LANNIE WAYNE MILLER V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : JUNE 25, 2009
;.NOGT . IT
Pt LI S
,;VUyrrMr (faurf -of
2008-SC-000589-MR
9 K~_u
APPELLANT
LANNIE WAYNE MILLER
V.
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2004-CA-001645-MR
WARREN CIRCUIT COURT NOS. 84-CR-00308,
84-CR-00389 AND 84-CR-00416
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Lannie Wayne Miller appeals from a January 30, 2008 Order of the Court
of Appeals denying his motion for appointment of counsel for assistance in his
belated appeal of the Warren Circuit Court's denial of his RCr 11 .42 and CR
60 .02 post-conviction motions . Following his convictions for second-degree
manslaughter and for being a second-degree persistent felony offender, Miller
was sentenced to twenty years' imprisonment by the Warren Circuit Court. In
an opinion rendered on February 6, 1986, No . 85-SC-00243-MR, this Court
affirmed Miller's convictions and sentence . In addition to his direct appeal,
Miller has also filed four RCr 11 .42 motions and three CR 60 .02 motions, all of
which were denied by the circuit court and affirmed by the Court of Appeals.
Q.c
Convinced that the Court of Appeals did not err in denying Miller's request for
appointment of counsel in this instance, we affirm .
RELEVANT FACTS
On October 28, 2003, the Warren Circuit Court entered orders denying
Miller's most recent RCr 11 .42 and CR 60 .02 post-conviction motions . I
Because the Department of Public Advocacy (DPA) attorney previously assigned
to Miller's case had left the DPA to take another job, Miller was mistakenly
never notified that his post-conviction motions had been denied, and as a
result, was not able to file a timely appeal of these orders . On September 15,
2004, Miller filed pro se a motion with the Court of Appeals seeking permission
to file a belated appeal of these post-conviction denials. On October 6, 2004,
the Court of Appeals denied Miller's request, finding that his case did not meet
the criteria for belated appeals set forth in Commonwealth v. Wine, 694 S.W .2d
689 (Ky. 1985), and Merrick v. Commonwealth, 132 S .W.3d 220 (Ky. App .
2004) . Miller filed a pro se motion for discretionary review with this Court,
which was granted . In an order entered on October 12, 2006, No . 2004-SC000877-D, this Court vacated the Court of Appeals order and remanded this
matter with instructions for the court to further consider Miller's motion for a
belated appeal in light of Moore v. Commonwealth, 199 S .W.3d 132 (Ky. 2006) .
On December 5, 2006, the Court of Appeals remanded Miller's case to
the Warren Circuit Court with instructions for the court to hold an evidentiary
The CR 60.02 motion that was denied in 2003 was Miller's third CR 60.02 motion
he had filed with the Warren Circuit Court . The RCr 11 .42 motion denied was
Miller's fourth RCr 11 .42 motion .
hearing to determine whether Miller implicitly or explicitly waived his right to
an appeal. After conducting a hearing, the Warren Circuit Court entered its
findings of fact and conclusions of law on June 29, 2007, ruling that Miller had
not waived his right to appeal the denial of his post-conviction motions. As a
result, Miller filed a second pro se motion with the Court of Appeals to file a
belated appeal of his post-conviction motions, and on August 10, 2007, the
Court of Appeals granted Miller's request. Several months later, on December
5, 2007, Miller filed with the Court of Appeals a motion and request for
appointment of counsel to assist in the preparation of his belated appeal . On
December 21, 2007, the Court of Appeals passed Miller's motion pending a
review by the D PA pursuant to KRS 31 .110 .
On January 23, 2008, the DPA responded to the court's order of review
and recommended that Miller's motion for appointment of counsel be denied,
concluding that this "post-conviction proceeding . . . is not a proceeding that a
reasonable person with adequate means would be willing to bring at his own
expense." KRS 31 .110(2)(c) . After considering the DPA's recommendation and
Miller's own motion, the Court of Appeals agreed that Miller's request did not
meet the guidelines under KRS 31 .110(2)(c) for appointment of counsel and
denied his motion . The Court of Appeals included in its denial instructions for
Miller to file a pro se brief on or before sixty days from the date of its order and
noted that his failure to file a brief within that time period may result in a
dismissal of the appeal. Miller now appeals from the order denying his motion
to appoint counsel .
ANALYSIS
KRS 31 .110(2)(c) provides that an indigent defendant is entitled to be
represented by an attorney in a post-conviction appeal . However, the statute
also states that
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 or her
own expense, there shall be no further right to be
represented by counsel under the provisions of this
chapter .
KRS 31 .110(2)(c) . In Fraser v. Commonwealth, 59 S.W .3d 448, 456 (Ky . 2001),
this Court reiterated that when a movant is "statutorily ineligible for
representation by the DPA" because of the provision in KRS 31 .110(2)(c), a
judge may refuse to appoint counsel for post-conviction appeals .2
Here, the Court of Appeals determined that Miller's appeal of the denial
of two of his post-conviction motions was not "a proceeding that a reasonable
person with adequate means would be willing to bring at his own expense."
Miller has not provided to this Court any valid grounds from which we can
conclude this determination is incorrect. Miller's assertion that a judge cannot
allow the DPA to withdraw as counsel is not particularly relevant to this
matter: this appeal concerns whether Miller should be entitled to the
Miller cites to Commonwealth v. Ivev, 599 S.W.2d 456 (Ky. 1980), for the
proposition that an indigent appellant is always entitled to the appointment of
counsel when he mares such a request . However, Fraser, supra, clearly overruled
that aspect of Ivev and maintained that an indigent appellant is not entitled to the
appointment of counsel if the restriction outlined in KRS 31 .110(2)(c) applies .
Fraser, 59 S.W.3d at 456.
appointment of counsel, not whether the DPA can withdraw from the case. 3
Therefore, the Court of Appeals did not err when it determined that Miller's
belated appeal was not one that a reasonable person with his own means
would pursue and acted within its discretion in denying Miller's request for
counsel to be appointed.
Miller also alleges in his statement of facts that the heading on the DPA's
response to the Court of Appeals' order to review Miller's motion pursuant to
KRS 31 .110(2)(c) lists the incorrect case number . Miller contends that because
of this error, the DPA must have reviewed the wrong file when it concluded that
a reasonable person would not bring this action at his own expense. However,
the DPA's response in the record that was actually filed with the Court of
Appeals includes the correct case numbers and correctly specifies that the
appeal is from Warren Circuit Court. Thus, there is no indication that the DPA
reviewed the wrong file in making its recommendation to the Court of Appeals.
This Court also notes that this finding does not prevent Miller from pursuing
his belated appeal . In denying his request for counsel, the Court of Appeals
specified that Miller could file pro se briefs and that CR 76 .12 provides
adequate and detailed instructions for this process.
CONCLUSION
Despite Miller's argument to the contrary, the Court of Appeals acted
properly when it denied his request for the appointment of counsel. As,
Furthermore, the record indicates that Miller had not been represented by the DPA
and has been filing his own pro se motions since September 15, 2004, when Miller
filed his first motion for a belated appeal.
provided in KRS 13 .110(2)(c), if the appointed counsel along with the court
determine that the appeal is not one that a reasonable person would bring at
his own expense, then an indigent appellant is not entitled to the appointment
of counsel . That is exactly what occurred in this case. Therefore, the January
30, 2008 Order of the Court of Appeals denying Miller's motion for appointment
of counsel is affirmed .
All sitting . All concur.
COUNSEL FOR APPELLANT:
Lannie Wayne Miller
#027741
Kentucky State Reformatory
3001 West Hwy. 146
LaGrange, KY 40032
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
David Bryan Abner
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
