Opinion
NO. 2013-CA-000222-MR
03-21-2014
MICHAEL A. DUNN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Matthew M. Robinson Covington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 08-CR-00226
OPINION
VACATING AND REMANDING
BEFORE: CLAYTON, COMBS AND STUMBO, JUDGES. STUMBO, JUDGE: Michael Dunn appeals from an order of the Montgomery Circuit Court which denied his RCr 11.42 motion alleging ineffective assistance of counsel. Dunn raises a number of issues on appeal; however, the Commonwealth concedes that Dunn is entitled to a new trial. We therefore vacate Dunn's conviction and remand for a new trial.
The Commonwealth admits that Dunn is entitled to a new trial because his counsel was ineffective for not objecting to the jury instructions which contained identically worded instructions for each charged offense. The Commonwealth cites to Miller v. Commonwealth, 283 S.W.3d 690 (Ky. 2009), where the Kentucky Supreme Court found such identical instructions to be palpable error and presumptively prejudicial to the defendant. We agree with Dunn and the Commonwealth that this requires a new trial. Dunn raises other issues in his RCr 11.42 motion, but they are moot in light of our decision to remand for a new trial. Any of these other issues can be raised by Dunn with his new trial counsel.
We therefore vacate Dunn's conviction and remand for a new trial.
ALL CONCUR. BRIEFS FOR APPELLANT: Matthew M. Robinson
Covington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky