Opinion
NO. 2014-CA-000116-MR
05-15-2015
STEVEN HUTCHENS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Margaret Ivie LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 02-CR-002460
OPINION
AFFIRMING
BEFORE: DIXON, JONES AND THOMPSON, JUDGES. DIXON, JUDGE: Steven Hutchens appeals the order of the Jefferson Circuit Court denying post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. We affirm.
In October 2002, Hutchens and a co-defendant, Breck McCracken, were indicted on charges of murder, first-degree robbery, and tampering with physical evidence. Hutchens ultimately pled guilty to the charges, and on October 14, 2003, the court imposed a life sentence pursuant to the recommendation of the Commonwealth. During the plea colloquy, the court questioned Hutchens regarding his understanding of the plea agreement and his satisfaction with his attorney's representation. In the course of answering the court's questions, Hutchens acknowledged killing the victim, stealing the victim's money, and destroying evidence from the crime. The court accepted Hutchens's plea, concluding it was made knowingly and voluntarily.
On October 12, 2006, Hutchens, represented by private counsel, filed an RCr 11.42 motion to vacate his conviction due to ineffective assistance of counsel. The last page of Hutchens's motion was a proposed order granting an evidentiary hearing. The trial judge wrote "Denied," on the proposed order, followed by his signature, and the order was entered by the clerk on October 19, 2006. Hutchens did not appeal the court's order.
More than five years later, Hutchens filed a "Motion Requesting Ruling on Merits of 11.42 Motion," asserting that the court's prior ruling merely denied the request for an evidentiary hearing. The Commonwealth objected, contending the court's prior ruling summarily denied the RCr 11.42 motion. In December 2013, the circuit court issued an order denying RCr 11.42 relief, asserting that Hutchens's motion had previously been denied by the court on October 19, 2006. The court also briefly addressed the standard for establishing ineffective assistance of counsel and concluded the record indicated Hutchens received effective representation from his trial attorney. This appeal followed.
We decline to address Hutchens's claims of ineffective assistance because they are procedurally improper. In Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983), the Kentucky Supreme Court outlined the availability of post-conviction relief as follows:
[A] defendant is required to avail himself of RCr 11.42 while in custody under sentence or on probation, parole or conditional discharge, as to any ground of which he is aware, or should be aware, during the period when this remedy is available to him. Final disposition of that motion, or waiver of the opportunity to make it, shall conclude all issues that reasonably could have been presented in that proceeding.
In this case, Hutchens did not appeal the trial court's October 19, 2006, denial of relief. Five years later, Hutchens sought to breathe new life into his RCr 11.42 claims by requesting a ruling on the merits of his motion. As the trial court correctly pointed out, Hutchens's motion had previously been denied in 2006. The Kentucky Supreme Court has explained, "when a prisoner fails to appeal from an order overruling his motion to vacate judgment or when his appeal is not perfected or is dismissed, he should not be permitted to file a subsequent motion to vacate . . . ." Lycans v. Commonwealth, 511 S.W.2d 232, 233 (Ky. 1974). Hutchens failed to appeal the initial denial of RCr 11.42 relief; consequently, we will not entertain his belated attempt to raise those issues in this proceeding. As the Court stated in Gross, "We should not afford the defendant a second bite at the apple." Gross, 648 S.W.2d at 857. We have thoroughly reviewed the record in this case and conclude the trial court properly denied Hutchens's motion.
For the reasons stated herein, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Margaret Ivie
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky