JEFFREY LEONARD V. COMMONWEALTH OF KENTUCKY
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RENDERED : JANUARY 22, 2009
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JEFFREY LEONARD
V.
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY M. SHAW, JUDGE
NO. 83-CR-000387
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING
Appellant, Jeffrey Leonard, alias James Earl Slaughter, ) appeals from a
denial of his motion under CR 60 .02 to be relieved from a 1995 order denying
his RCr 11 .42 collateral attack motion, several issues in which were held on
appeal to be procedurally barred because related issues had been addressed in
his direct appeal. He now argues he should be able to reopen the RCr 11 .42
'It appears that Appellant's real name is Jeffrey Devan Leonard, though he was
prosecuted as "James Earl Slaughter." His previous appeals and collateral attacks
were taken under that alias as well. His real name appears to have first been revealed
in the context of his RCr 11 .42 proceeding, where it was part of the basis of his claim
of ineffectiveness of trial counsel (specifically, he argued that it showed his trial
counsel had done so little investigation that he did not know his client's real name) .
This Court's Opinion affirming the denial of RCr 11 .42 relief recognized his real name
for the first time, stating, "[T]he name given him at birth was Jeffrey DeVan Leonard ."
Slaughter v. Commonwealth , 96-SC-0049-MR, at *2 (Ky. Sept. 23, 1999)
(unpublished) . His real name was also recognized in the context of federal habeas
corpus litigation. See Slaughter v. Parker, 187 F.Supp .2d 755, 767 n .1 (W.D. Ky.
2001) ("Petitioner's true name is not James Earl Slaughter . His legal name is Jeffrey
Devane Leonard. Because the state court decisions repeatedly refer to Petitioner by his
alias, this Opinion will also use the alias.") . Unfortunately, even that federal decision
refers to Appellant's legal name with two different spellings . Compare _id. ("Jeffrey
Devane Leonard"), with _id. at 775 ("Jeffrey Devan Leonard") . The current appeal has
been taken under Appellant's real name, Jeffrey Leonard .
proceeding to apply this Court's decision in Martin v . Commonwealth, 207
S .W.3d 1 (2006), which held that issues unsuccessfully appealed under the
palpable error rule, RCr 10 .26, can give rise to a separate claim of ineffective
assistance of counsel, which may be pursued in collateral proceedings.
However, because Martin announced a new procedural rule, it is not
retroactively applicable, and the circuit court's order is affirmed .
I . Background
Appellant was convicted of murder and robbery and was sentenced to
death in 1983 . His conviction and sentence were affirmed on direct appeal in
1987, Slaughter v. Commonwealth , 744 S .W .2d 407 (Ky. 1987), and the United
States Supreme Court denied certiorari in 1989 . Slaughter v. Kentucky , 490
U .S . 1113 (1989) .
Later that same year, Appellant initiated a collateral attack on his
conviction by filing an RCr 11 .42 motion . As the trial court noted in its
subsequent order resolving the RCr 11 .42 claims, "ft]he motion languished" for
several years thereafter . Eventually, in 1994, the trial court ordered the matter
to proceed and held a three-day evidentiary hearing, at which testimony from
Appellant's trial counsel and a number of other witnesses was presented. In its
subsequent order, the trial court noted that an "impressive display of
`mitigating' evidence" had been presented and that "many" of the issues raised
in the RCr 11 .42 motion "were adjudicated by the direct appeal."2 Ultimately,
2 The trial court's RCr 11 .42 order does not include an issue-by-issue
discussion as to which issues were resolved on direct appeal. However, a comparison
between this Court's direct appeal Opinion and the issues discussed in greater depth
in the subsequent decision affirming the trial court's RCr 11 .42 ruling reveals that
2
however, the trial court held that Appellant's trial counsel had not been
ineffective and thus denied the RCr 11 .42 motion .
This Court affirmed the trial court in 1999 . Slaughter v . Commonwealth,
96-SC-0049-MR, at *2 (Ky. Sept. 23, 1999) (unpublished) . In resolving the
appeal, this Court held that many of the issues Appellant raised were
procedurally barred, either because they had been raised and rejected on direct
appeal (and thus could not be relitigated in the RCr 11 .42 context), or because
they could and should have been raised on the direct appeal (and thus could
not be litigated at all in the RCr 11 .42 context) .
In 2006, this Court rendered its decision in Martin v . Commonwealth,
holding that errors raised for the first time on appeal and found not to be
palpable under RCr 10.26 could be the source of subsequent ineffective
assistance of trial counsel claims . Within two months of that decision
becoming final, Appellant filed a CR 60.02 motion to reopen the RCr 11 .42
proceeding so that the merits of the claims previously held to be procedurally
barred could be addressed. Appellant argued that Martin removed the
procedural bar that had prevented many of his claims from being addressed on
their merits in the initial RCr 11 .42 proceeding.
The trial court denied the CR 60 .02 motion. The court found that the
motion had been filed within the reasonable time required by CR 60 .02, but
most of these issues were summarily resolved in the direct appeal by the following
language: "Appellant raised 29 issues on appeal. Although we have carefully
considered all of them, only certain ones will be discussed in this opinion. All others
are without merit." Slaughter v. Commonwealth , 744 S.W.2d 407, 409 (Ky. 1987) .
This Court went on to address specifically only 8 of the 29 issues in its direct appeal
decision .
nevertheless held that Martin was inapplicable to Appellant because the rule it
announced was not to be applied retroactively.
Appellant appealed as a matter of right . Ky . Const. ยง 115 . After the
notice of appeal was filed, but before the briefs were submitted, then Governor
Ernie Fletcher commuted Appellant's death sentence to life in prison without
the possibility of parole.
II. Analysis
A. Jurisdiction
As a preliminary matter, this Court's jurisdiction to hear this matter as a
direct appeal must be addressed, since Appellant is no longer sentenced to
death . Though neither party has raised or addressed the issue, this Court
must determine for itself that jurisdiction is proper. See Hook v. Hook, 563
S .W.2d 716, 717 (Ky. 1978) ("Although the question is not raised by the parties
or referred to in the briefs, the appellate court should determine for itself
whether it is authorized to review the order appealed from.") ; Hubbard v .
Hubbard, 303 Ky . 411, 412, 197 S .W .2d 923, 923 (1946) ("This question is not
raised by the record, nor is it referred to in the briefs, but jurisdiction may not
be waived, and it can not be conferred by consent of the parties. This court
must determine for itself whether it has jurisdiction.") .
This Court has exclusive appellate jurisdiction over death penalty
matters, even when the appeal involves a collateral attack on a sentence of
death . Skaggs v. Commonwealth , 803 S .W .2d 573, 577 (Ky. 1990) ("We take
this occasion to express our view that the Court of Appeals is without authority
to review any matter affecting the imposition of the death sentence.") ; see also
4
CR 74 .02 ("The filing of a notice of appeal in a case in which a death penalty
has been imposed will automatically serve to transfer the appeal to the
Supreme Court.") . However, in a case without a death sentence, any appeal of
a collateral attack must proceed initially at the Court of Appeals, even if
exclusive jurisdiction over the direct appeal of the case is proper only with this
Court. Cardine v . Commonwealth, 102 S .W.3d 927, 928-29 (Ky . 2003) . This is
so even if the defendant has previously been under a death sentence that has
been commuted to a lesser sentence at the time the appeal is undertaken,
meaning that if a defendant's status with regard to being subject to the death
penalty changes, then the proper forum for his appeals also changes . E.g . ,
Stanford v. Commonwealth, 248 S .W.3d 579 (Ky . App. 2007) (RCr 11 .42 appeal
was prosecuted at the Court of Appeals after death sentence had been
commuted to life in prison) .
However, because Appellant was under a sentence of death when his
appeal in this case began, the only appellate state court with jurisdiction to
hear his appeals was this Court . The question then is whether the
gubernatorial action of commuting Appellant's sentence removes the appeal
from this Court's jurisdiction. The answer is simple : This Court will retain
jurisdiction over such a case so long as jurisdiction was proper in the first
place . This result furthers the interests of judicial economy (the case is already
here, after all), is not prohibited by our rules, and complies with this Court's
prior cases. See Commonwealth v . Adkins, 29 S .W.3d 793, 795 (Ky. 2000)
("There is a presumption against divesting a court of its jurisdiction once it has
properly attached, and any doubt is resolved in favor of retaining jurisdiction .
5
Indeed, once a court has acquired jurisdiction, no subsequent error or
irregularity will remove that jurisdiction, so that a court may not lose
jurisdiction because it makes a mistake in determining either the facts, the
law, or both." (citations omitted)) .
B. Direct Appeals and Collateral Attacks
Whether certain types of issues can be raised in a collateral attack on a
criminal conviction has always been a hard question . The difficulty lies in the
need to resolve various competing interests: prevention of duplicative litigation,
timely litigation of issues, finality of judgments, the need to bring issues in the
proper forum, the right to be heard, and general fairness . In light of these
interests, it is clear that some issues must be brought to the attention of the
appellate courts in the direct appeal, while others must be presented first to
the trial court by way of a collateral attack . There is little if any overlap
between the two classes of claims.
These competing interests led to the adoption of the following rule, which
has long been the law in Kentucky, concerning collateral attacks : "It is not the
purpose of RCr 11 .42 to permit a convicted defendant to retry issues which
could and should have been raised in the original proceeding, nor those that
were raised in the trial court and upon an appeal considered by this court."
Thacker v. Commonwealth, 476 S.W .2d 838, 839 (Ky. 1972) . This rule has
been applied consistently to bar two classes of claims from being brought in
collateral attacks : (1) those that could and should have been litigated in the
direct appeal; and (2) those that were actually litigated in the direct appeal.
See, e .g . , Wilson v. Commonwealth , 975 S .W.2d 901 (Ky. 1998) ; Stanford v.
6
Commonwealth , 854 S .W.2d 742, 747 (Ky. 1993) ; Brown v. Commonwealth ,
788 S .W.2d 500, 501 (Ky. 1990) . The first class is a pure procedural bar that
aims to have issues raised only in the proper forum . See Slaughter v.
Parker, 187 F.Supp .2d 755, 826 (W.D . Ky. 2001), overruled in part on other
grounds by Slaughter v. Parker, 450 F.3d 224 (6th Cir . 2006) ("The Supreme
Court relied on a well-established state law ground that issues that may be
raised on direct appeal may not first be brought in a post-conviction motion to
vacate." (citing Thacker v. Commonwealth, 476 S .W.2d 838, 839 (Ky. 1972)) .
Technically speaking, the rationale for barring the second class of claims is
more akin to collateral estoppel or issue preclusion than to a pure procedural
bar, as it depends on the identical issue having been previously decided. It is
also sometimes discussed as part of the "law of the case" doctrine . E .g. , Wilson
v. Commonwealth, 975 S.W.2d 901, 903-04 (Ky . 1998) .
In the 1990s, however, this procedural-bar rule was expanded to bar
ineffective assistance of counsel claims related to issues that were raised on
direct appeal . In Sanborn v. Commonwealth, 975 S .W .2d 905 (Ky.1998), this
Court laid out the following rule:
We believe it is prudent to set out the standard of review of claims
raised in a collateral attack under RCr 11 .42 . Such a motion is
limited to issues that were not and could not be raised on direct
appeal . An issue raised and rejected on direct appeal may not be
relitigated in these proceedings by claiming that it amounts to
ineffective assistance of counsel.
Id . at 908-09 (citing Brown v . Commonwealth , 788 S.W .2d 500 (Ky . 1990), and
Stanford v . Commonwealth, 854 S .W .2d 742 (Ky. 1993)) (emphasis added) .
This broader language was repeated in several opinions in the following years:
Baze v. Commonwealth , 23 S .W.3d 619, 624 (Ky. 2000) ; Haight v.
Commonwealth , 41 S.W .3d 436, 441 (Ky. 2001) ; Sanders v. Commonwealth , 89
S .W.3d 380, 385 (Ky. 2002) ; Hodge v. Commonwealth , 11.6 S .W.3d 463, 468
(Ky. 2003) ; Mills v . Commonwealth, 170 S.W.3d 310, 326 (Ky. 2005) ; Simmons
v. Commonwealth , 191 S.W.3d 557, 561 (Ky. 2006) . Essentially, this expanded
rule would bar the exact type of claim Appellant seeks to bring. The most
recent of these cases, Simmons, was rendered in February 2006 and became
final in June 2006.
Only a few months after Simmons, this Court rendered its decision in
Martin v. Commonwealth, 207 S .W.3d 1 (Ky. 2006) . On direct appeal, Martin
claimed that the prosecutor had violated his due process rights by making
improper comments during closing argument . "This Court criticized the
prosecutor's comments and concluded that they were likely improper ." Id . at
2 . However, no objection had been made at trial, so the claim could only lead
to a reversal if it constituted palpable error under RCr 10 .26. Ultimately, this
Court concluded that the comments had not risen to that level of prejudice,
that is, they did not constitute a "manifest injustice," and thus affirmed
Martin's conviction.
In his subsequent RCr 11 .42 motion, Martin argued that his attorney
had been ineffective at trial by not objecting to the prosecutor's improper
comments. Both the trial court and the Court of Appeals held that the issues
that Martin raised in his RCr 11 .42 motion had already been addressed in his
direct appeal under the palpable error standard and were therefore
procedurally barred from being presented in a subsequent collateral attack .
8
This Court reversed the Court of Appeals, holding that Martin could
present his ineffective assistance of counsel claims in the RCr 11 .42 context
even though the underlying claim of error had been denied on direct appeal. In
so holding, this Court noted that the standards for evaluating potential
palpable errors on direct appeal and claims of ineffective assistance of counsel
were substantially different, with the palpable error standard being more
stringent. From this observation, the Court concluded :
This prevents a palpable error analysis from being dispositive
of an ineffective assistance claim .
When an appellate court engages in a palpable error review,
its focus is on what happened and whether the defect is so
manifest, fundamental and unambiguous that it threatens the
integrity of the judicial process . However, on collateral attack,
when claims of ineffective assistance of counsel are before the
court, the inquiry is broader. In that circumstance, the inquiry is
not only upon what happened, but why it happened, and whether
it was a result of trial strategy, the negligence or indifference of
counsel, or any other factor that would shed light upon the severity
of the defect and why there was no objection at trial. Thus, a
palpable error claim imposes a more stringent standard and a
narrower focus than does an ineffective assistance claim .
Therefore, as a matter of law, a failure to prevail on a palpable
error claim does not obviate a proper ineffective assistance claim .
Id . at 4-5 .
Implicit in Martin is the notion that in most instances a direct appeal
allegation of palpable error is fundamentally a different claim than a collateral
attack allegation of ineffective assistance of counsel based on the alleged
palpable error . This makes sense because the issue "raised and rejected" on
direct appeal is almost always not a claim of ineffective assistance of counsel .
Instead, the palpable-error claim is a direct error, usually alleged to have been
committed by the trial court (e.g., by admitting improper evidence) . The
9
ineffective-assistance claim is collateral to the direct error, as it is alleged
against the trial attorney (e .g., for failing to object to the improper evidence) .
Such a claim is one step removed from those that are properly raised, even as
palpable error, on direct appeal. While such an ineffective-assistance claim is
certainly related to the direct error, it simply is not the same claim. And
because it is not the same claim, the appellate resolution of an alleged direct
error cannot serve as a procedural bar to a related claim of ineffective
assistance of counsel.
Unfortunately, Martin did not discuss or even cite the Sanborn-toSimmons line of cases, though the rule repeated in them was in direct conflict
with the new rule . The conflict being clear and having now been presented
directly to this Court, and Martin having the superior logic, the Sanborn -toSimmons line must give way. In Martin, this Court recognized the difference
between an alleged error and a separate collateral claim of ineffective
assistance of counsel related to the alleged error, and held that a claim of the
latter may be maintained even after the former has been addressed on direct
appeal, so long as they are actually different issues . 3 That holding is confirmed
3 Where the collateral ineffective assistance of counsel claim is presented in the
course of the direct appeal, as occurred in Bowling v . Commonwealth , 981 S.W.2d
545, 549 (Ky . 1998), and Wilson v. Comonwealth, 975 S.W.2d 901, 903-04 (Ky . 1998),
the issue cannot be re-litigated in a collateral attack. Bowling and Wilson 's holdingsessentially, that an ineffective assistance claim already rejected in the context of the
direct appeal cannot be reraised in the RCr 11 .42 motion-are still good law. This,
however, is because the collateral issue of ineffectiveness itself, not just the related
direct error, had already been raised and rejected . Essentially, these cases reflect a
specific application of the second class of procedural bar discussed above.
Nevertheless, as regards that specific application, it bears repeating the warning
in Wilson : "We must point out that Appellant's argument in this respect strikes at the
very essence of the danger in raising an ineffective assistance of counsel claim on
direct appeal. Evidence of such claims, more often than not, lacks adequate
10
today . To the extent that Sanborn , Baze, Haig_ht , Sanders , Hodge, Mills, and
Simmons hold otherwise, and thus contradict Martin , they are overruled .4
III. Retroactivity of Martin
The question then is whether Appellant may use the Martin rule
reaffirmed today to reopen his RCr 11 .42 proceedings and litigate those issues
previously held to be procedurally barred . Because his conviction was final,
having been affirmed on direct appeal, and his collateral attack was completed
when Martin was rendered, Appellant can only benefit from the new rule if it is
to be applied retroactively. Whether a new rule based on state law and
development at the time of the initial appeal." _Id. at 903-04 ; see also Brown v.
Commonwealth , 226 S.W.3d 74, 90 (Ky. 2007) (discussing premature ineffectiveassistance claims) . The concerns raised in Wilson are why this Court has also said,
As a general rule, a claim of ineffective assistance of counsel will
not be reviewed on direct appeal from the trial court's judgment, because
there is usually no record or trial court ruling on which such a claim can
be properly considered . Appellate courts review only claims of error
which have been presented to trial courts . Moreover, as it is unethical for
counsel to assert his or her own ineffectiveness for a variety of reasons,
and due to the brief time allowed for making post trial motions, claims of
ineffective assistance of counsel are best suited to collateral attack
proceedings, after the direct appeal is over, and in the trial court where a
proper record can be made . This is not to say, however, that a claim of
ineffective assistance of counsel is precluded from review on direct
appeal, provided there is a trial record, or an evidentiary hearing is held
on motion for a new trial, and the trial court rules on the issue .
Humphrey v . Commonwealth , 962 S.W .2d 870, 872-73 (Ky . 1998) (citations omitted) .
4 The Commonwealth claims that Martin , whether retroactively applicable or
not, cannot apply to Appellant's case because he was originally sentenced to death
and thus received a higher level of appellate review by this Court. The Commonwealth
argues that this Court's death sentence review process provides the same broad
standard on direct appeal of unpreserved errors that is to be applied to claims of
ineffective assistance of counsel, even though there has been no chance for an
evidentiary hearing on the issue at that point. Because Martin's outcome depended on
a difference between the prejudice standards to be applied in palpable error review on
direct appeal and in claims of ineffective assistance of counsel, the Commonwealth
argues, its rule need not be applied to Appellant's case . While this is certainly an
interesting (and problematic) argument, it need not be addressed because the
retroactivety analysis below resolves this case .
announced by one of this Court's opinions is to be applied retroactively is one
of first impression .
Retroactivity of new federal constitutional rules is controlled by Teague v.
Lane,
489 U .S. 288 (1989),
which held that "[u]nless they fall within an
exception to the general rule, new constitutional rules of criminal procedure
will not be applicable to those cases which have become final before the new
rules are announced." Id . at 310 . 5 The only exceptions are when the new rule
"places certain kinds of primary, private individual conduct beyond the power
of the criminal law-making authority to proscribe . . . [or] it requires the
observance of those procedures that . . . are implicit in the concept of ordered
liberty ." Id . at 307 (citations and internal quotation marks omitted) (second
omission in original) . Under Tea ue, once a conviction becomes final, that is, it
has gone through the direct appeal process and been affirmed, the new rule is
not applicable, even if the collateral attack is pending when, or has begun after,
the new decision is rendered .
However, Tea ue is not binding on the states if they choose to broaden
the class of retroactively applicable rules . Danforth v. Minnesota, U .S . 128
S . Ct.
1029 (2008) .
Nor is Tea ue binding as to a new rule grounded solely in
state law (as opposed to the federal constitution) . American Trucking
5 "Although Tea e was a plurality opinion that drew support from only four
Members of the Court, the Tea e rule was affirmed and applied by a majority of the
Court shortly thereafter. See Penry v. Lynaugh, 492 U.S. 302, 313, 109 S .Ct. 2934,
106 L.Ed.2d 256 (1989) (`Because Penry is before us on collateral review, we must
determine, as a threshold matter, whether granting him the relief he seeks would
create a new rule. Under Teague, new rules will not be applied or announced in cases
on collateral review unless they fall into one of two exceptions' (citation and internal
quotation marks omitted)) ." Danforth v. Minnesota, 128 S.Ct . 1029, 1033 n. l (2008) .
12
Associations, Inc . v . Smith , 496 U .S. 167, 177 (1990) (plurality opinion) ("When
questions of state law are at issue, state courts generally have the authority to
determine the retroactivity of their own decisions.") .
This Court applied the Tea ue test in evaluating the retroactivity of new
federal constitutional rules in Bowling v . Commonwealth , 163 S.W .3d 361, 370
(Ky. 2005). Under that decision, Kentucky's constitutional retroactivity rule is
no broader than that employed by the federal courts . However, the rule
contained in Martin was not of a constitutional dimension ; rather, it was
simply one of criminal procedure springing from this Court's own rules as to
whether certain issues may be raised in a collateral attack. As such, this
Court is free to adopt whatever standard of retroactivity it finds reasonable .
Nevertheless, Teague's proscription against applying new rules
retroactively once a judgment is final on direct review makes sense, given the
interest in finality of judgments . This is especially so in a case like this one
where the initial conviction had been "final" for 17 years when Martin was
rendered . Questions of retroactivity usually involve a new rule that would be
applied in the course of a direct appeal, e.g., Griffith v . Kentucky , 479 U.S. 314
(1987) (addressing retroactive applicability of Batson v . Kentucky , 476 U .S . 79
(1986)), which is part of the reason such rules are not to be retroactively
applied in the context of collateral attacks .
The retroactivity determination in this case is more complicated than
usual because Martin announced a procedure-a new class of ineffective
assistance claims-to be applied within the collateral attack itself, rather than
a rule to be applied at trial or raised on direct appeal . In fact, as noted above,
13
this Court has held that claims of ineffective assistance of counsel should not
ordinarily be addressed in the course of a direct appeal. See Humphre vv.
Commonwealth , 962 S.W .2d 870, 872 (lay. 1998) . It makes little sense then to
determine retroactivity by reference to when the conviction itself became final
on direct appeal . Otherwise, Martin himself could not have enjoyed the benefit
of this Court's decision, since his conviction was already final on direct appeal.
Instead, the relevant "judgment" in determining retroactivity in a case like this
one, where the new rule relates to procedures within the collateral attack itself,
is the order resolving the collateral attack . The cutoff for retroactivity of a new
collateral attack rule is thus when the order resolving a collateral attack
becomes final, and any such new rule announced after the finality of such a
collateral attack order is not retroactively applicable .
Thus, a new rule related to an RCr 11 .42 proceeding would generally not
be retroactively applicable to any other case where the order denying the RCr
11 .42 motion was final (that is, having been appealed and affirmed) . As
applied in a case like this one, such a new rule could not be raised by way of a
CR 60 .02 motion used to collaterally attack an RCr 11 .42 order.
In this case, the order denying Appellant's RCr 11 .42 motion is therefore
the relevant judgment. Appellant's RCr 11 .42 collateral attack was denied in
1996 and the order was affirmed in 1999, making it "final" for almost seven
years when Martin was decided . Thus, if Martin announced a new rule, it
cannot be retroactively applied to Appellant's case to reopen the RCr 11 .42
proceedings.
Resolution of Appellant's current claim then turns on whether Martin
announced a "new rule" of procedure. As noted in Teague, "[i]t is admittedly
often difficult to determine when a case announces a new rule . . . ." 489 U.S .
at 301 . The Supreme Court chose to employ the following guideline : "In
general . . . a case announces a new rule when it breaks new ground or
imposes a new obligation on the States or the Federal Government . To put it
differently, a case announces a new rule if the result was not dictated by
precedent existing at the time the defendant's conviction became final." Id .
(citations omitted) . Again, this Court finds this standard to be the appropriate
one in determining whether a rule is "new" for the purposes of retroactivity .
Recognizing that this Court might employ a standard at least similar to
that in Tea ue, Appellant argues that Martin did not announce a new rule and
that it instead merely clarified the law that had been established in an earlier
case, Humphrey v. Commonwealth , in which several claims of ineffective
assistance of counsel related to failures to object at trial were raised on direct
appeal. The Martin Court cited the following language from Humphrey:
[A] better approach would have been to have presented the
unpreserved errors, if such could have been done in good faith, as
palpable error under RCr 10.26 . If that approach had been taken
unsuccessfully, an ineffective assistance of counsel claim based on
those unpreserved errors would still be available in a collateral
attack proceeding.
6 It is worth noting that Appellant's claim that Martin merely clarified the law
undercuts any claim that the CR 60.02 motion was filed in a "reasonable time," since
it was filed approximately seven years after the order denying the RCr 11 .42 became
final and eight years after Humphrey supposedly became the law. However, the
timeliness of the CR 60.02 motion is not at issue in this appeal, though the
Commonwealth discusses it, because the trial court expressly found that the motion
was timely filed, yet no appeal of that finding was taken.
15
Id. at 873, quoted in Martin, 207 S .W.3d at 2 .
The rule in Martin , however, was not dictated by this language, which
was merely obiter dictum, or by any other then existing case law . In fact, the
language was contradicted by the Sanborn line of cases, which began after
Humphrey was decided. Clearly then, Martin broke new ground by allowing
claims that were procedurally barred under the prior case law. Therefore, this
Court can only conclude that instead of "clarifying the law," Martin established
a new rule .
Finally, Appellant claims that this Court's own procedural rules allow
him to avoid the general rule against retroactive application of a decision . He
first argues that the purpose of CR 60 .02, under which the motion giving rise
to this appeal was filed, is to allow a court to correct a mistake . Thus, he
claims barring retroactive application would undermine the purpose and
language of the rule . This is incorrect. As Appellant correctly notes, CR 60.02
replaced the common law writ of coram nobis. That writ, however, was aimed
at correcting factual errors, not legal errors . Barnett v. Commonwealth, 979
S .W .2d 98 (Ky. 1998) . Appellant is not seeking remediation of a factual error;
rather, he is seeking to correct the legal decision that his ineffective assistance
claims were procedurally barred, a decision that was correct under the case
law in existence at the time .
A change in the law simply is not grounds for CR 60 .02 relief except in
"aggravated cases where there are strong equities." Reed v. Reed, 484 S . W.2d
844, 847 (Ky. 1972) . This is not such a case. Appellant has received
significant direct and collateral review at the state and federal levels since his
16
conviction some 25 years ago . His previous sentence has been reduced by
gubernatorial order. The equities do not weigh in favor of using CR 60 .02 to
apply Martin 's change in the law to Appellant's case .
Appellant also argues that because new rules are frequently announced
and applied in the appeals of RCr 11 .42 decisions, even though the convictions
addressed by those motions are final, the same relief should be available to him
to avoid inconsistency by this Court. He notes specifically that the defendant
in Martin effectively enjoyed the retroactive application of the new rule because
his direct appeal was concluded and thus his conviction was final. This
argument was addressed somewhat tangentially above . The defendant in
Martin was able to enjoy the benefit of the new rule because it announced a
new rule of procedure to be applied in RCr 11 .42 proceedings, one of which
was the source of the appeal in that case. Appellant's RCr 11 .42 proceeding
was concluded and final long before Martin was decided .
III. Conclusion
Because Martin announced a new rule of procedure to be applied in RCr
11 .42 proceedings, it cannot be applied retroactively to such collateral attacks
that were final when it was decided. Appellant's case falls squarely within this
proscription . For the forgoing reasons, the order of the Jefferson Circuit Court
is affirmed .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Dennis James Burke
Assistant Public Advocate
Department of Public Advocacy
207 Parker Drive, Suite One
LaGrange, Kentucky 40031
David Michael Barron
Department of Public Advocacy
100 Fair Oaks Lane
Suite 301
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
David A. Smith
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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