Opinion
NO. 2013-CA-000183-MR NO. 2014-CA-000886-MR
01-08-2016
BRUCE E. HARTLEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Bruce Hartley, Pro Se LaGrange, Kentucky BRIEFS FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEALS FROM ESTILL CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
ACTION NO. 08-CR-00012 OPINION
AFFIRMING BEFORE: D. LAMBERT, THOMPSON AND VANMETER, JUDGES. THOMPSON, JUDGE: Bruce E. Hartley, pro se, appeals from the denial of a motion for reconsideration of his Rules of Criminal Procedure (RCr) 11.42 motion, and from the denial of his Rules of Civil Procedure (CR) 60.02 motion.
Hartley was convicted after a jury trial of the wanton murder of Angel Riddell, first-degree wanton endangerment of Brenda Davenport and tampering with physical evidence. He was sentenced to a total of thirty-years' incarceration.
The evidence at trial established that Riddell stole money from Hartley's home. After Hartley confronted her, she returned some money but Hartley continued to accuse her of having more of his money. After Davenport drove away with Riddell, Hartley shot at their van and hit Riddell, killing her. Hartley did not testify at trial, but in statements Hartley made to the police he claimed he was trying to fire at the van's tires.
Hartley filed a direct appeal. Among his grounds for error was the trial court's failure to instruct the jury on imperfect self defense. The Kentucky Supreme Court determined this error was unpreserved, reviewed it for palpable error and concluded that no palpable error occurred. Hartley's conviction was affirmed. Hartley v. Commonwealth, No. 2009-SC-000640-MR, 2011 WL 2112393 (Ky. 2011) (unpublished).
On April 30, 2012, Hartley filed an RCr 11.42 motion and requested an evidentiary hearing. Hartley argued as follows: (1) he was denied effective assistance of counsel where trial counsel failed to (a) seek expert assistance from a mental health expert; (b) request recusal of the biased trial court judge; (c) file a motion for a change of venue; (d) investigate or obtain an expert to establish that spinning tires in gravel could be used as a weapon or sound like gunshots; and (2) he was denied a fair trial, due process and equal protection where the Commonwealth withheld exculpatory evidence that Davenport was a police officer.
On August 27, 2012, the circuit court denied Hartley's motion after thoroughly reviewing all his claims. On September 10, 2012, Hartley filed a motion for reconsideration. On January 2, 2013, the circuit court denied Hartley's motion for reconsideration, explaining it lacked jurisdiction to consider the untimely motion and the motion also lacked merit. On January 25, 2013, Hartley filed a timely notice of appeal from the circuit court's order denying his motion for reconsideration.
While this appeal was pending, on February 26, 2014, Hartley filed a CR 60.02(e) motion arguing: (1) trial counsel erred by (a) denying him the right to testify; (b) failing to investigate witnesses; (c) failing to file a motion to suppress based on Hartley's intoxication and request for an attorney; (d) failing to have certain items tested for DNA; (e) failing to object to the distance between Hartley's driveway and the van; (f) failing to call available witnesses; (g) failing to seek a change in venue; and (h) failing to make proper directed verdict motions; (2) trial error because (a) he is actually innocent; (b) the trial court failed to instruct on imperfect self defense; (c) the trial court failed to hold a competency hearing; (d) the Commonwealth violated his right to notice of exculpatory evidence; and (e) his due process rights were violated when the trial court instructed the jury on both intentional and wanton murder; and (3) Hartley was denied effective assistance of counsel for his RCr 11.42 motion.
On April 22, 2014, the circuit court denied Hartley's motion, finding the individual claims to be without merit and foreclosed from consideration because every issue raised was either disposed of on direct appeal or in his RCr 11.42 motion or should have been. Hartley timely appealed.
By order, Hartley's two appeals have been consolidated. We affirm the denial of both of Hartley's motions.
The circuit court's August 27, 2012 order denying Hartley's RCr 11.42 motion was a final and appealable judgment. CR 54.01. Ten days after this order, the circuit court lost jurisdiction over this case because its jurisdiction was not extended by rule or statute. Rollins v. Commonwealth, 294 S.W.3d 463, 466 (Ky.App. 2009). There is no allegation that Hartley did not receive the circuit court's order in a timely manner or that the filing of his motion for reconsideration was delayed by the prison mail system. Therefore, Hartley's September 10, 2012, motion for reconsideration was untimely.
While Hartley's January 25, 2013, appeal was timely as to the denial of his motion for reconsideration, the filing of an untimely motion for reconsideration does not extend the time for filing an appeal on an underlying order. Therefore, while Hartley's appellate brief is solely devoted to arguing the merits of his underlying RCr 11.42 motion, we can only consider whether his motion for reconsideration was properly denied. Because Hartley's motion for reconsideration was untimely, the circuit court acted properly in denying it.
Hartley's appeal of the denial of his CR 60.02 motion on his claims of trial court errors and ineffective assistance of trial counsel is meritless. Hartley has failed to provide any reason why he could not seek relief on these grounds earlier in his previous appeal or RCr 11.42 motion. See Gross v. Commonwealth, 648 S.W.2d 853, 856-57 (Ky. 1983); McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Additionally, his claim that the trial court erred by failing to instruct on imperfect self defense was addressed on direct appeal.
Hartley has only one claim that could not be addressed in his previous appeal or RCr 11.42 motion, that he was denied effective assistance of postconviction counsel for his RCr 11.42 motion. However, this claim is without merit because there is no right to either postconviction counsel or the effective assistance of postconviction counsel. Hollon v. Commonwealth, 334 S.W.3d 431, 437 (Ky. 2010), as modified on denial of reh'g (2011); Bowling v. Commonwealth, 981 S.W.2d 545, 552 (Ky. 1998). See Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) (addressing federal habeas relief not being foreclosed in certain circumstances based on a state procedural default where a prisoner lacked effective assistance of counsel as a matter of equity, rather than finding a constitutional right to postconviction counsel).
Accordingly we affirm the Estill Circuit Court's denial of Hartley's motion for reconsideration and motion for CR 60.02 relief.
ALL CONCUR. BRIEFS FOR APPELLANT: Bruce Hartley, Pro Se
LaGrange, Kentucky BRIEFS FOR APPELLEE: Jack Conway
Attorney General of Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky