. On August 1, 2001,
Hawkins filed a pro se RCr 11 .42 motion to vacate his judgment and sentence on
grounds of ineffective assistance of counsel, and a motion for appointment of counsel
and an evidentiary hearing . The trial court appointed the DPA to represent Hawkins
and held an evidentiary hearing on the RCr 11 .42 motion. On May 8, 2003, the trial
court entered an opinion and order overruling the RCr 11 .42 motion . Hawkins directed
his counsel to file an appeal from that order. On May 23, 2003, counsel attempted to
file a notice of appeal by placing it in the United States mail, but mistakenly addressed
the notice to the Breathitt Circuit Clerk instead of to the Wolfe Circuit Clerk. Before the
mistake could be corrected, the time for filing the appeal had expired . On July 7, 2003,
Hawkins filed a motion in the Court of Appeals for permission to file a belated appeal.
On February 10, 2004, the Court of Appeals, as in No . 2004-SC-0550-DG, denied the
motion on grounds that "appeals from collateral proceedings do not fall within the
criteria for belated appeals set out in Commonwealth v. Wine, Ky., 694 S .W.2d 689
(1985) ." On June 17, 2004, also as in No . 2004-SC-0550-DG, the Court of Appeals
overruled Hawkins's motion for reconsideration, citing Merrick v. Commonwealth , 132
S.W .3d 220 (Ky. App. 2004) .
III . CONSTITUTIONAL RIGHT TO COUNSEL AND APPEAL.
Although a state is not obliged to provide any appeal at all for persons convicted
of criminal offenses, McKane v. Dunston , 153 U.S . 684, 688, 14 S .Ct. 913, 915, 38
L.Ed. 867 (1894), if a state does provide for an appeal, it must afford the same rights to
indigents as are afforded to other appellants, Griffin v. Illinois , 351 U.S. 12, 17, 76 S .Ct.
585, 590, 100 L.Ed. 891 (1956), including the right to counsel . Douglas v. California,
372 U .S. 353, 356, 83 S.Ct. 814, 816, 9 L.Ed .2d 811 (1963). In Evitts v. Lucey, 469
U .S . 387, 105 S .Ct. 830, 83 L.Ed .2d 821 (1985), the U.S . Supreme Court held that the
right to counsel on appeal includes the right to effective assistance of counsel . Id. at
396-97, 105 S.Ct . at 836-37 (affirming issuance of writ of habeas corpus in Kentucky
case where the first appeal had been dismissed because of counsel's failure to file
statement of appeal as then required by Ky. R. App. P. 1 .090) .
There is also no constitutional requirement that a state provide relief from
conviction or sentence by way of collateral attack, United States v. MacCollom, 426
U.S . 317, 323, 96 S.Ct. 2086, 2090-91, 48 L.Ed .2d 666 (1976), though if a state does
provide for such relief, it cannot deny a defendant full access to that relief, including the
right to appeal, solely because the defendant is indigent. Lane v. Brown, 372 U.S. 477,
484-85, 83 S.Ct. 768, 773, 9 L.Ed.2d 892 (1963) (cost of transcripts to enable appeal
from denial of writ of error coram nobis); Smith v. Bennett, 365 U.S . 708, 712-14, 81
S .Ct. 895, 897-98, 6 L.Ed .2d 39 (1961) (filing fee to file petition for writ of habeas
corpus). However, both Douglas and Evitts pointed out that the constitutional right to
counsel, and, concomitantly, to effective assistance of counsel, is limited to a first direct
appeal from a judgment of conviction and not to discretionary appeals or appeals from
collateral attacks. Douglas, 372 U.S . at 356-57, 83 S .Ct. at 816; Evitts , 469 U.S. at 396
n .7, 105 S .Ct. at 836 n.7. See also Murray v. Giarratano , 492 U .S. 1 ; 8, 109 S .Ct. 2765,
2769, 106 L.Ed.2d 1 (1989) (no constitutional right to counsel to pursue collateral
attack) ; Pennsylvania v. Finley, 481 U .S. 551, 555,107 S.Ct. 1990, 1993, 95 L.Ed.2d
539 (1987) (same) ; Ross v. Moffitt , 417 U .S. 600, 612, 94 S.Ct. 2437, 2445, 41 L.Ed.2d
341 (1974) (no constitutional right to counsel to pursue discretionary review or writ of
certiorari) . The articulated rationale behind the distinction between direct first appeals
and discretionary appeals or appeals from collateral attacks is that by the time a
criminal defendant files a motion for discretionary review or a collateral attack, the
defendant will have a transcript or other record of trial proceedings, access to briefs filed
in the first appeal, and an opinion of an appellate court explaining the issues raised and
decided on the first appeal. These materials, plus whatever submissions the movant
provides pro se, will usually provide the court with a basis for ruling on the discretionary
motion or collateral attack . Ross, 417 U .S. at 615, 94 S.Ct . at 2446 .
The concepts of a belated appeal and/or a reinstated appeal arose in response
to the U.S. Supreme Court's holdings in Douglas and Evitts . The issue then became
how and where relief from a lost appeal due to ineffective assistance of counsel should
be granted, i .e . , by motion in the court with appellate jurisdiction over the case or by a
separate RCr 11 .42 motion in the trial court?
In Commonwealth v. Wine, 694 S .W.2d 689 (Ky. 1985), we undertook a
comprehensive analysis of this issue, noting that our previous cases had "blown hot and
cold on the subject." Id. at 692. Wine's matter-of-right appeal from a judgment of
conviction had been dismissed because of appointed counsel's failure to timely file a
brief. He then filed an RCr 11 .42 motion to vacate the conviction and sentence and to
enter a new judgment from which a new appeal might be prosecuted. This procedure
had been approved in Hammershoy v. Commonwealth, 398 S .W.2d 883, 884 (Ky.
1966), then seemingly disapproved in Cleaver v. Commonwealth, 569 S.W.2d 166, 169
(Ky. 1978), and then reapproved in Stahl v. Commonwealth , 613 S .W.2d 617, 618 (Ky.
1981). In Wine, we distinguished between a reinstatement of a dismissed appeal that
had been timely filed and a belated appeal where a timely notice of appeal had never
been filed . Id. at 693-94 . Although Wine involved a reinstated appeal, the case
essentially held that if the right to a first appeal is lost because of ineffective assistance
of counsel, whether because the notice of appeal was not timely filed or because the
appeal was dismissed for, etc . , counsel's failure to file a brief, then the appeal must be
allowed or reinstated unless the client agreed to, condoned, or contributed to the
dismissal .
[I]t cannot be doubted that the failure of counsel to file a brief which results
in the dismissal of an appeal constitutes ineffective assistance . It is as if
no appeal had been taken . In such a case, the appeal must be reinstated
unless the conduct has been condoned by, agreed to, or is in some way
attributa ble to the client.
Id. at 695 (emphasis added) . Wine also held that the appellate court with jurisdiction to .
hear the appeal was the only court with jurisdiction to grant a reinstated or belated
appeal. Id. at 694.
In Merrick v. Commonwealth , 132 S.W.3d 220 (Ky. App. 2004), the Court of
Appeals held that Wine applied to an appeal from a denial of a motion to proceed on
direct first appeal in forma aauperis and granted the appellant's pro se motion for a
belated appeal from that denial. See CR 73.02(1)(b) (appeal from denial of motion must
be filed within ten days) ; Gabbard v. Lair, 528 S.W.2d 675, 677-78 (Ky. 1975) .
However, it then digressed into obiter dictum, noting that "[i]t has come to the attention
of the Court that there appears to be considerable confusion as to the proper scope to
be accorded the belated appeal procedure outlined in the opinion of the Kentucky
Supreme Court in Commonwealth v. Wine, Ky., 694 S.W.2d 689 (1985)," and used
Merrick as a vehicle to address whether a belated appeal could be granted from the
denial of relief in collateral proceedings, such as RCr 11 .42 motions . Merrick , 132
S.W.3d at 220-21 . After analyzing Wine and the United States Supreme Court cases
discussed su ra, it concluded that there could be no belated appeal in such a case.
It thus becomes apparent that the bedrock of the belated appeal
procedure delineated in Wine is the preservation of an indigent criminal
defendant's right to the one appeal guaranteed in the Kentucky
Constitution from loss occasioned by ineffective assistance provided by
his counsel . In other words, the belated appeal procedure is available
I in situations in which an appellant in a criminal case loses the direct
appeal of his conviction through the denial of the effective assistance of
counsel to which he is entitled as a matter of due process .
. . . [T]his strict application of the Wine criteria will result in the
denial of belated appeal motions in collateral proceedings, such as in the
context of motions for RCr 11 .42 relief, appeals from probation revocation
proceedings, motions to clarify sentence and the like . . . .
Id. at 221 .
IV. STATUTORY RIGHT TO COUNSEL AND APPEAL.
The flaw in Merrick's reasoning was its failure to recognize that the reason Wine
focused solely on constitutional issues was that it involved only the denial of a first
appeal because of ineffective assistance of counsel, thus falling squarely within the
constitutional parameters of Douglas and Evitts . Wine was not required to address
whether the loss of a statutory right of appeal because of counsel error would justify
granting a reinstated or belated appeal . KRS 22A .020(1) provides :
Except as provided in Section 110 of the Constitution, an appeal may be
taken as a matter of right to the Court of Appeals from any conviction, final
judgment, order, or decree in any case in Circuit Court, . . . unless such
conviction, final judgment, order, or decree was rendered on an appeal
from a court inferior to Circuit Court.
(Emphasis added.) This statute was previously compiled at KRS 21 .140(1) and, before
that, codified at Section 334 of the Criminal Code of Practice . In Commonwea lth v.
Schumacher, 566 S .W.2d 762 (Ky. App . 1978), the Court of Appeals held that the
portion of KRS 22A .020(4) that requires the Attorney General's approval before a
prosecutor can appeal a ruling of a circuit court to the Court of Appeals is
unconstitutional as an infringement of the Kentucky Supreme Court's constitutional
authority to prescribe rules governing practice and procedure in the Court of Justice . Id.
at 764 (construing Ky. Const. § 116). However, in Commonwealth v. Bailey , 71 S.W.3d
73 (Ky. 2002), we noted that the Judicial Amendment authorized the General Assembly
to prescribe the appellate jurisdiction of the newly created Court of Appeals. Id. at 77;
see also Ky. Const. § 111(2) ("In all other cases, [the Court of Appeals] shall exercise
appellate jurisdiction as provided by law.") . KRS 22A.020(1) purports to confer
jurisdiction only upon the Court of Appeals, thus does not affect Section 116 ("The
Supreme Court shall have the power to prescribe rules governing its appellate
jurisdiction . . . ." (Emphasis added.)) . Thus, in addition to the constitutional right to "at
least one appeal to another court," Ky. Const. § 115 (emphasis added), the General
Assembly has created a statutory matter-of-right appeal to the Court of Appeals from
any order of a circuit court. McIntosh v. Commonwealth , 368 S.W.2d 331, 335 (Ky.
1963) (construing former KRS 21 .140(1)).
In Commonwealth v. Stamps, 672 S.W.2d 336 (Ky. 1984), we recognized that
RCr 11 .42 creates a conditional right to counsel, and that KRS 31 .110 authorizes
appointment of counsel in such a proceeding if the person seeking relief is a "needy
person." Id . at 339 . Specifically, RCr 11 .42(5) provides, inter alia :
If the answer raises a material issue of fact that cannot be determined on
the face of the record the court shall grant a prompt hearing and, if the
movant is without counsel of record and if financially unable to employ
counsel, shall upon specific written request by the movant appoint counsel
to represent the movant in the proceeding, including appeal .
(Emphasis added.) KRS 31 .110 provides, inter alia:
(1) A needy person who is being detained by a law enforcement officer . .
is entitled:
(a) To be represented by an attorney to the same extent as a
person having his own counsel is so entitled ; . . . .
(2) A needy person who is entitled to be represented by an attorney under
subsection (1) of this section is entitled:
(c) To be represented in any other post-conviction
proceeding,
that the attorney and the needy person considers [sic]
appropriate . However, if the counsel appointed in such post
conviction . . . remedy, with the court involved , determines that
it is not a proceeding that a reasonable person with adequate
means would be willing to bring at his own expense, there shall
be no further right to be represented by counsel under the
provisions of this chapter.
(Emphasis added .) We construed these two provisions together in Fraser v.
Commonwealth , 59 S.W.3d 448 (Ky. 2001), and concluded that "RCr 11 .42(5)
establishes when a judge must appoint counsel for an indigent movant and that KRS
31 .110(2)(c) establishes when the DPA may provide legal services even without judicial
appointment." Id . at 456 (overruling Commonwealth v. Ives, 599 S.W.2d 456, 457 (Ky.
1980), insofar as it held that a judge was required to appoint counsel in an RCr 11 .42
proceeding "upon request" regardless of the stage of the proceedings) . Finally, KRS
31 .219(1) provides :
It shall be the duty of the attorney representing a client under any public
advocacy plan to perfect an appeal if his client requests an appeal.
We do not regard the statutory right to counsel and to an appeal to be a "useless
formality ." Cullins v. Crouse , 348 F.2d 887, 889 (10th Cir. 1965) . "For this court to
recognize that an indigent has a statutory right to counsel, but then refuse to require
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some modicum of competency by such counsel, seems repugnant to the obvious
legislative intent." Brown v. State, 101 P .3d 1201, 1203 (Kan. 2004) (quoting McCarty
v. State , 83 P.3d 249, 253 (Kan . Ct. App. 2004) (Greene, J ., dissenting)) . The
specification of the authority and duties of the DPA in KRS 31 .030 clearly anticipates
that the representation provided to indigent defendants will be at least minimally
competent . See also KRS 31 .071(1)(b) ("In order to be qualified for appointment as
[local] public advocate, a person must have been admitted to the practice of law and
licensed to practice in the Commonwealth of Kentucky and be competent to counsel
and defend a person charged with a crime ." (Emphasis added.)).
Our holding in this regard should not be construed as sanctioning the filing of a
subsequent RCr 11 .42 motion for the purpose of claiming ineffective assistance of
counsel in litigating a previous RCr 11 .42 motion. Such potentially interminable post
conviction proceedings would certainly "bring our judicial system to its knees." Wine ,
694 S.W.2d at 694 . However, when incompetence of counsel, especially stateappointed counsel, costs an indigent defendant a statutory right of appeal, that
defendant ought to be entitled at least to a reinstated or belated appeal. See Whitney
State , 976 S.W.2d 391, 392 (Ark. 1998) (granting belated appeal from denial of postconviction relief where attorney admitted fault in failing to timely file notice of appeal) ;
Rosado v. State, 864 So. 2d 533, 534 (Fla. Dist. Ct. App. 2004) (granting belated
appeal where indigent defendant requested that attorney appeal from order denying
post-conviction relief and attorney refused because defendant did not forward filing fee,
which indigents were not required to pay) ; Brown, 101 P .3d at 1203-04 (granting
belated appeal from order denying post-conviction relief where appointed counsel failed
to notify defendant of his appointment, of the date of the evidentiary hearing, of the
denial of the motion, and of the right to appeal) ; Austin v. State, 409 S.E.2d 395, 396
(S.C. 1991) (remanding for an evidentiary hearing to determine whether defendant
requested and was denied an opportunity to seek appellate review of order denying
post-conviction relief) . Thus, we reject the dictum in Merrick , 132 S.W.3d at 221, that
suggests that a reinstated or belated appeal is never available except in a direct first
appeal of a judgment of conviction .
Whether denominated "ineffective assistance" or "incompetence," filing a notice
of appeal in the wrong court and thereby costing an indigent defendant the statutory
right of appeal is undoubtedly inadequate legal representation that warrants the granting
of a belated appeal in this case . As in Rosado, 864 So. 2d at 533, there is no need to
remand No. 2004-SC-0552-DG for an evidentiary hearing with respect to whether
Hawkins condoned, agreed to, or in some way contributed to the loss of his right to
appeal. Wine , 694 S .W .2d at 695. The Commonwealth does not suggest that Hawkins
did not request that the attempted appeal be filed ; and, obviously, the notice of appeal
would have been timely filed if counsel had simply mailed it to the correct circuit court .
Thus, we reverse the Court of Appeals and remand No . 2004-SC-0552-DG to that Court
with instructions to grant Hawkins's motion for belated appeal.
However, application of the principles set forth herein and in Fraser requires a
different result in No. 2004-SC-0550-DG . As explained, supra, Appellant Moore did not
have a constitutional right to counsel or effective assistance of counsel in prosecuting
his RCr 11 .42 motion or in appealing the denial thereof . Nor was he entitled to
appointment of counsel under RCr 11 .42(5), because the allegations in his motion could
be determined on the face of the record without an evidentiary hearing . Fraser, 59
S .W.3d at 452-53 ; cf. Stamps, 672 S.W .2d at 339 (any error assignable under Ivey was
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harmless because transcript of Boffin hearing clearly refuted allegations contained in
RCr 11 .42 motion) . Although KRS 22A.020(1) created a statutory right of appeal, the
provisions of KRS 31 .110(2)(c) and KRS 31 .219(1) do not apply to Moore because the
trial court did not appoint the DPA to represent him. Thus, though he was entitled to
appeal, it was his obligation to exercise that right by taking the action he finally took on
May 2, 2002, more than two months too late . Obviously, he contributed to his own
failure to timely file a notice of appeal. Thus, the Court of Appeals properly denied his
motion for a belated appeal. Wine , 694 S .W.2d at 695.
V. INCORRECT NOTATION OF MANNER OF SERVICE OF NOTICE OF ENTRY.
By motion, Appellant Moore raises a secondary issue pertaining to the effect of
an apparent error on the Daviess Circuit Clerk's criminal docket with respect to the
manner in which notice of entry of the order denying RCr 11 .42 relief was served on
Moore . The trial court directed that copies of the order be sent to the Commonwealth's
Attorney and to "Steven Moore, Jr., Luther Luckett Correctional Complex, Post Office
Box 6, LaGrange, Kentucky 40031 ."
The Circuit Clerk's criminal docket sheet reflects that the trial court's order
denying RCr 11 .42 relief was entered on January 24, 2002. The next entry, entered on
the same date, states "NOE [Notice of Entry] TO ALL COUNSEL OF REC [Record]
Method HAND DELIVERY ." Since Moore was not represented by counsel and was, in
fact, incarcerated at Luther Luckett Correctional Complex on January 24, 2002, it is
highly likely that the notation reflecting the manner of service of notice of entry was
incorrect. Moore did not discover the incorrect entry until after we had granted
discretionary review of the Court of Appeals' denial of his motion for a belated appeal .
He then filed a motion requesting that the erroneous entry be declared no entry, with the
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effect that the time for appeal from the January 24, 2002, order has not yet begun to run
and will not do so until the error is corrected . We passed that issue to the merits of the
case, perceiving that if we ultimately held that Moore was entitled to a belated appeal
(the only issue for which we granted discretionary review in this case), such would
render moot the issue regarding the incorrect docket entry. Having determined that
Moore was not entitled to a belated appeal, we now address this secondary issue . The
effect of a mistaken notation on the clerk's docket with respect to the manner of service
of notice of entry is governed by RCr 12.04(3) and RCr 12.06(1) and (2):2
Rule 12.04 . When and how taken .
(3)
The time within which an appeal may be taken shall be thirty (30)
days after the date of entry of the judgment or order from which it is
taken, subject to Rule 12.06 . . . .
Rule 12 .06 . Notice of entry of judgments and orders .
Immediately upon the entry in the trial court of a judgment, a final
order, or an order that affects the running of time for taking an
appeal, the clerk shall serve a written notice of the entry, either by
mail or by personal delivery, upon counsel of record for each
defendant, affected by the judgment or order, or upon the
defendant personally if the defendant is without counsel of
record . . . .
(2)
The clerk shall make a note in the criminal docket of the service
required by paragraph (1) of this Rule, which notation shall show
the date and manner of service. Unless notice has been waived,
the date of such notation shall be the date of entry for purposes of
Rule 12.04(3) . . . .
(Emphasis added .)
We note at the outset that Moore does not claim that he did not receive proper
notice of entry of the order of January 24, 2002. Nor does he claim that the notice of
2 Since this is not a direct appeal from a judgment entered pursuant to a plea of guilty,
RCr 12 .06(3) does not apply.
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entry was not mailed to him at his prison address as required by the order, itself . In
fact, in his motion to the Court of Appeals for permission to file a belated appeal, he
made no claim that he did not timely receive the notice of entry of the judgment from the
circuit clerk - only that he mistakenly believed the appeal was automatic and that he did
not learn otherwise until talking with an inmate legal aid months later.
Appellant's reliance on Ramey v. Commonwealth , 824 S .W.2d 851 (Ky. 1992), is
misplaced . In Ramev, the circuit clerk noted on the judgment that notice of entry was
served by mailing a true copy to the defendant's counsel of record on January 28, 1985.
However, the clerk did not make such a notation on the criminal docket until November
4, 1988, two weeks after this Court denied Ramey's motion to file a belated appeal .
Ramey then filed his appeal on November 14, 1988. Id . a t 852 . We held that the
appeal was timely filed because the time for appeal did not run until the clerk made the
notation on the criminal docket. "[W]e conclude straightaway that the beginning of the
ten [now thirty]-day period is the date of the clerk's notation in the criminal docket of the
service required by RCr 12.06(1) ." Id. at 853. Ramev also held that actual notice by the
defendant of the entry of the judgment was immaterial; "the controlling event in defining
the time in which a notice of appeal may be filed is the notation by the clerk in the
docket, made in compliance with RCr 12.06(2), as to service of notice of the entry of
judgment." Id. at 854 .
In Ramev, there was no notation either of the date of service or the manner of
service ; thus, there was no entry on the criminal docket from which to calculate the time
for appeal.
Here, both the date of service and the manner of service were noted on the
criminal docket - albeit the notation as to the manner of service was incorrect.
Nevertheless, there was an entry as required by RCr 12.06(2), and Appellant does not
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deny that he was served with proper notice of the date the judgment was entered.
Under these circumstances, we regard the incorrect notation as to manner of service as
a clerical mistake under RCr 10.10, correctable (if need be) nunc pro tunc. Cardwell v.
Commonwealth , 12 S.W.3d 672, 674 (Ky. 2000). Regardless, this type of error does
not toll the time for filing an appeal absent a claim and proof that the defendant did not
receive the notice of date of entry required by RCr 12.06(2).
Accordingly, we affirm No. 2004-SC-0550-DG, and we reverse No. 2004-SC0552-DG and remand the latter case to the Court of Appeals with directions to grant
Hawkins a belated appeal from the denial of his RCr 11 .42 motion .
Lambert, C .J . ; Graves, Scott, and Wintersheimer, JJ ., concur. Roach, J .,
concurs in part and dissents in part by separate opinion, with Johnstone, J., joining that
opinion .
COUNSEL FOR APPELLANT STEVEN MOORE (2004-SC-0550-DG) :
Margaret Foley Case
Appeals Branch Manager
Department of Public Advocacy
Suite 301
100 Fair Oaks Lane
Frankfort, KY 40601
Joseph Ray Myers
Assistant Public Advocate
Department of Public Advocacy
Suite 301
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY (2004-SC-0550-DG) :
Gregory D. Stumbo
Attorney General
Room 118
State Capitol
Frankfort, KY 40601
George G . Seelig
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
Suite 200
1024 Capital Center Drive
Frankfort, KY 40601
James C . Shackelford
Assistant Attorney General
Consumer Protection Division
1024 Capital Center Drive
Frankfort, KY 40601
COUNSEL FOR APPELLANT DOUGLAS HAWKINS (2004-SC-0552-DG) :
Dennis James Burke
Richard E. Neal
Department of Public Advocacy
Suite 301
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY (2004-SC-0552-DG) :
Gregory D. Stumbo
Attorney General
Room 118
State Capitol
Frankfort, KY 40601
Michael Harned
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : MAY 18, 2006
TO BE PUBLISHED
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2004-SC-0550-DG
STEVEN MOORE
ON REVIEW FROM COURT OF APPEALS
2003-CA-751
DAVIESS CIRCUIT COURT
NO . 97-CR-235, 97-CR-344, AND 97-CR-356
V.
COMMONWEALTH OF KENTUCKY
AND
2004-SC-0552-DG
DOUGLAS HAWKINS
V.
ON REVIEW FROM COURT OF APPEALS
2003-CA-1394
WOLFE CIRCUIT COURT NO. 97-CR-26
COMMONWEALTH OF KENTUCKY
OPINION BY JUSTICE ROACH
CONCURRING IN PART AND DISSENTING IN PART
Because this is the first time since Kentucky courts have operated under the
modern civil and criminal rules that any appellate court of this Commonwealth has
ignored the mandatory time-limitation contained in our rules governing appeals absent
overriding requirements stemming from federal constitutional law, I dissent.
Appeals of post-conviction proceedings, such as those pursuant to RCr 11 .42,
are taken pursuant to RCr 12 .04, which provides that "[t]he time within which an appeal
may be taken shall be thirty (30) days after the date of entry of the judgment or order
from which it is taken . . . ." RCr 12 .04(3). (CR 73 .02 applies the same time limit to civil
appeals.) The Criminal Rules do not impose a sanction for tardy filing of an appeal .
Instead, sanctions are imposed by the Civil Rules. The Civil Rules are applicable to
criminal matters unless contrary to or superceded by the Criminal Rules . RCr 13.04.
Though we have specific appellate rules in the Criminal Rules, RCr 12.02 specifically
provides that "Civil Rule[] . . . 73.02(2)(c) . . . shall apply also in criminal actions . . . . "
CR 73.02(2)(c) includes a sanction for failure to follow the rules generally and a more
specific sanction, which actually applies to all the subsections of CR 73.02, for when an
appeal is filed outside the prescribed time limit. The latter sanction is our concern here:
"The failure of a party to file timely a notice of appeal, cross-appeal, or motion for
discretionary review shall result in a dismissal or denial." CR 73.02(2) (emphasis
added) .
Outside a single, narrow exception, the courts of Kentucky have understood that
the "shall" in CR 73.02(2) means shall , and therefore requires strict compliance with the,
time limit for invoking appellate jurisdiction . In 1954, Kentucky's highest court stated in
regard to the 30-day time limit for taking an appeal under CR 73.02 that "we are without
authority to annul this requirement or to extend the time for meeting it beyond the limits
fixed in the Rule." Electric Plant Bd . of City of Hopkinsville v. Stephens, 273 S .W 2d
817, 819 (Ky. 1954) . Since this first interpretation of the time limitations for appeals, our
appellate courts have repeatedly held that absent a requirement found in federal
constitutional law, the time limits for taking appeals in our rules are mandatory . See
Johnson v. Smith , 885 S .W.2d 944, 949-50 (Ky. 1994) (holding that "the battle between
strict compliance with the rules of appellate practice to avoid dismissal and substantial
compliance is now over' and that tardy appeals are subject only to strict compliance) ;
Workers' Compensation Bd. v. Siler, 840 S.W.2d 812, 813 (Ky. 1992) ("Our adoption of
the substantial compliance rule provides that the failure of a party to timely complete
some procedural steps may not affect the validity of the appeal . However, filing of the
Notice of Appeal within the prescribed time frame is still considered mandatory, and
failure to do so is fatal to the action ." (citations omitted)); Cobb v. Carpenter, 553
S.W.2d 290, 293 (Ky. App. 1977) (citing to Stephens and holding that the 30-day time
limit is mandatory); Demoss v. Commonwealth , 765 S.W.2d 30, 32 (Ky. App. 1989)
(holding that RCr 12 .04(3) time limit is mandatory and that an "appellate court cannot
grant an appeal whenever it chooses to do so, in disregard of the rules of procedure") ;
Commonwealth v. Opell, 3 S .W.3d 747, 751 (Ky. App. 1999) ("Filing a notice of appeal
within the prescribed time frame is still mandatory and failure to do so is fatal to an
appeal ." (citation and internal quotation marks omitted)). As this Court recently stated :
[O]ur holding today, that a tardy notice of appeal is subject to automatic
dismissal and cannot be saved through application of the doctrine of
substantial compliance, is a policy decision that is reflected in CR 73.02.
This policy choice is necessary to preserve the finality of judgments .
Excel Energy, Inc. v. Commonwealth Institutional Securities, Inc. ; 37 S .W.3d 713, 71617 (Ky. 2000) (citation omitted) . It seems beyond debate then that automatic dismissal
is mandated by our rules. If the time limits are not met, the appeal should automatically
be dismissed .
The majority attempts to evade the mandatory effect of our rule=in essence,
rewriting the rule-by seizing on and expanding the lone exception found in Wine v.
Commonwealth, 694 S.W.2d 689 (Ky. 1985) . The majority opinion states that Wine
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"essentially held that if the right to a first appeal is lost because of ineffective assistance
of counsel, whether because the notice of appeal was not timely filled or because the
appeal was dismissed for, .gc ., counsel's failure to file a brief, then the appeal must be
allowed or reinstated unless the client agreed to, condoned, or contributed to the
dismissal ." Ante at
(slip op. at 7).
I agree with this understanding of Wine as it applies to first appeals. However, a
review of Wine 's reasoning indicates that it should be limited to first appeals. After
several extensions of time to file the appellant's brief, counsel for the appellant was
denied a final extension by the Court of Appeals, and the appeal was dismissed. Wine,,
694 S.W.2d at 691-92 . In an attempt to restart the running of time for the appeal, the
appellant filed an RCr 11 .42 motion, which we held was only "designed to permit a trial
court an opportunity after entry of judgment to review its judgment and sentence for
constitutional invalidity of the proceedings prior to judgment or in the sentence and
judgment itself' and therefore was "not an appropriate remedy for a frustrated appeal."
IId . at 694.
Nonetheless, we allowed the appellant to pursue his tardy appeal .
In doing so,
we noted:
Our courts are compelled to abide by the decisions of the United States
Supreme Court which has held in unmistakable terms that when a state
authorizes an appeal from a conviction in a criminal case, it cannot deny
an appeal to an indigent . Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100
L.Ed . 891 (1956). Douglas v. California, 372 U .S. 353, 83 S .Ct. 814, 9
L.Ed .2d 811 (1963), held that, in a first appeal, an indigent appellant in a
criminal case must be supplied with an attorney, and Evitts v. Lucey, 469
U .S. 387, 105 S.Ct. 830, 83 L .Ed.2d 821 (1985), held that due process
requires an appellant in a criminal case to be provided with effective
assistance of counsel . In Evitts v. Lucey, the United States Supreme Court
noted that states may enforce procedural rules in a criminal case with
sanctions against an attorney rather than dismissing the appeal of the
client .
Id. at 695. From this, we concluded :
It seems abundantly clear from the decisions of the United States
Supreme Court that State rules of procedure, however important they may
be to the orderly administration of justice, cannot be allowed to frustrate
an appeal of an indigent defendant who has been denied effective
assistance of counsel.
Although the law is still developing as to what constitutes ineffective
assistance of counsel in the constitutional senses, it cannot be doubted
that the failure of counsel to file an appellate brief which results in the
dismissal of an appeal constitutes ineffective assistance . It is as if no
appeal had been taken . In such a case, the appeal must be reinstated
unless the conduct of counsel has been condoned by, agreed to, or is in
some way attributable to the client.
Id. at 695 .
However, Wine did not rely on any state ground in its holding. It simply held that
state procedural rules must give way when federal constitutional rights would otherwise
be violated . Though not stated in Wine, this is due to the fact that most of the federal
protections found in the Bill of Rights are also applicable to state governments under the
Fourteenth Amendment . The problem in applying Wine, however, as even the majority
opinion ' concedes, is that no federal constitutional rights are involved in the present
matter. The United States Supreme Court has previously addressed the right to
counsel in the context of state post-conviction proceeding, holding that "[t]here is no
constitutional right to an attorney in state post-conviction proceedings ." Coleman v.
Thompson , 501 U .S . 722, 752, 111 S .Ct. 2546, 2566 (1991). The Court further noted
that there was no federal right to counsel on appeal of such a proceeding : "Given that a
criminal defendant has no right to counsel beyond his first appeal in pursuing state
discretionary or collateral review, it would defy logic for us to hold that Coleman had a
right to counsel to appeal a state collateral determination of his claims of trial error." Id.
at 756-57, 111 S .Ct. at 2568. Rather than concede that the reasoning in Wine was
necessarily narrow, the majority claims it was decided on such narrow grounds only
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because it was presented with a narrow issue, implying, of course, that had the issue
we now face been presented, the majority's reasoning would have prevailed then. As
the majority opinion claims :
[T]he reason Wine focused solely on constitutional issues was that it
involved only the denial of a first appeal because of ineffective assistance
of counsel, thus falling squarely within the constitutional parameters of
Douglas and Evitts . Wine was not required to address whether the loss of
a statutory right of appeal because of counsel error would justify granting
a reinstated or belated appeal .
Ante at
(slip op. at 8). But the majority's reasoning and subsequent approach to the
rule does not flow logically from Wine .
Though the majority fails to state its thesis explicitly, its opinion appears to
combine a statutory right to appeal with what it describes as a statutory right to counsel
so as to allow certain defendants to proceed with tardy appeals of a circuit court's
determination of an RCr 11 .42 motion . While the statutory right to appeal is clearly
defined, see KRS 22A.020(1), the majority's characterization of the statutory right to
counsel, specifically how it leads to a right to effective assistance of counsel on par with
the constitutional right of counsel that applies to direct appeals, is problematic .
The majority derives the statutory right to effective assistance of counsel from the
convergence of one of our criminal rules and the statutes related to the Department of
Public Advocacy (DPA). Specifically, the majority cites to RCr 11 .42(5) and KRS
31 .110(2)(c). We have previously concluded "that RCr 11 .42(5) establishes when a
judge must appoint counsel for an indigent movant and that KRS 31 .110(2)(c)
establishes when the DPA may provide legal services even without judicial
appointment ." Fraser v. Commonwealth , 59 S .W .3d 448, 456 (Ky. 2001). The rule and
statute, taken together, create what the majority calls a "statutory right to counsel."
The majority cites to several other states that have held that statutory rights to
counsel gives rise to a right of effective counsel in post-conviction proceedings, then
relies on several of the DPA statutes-KRS 31 .030, which defines the general duties
and authority of the DPA; 31 .071(1)(b), which requires an attorney to be competent in
a
order to work for the DPA; and KRS 31 .219, which specifies that a DPA attorney has
duty to perfect a client's appeal-to inject the right of effective counsel into Kentucky's
statutory right to counsel . As the majority notes, "[t]he specification of the authority and
duties of the DPA . . . clearly anticipates that the representation provided to indigent
defendants will be at least minimally competent ." Ante at
(slip op. at 11).
While I do not disagree with this characterization of the DPA's duties, I simply
cannot subscribe to the majority's jigsaw puzzle approach to effective assistance of
counsel in post-conviction matters . To begin with, this statutory right to counsel is
conditional and incomplete. RCr 11 .42 requires that counsel be appointed only in
certain circumstances . And KRS 31 .110(2)(c) limits the entitlement to "proceeding[s]
that the attorney and the needy person considers appropriate" and terminates the
entitlement when, "with the court involved, [counsel] determines that it is not a
proceeding that a reasonable person with adequate means would be willing to bring at
his own expense . . . . " The inevitable result, as was the case with one of the
defendants here (Steven Moore), is that counsel often is not appointed by the court, the
DPA does not intervene, and the defendant is forced to proceed pro se.
Though the majority discusses the statutory right to counsel as a source of the
right of effective assistance of counsel, the discussion appears to be mere windowdressing . The majority does not describe how it arrives at this extended right from the
bare statutory right to counsel in a post-conviction matter . It does cite to cases from a
few other states that have held that their statutory right to counsel also includes a right
of effective counsel . But this is not enough, especially when that so-called right is then
used to override a long-standing and stringent requirement for invoking appellate
jurisdiction . In fact, since the question before us is not whether a defendant was denied
appointed counsel, the statutory right to counsel discussion is not especially important,
unless there is some element in the majority's reasoning that it chose not to include in
its opinion . Ultimately, in terms of Kentucky law, the majority relies only on those
statutes defining the DPA attorneys' duties to their clients to arrive at the statutory
effective assistance right.
It is this reliance on the DPA-duty statutes as the source of a right of effective
post-conviction counsel, however, that is most troubling. First, I disagree that those
statutes create such rights for defendants . The DPA is a creature of wholly statutory
origin . KRS 31 .010 . Those statutes defining the authority and duties of the DPA's
attorneys, e.g., KRS 31 .030, are simply part of the description of the DPA's mandate=
they govern the creation, maintenance, and internal operation of the DPA. Those
statutes do not give rise to corollary rights in the clients of those attorneys employed by
the DPA in order to carry out its statutory mandate.
Even more troubling, however, is the fact that if legal rules defining the duties of
an attorney to a client are alone enough to create this right of effective assistance in
post-conviction proceedings, then all defendants who have attorneys must enjoy that
same right. Our Rules of Professional Conduct require that all members of the Bar'
provide competent representation . See SCR 3.130-1 .1 ("A lawyer shall provide
competent representation to a client . Competent representation requires the legal
knowledge, skill, thoroughness and preparation reasonably necessary for the
representation ."); SCR 3.130-1 .3 ("A lawyer shall act with reasonable diligence
promptness in representing a client."). These rules bind
and
all members of the Bar,
meaning that all attorneys owe a duty of competent representation to their client. If the
majority's logic is sound, then this duty entails a corollary right of effective assistance-one enjoyed by all clients, public and private. The majority even implies this to be the
case when it applies its derived principles of effective assistance to Hawkins's tardy
appeal: "[W]hen incompetence of counsel, especially state-appointed counsel, costs an
indigent defendant a statutory right of appeal, that defendant ought to be entitled at
least to a reinstated or belated appeal." Ante at __ (slip op. at 11). This language, while
emphasizing appointed counsel, does nothing to limit this approach to DPA attorney
representation .
But this exposes the difficulty in allowing a defendant to pursue a tardy appeal of
a post-conviction matter due to ineffective assistance of counsel . It leads to the bizarre
result that only pro se defendants may not pursue tardy appeals of post-conviction
matters, despite our policy to allow pro se litigants greater leniency and to hold them to
a lesser standard than attorneys . See Million v. Raymer , 139 S .W .3d 914, 920 (Ky.
2004) ("This Court has many times held that when a prisoner elects to proceed pro se
he is not subject to the same standard of pleading as is legal counsel; and that rules are
to be construed liberally in his favor." (internal quotation marks and citation omitted));
Miller v. Commonwealth , 458 S .W.2d 453, 454 (Ky. 1970) ("Where the prisoner is
proceeding pro se, as here, we do not impose on him the same standards as those
applied to legal counsel ." (internal punctuation and citation omitted)); Moore v.'
Commonwealth, 394 S.W.2d 931, 932-33 (Ky. 1965) ("[W]e are not disposed to be too
strict in application of procedural rules to an indigent prisoner who is without counsel.").
If pro se defendants are to be denied tardy appeals, then surely those defendants who
enjoy the counsel of an attorney enjoy no greater rights .
But allowing an attorney's duty to provide competent counsel during postconviction proceedings to create a right of effective assistance of counsel would lead to
an even more absurd result: the effective evisceration of our rules concerning the time
to file an appeal. Under the majority's logic, since all attorneys owe their, clients a duty
of competent representation, and such a duty gives rise to aright of effective
representation, any matter of right appeal lost due to incompetence or ineffectiveness of
counsel must be reinstated . If this is so, then why have we repeatedly applied the rule :
of strict compliance to the time in which to pursue an appeal? The answer is simplebecause our rules require it: "The failure of a party to file timely a notice of appeal,
cross-appeal, or motion for discretionary review shall result in a dismissal or denial ."
CR`
73.02(2) . Strict compliance, as we have held . in Johnson, Excel Energy, Inc.; and
numerous other cases, is the policy embodied in CR 73 .02(2). It admits only one
sanction : dismissal of the appeal. Thus our discussion comes full circle.
The majority attempts to cobble together disparate rules and statutes to create a
post conviction state-law analog to the first-appeal federal rights in Wine. But in doing
so, it does such violence to our rules requiring timely appeals so as to defeat them.
Today, contrary to Johnson and every other case we have ever decided, we are
allowing the description of the duties of the DPA to trump our own previously absolute
rules of procedure. In so doing, this Court has made clear that none of our rules
concerning appeals can be enforced . If the right of appeal in KRS 22A.020(1) and the
duty of DPA counsel to be competent together trump our unequivocal time limits, how
can any of our procedural rules concerning appeals stand in the way of that right? And
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why should a civil litigant not be entitled to the same rights that we are giving these:
criminal defendants in this matter? After all, they too have a right to appeal under KRS
22A .020(1), and their attorneys are required to be competent . Truly, such a consistent
application of the holding of this case would "bring our judicial system to its knees." Our
jurisprudence, despite the advent of substantial compliance, has consistently upheld our
rules related to the timeliness of appeals . We should continue to do so. Our rules
require strict compliance--nothing less--unless federal law requires otherwise .
Because I do not believe that we should overrule scores of cases and that we
should enforce our rules as written, with their requirement of strict compliance, l
respectfully dissent from the reversal of Hawkin's conviction . I do agree with the
majority's conclusion that pro se defendants are subject to the requirement of strict
compliance with the time limit for filing an appeal, thus I concur in the majority opinion
insofar as it affirms Moore's conviction .
Johnstone, J ., joins this opinion, concurring in part and dissenting in part .
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