Opinion
NO. 2016-CA-000176-MR
07-28-2017
JOHN M. HOLLAND APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: John M. Holland, pro se New Castle, Indiana BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 74-CR-00889 OPINION
AFFIRMING
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BEFORE: COMBS, D. LAMBERT, AND THOMPSON, JUDGES. LAMBERT, D. JUDGE: John M. Holland brings this appeal from an order denying his motion pursuant to RCr 11.42 in the Muhlenberg Circuit Court. Holland argues his counsel provided ineffective assistance in connection with his parole eligibility. Holland also argues Kentucky forfeited its jurisdiction when he was transferred to Indiana to serve a life sentence. Because Holland did not raise the claim of ineffective assistance of counsel to the circuit court, and because the forfeiture rule upon which Holland relies is no longer recognized in Kentucky, we affirm.
Kentucky Rules of Criminal Procedure.
I. BACKGROUND
Some of the relevant procedural history of this case may be found in Holland's writ of mandamus appeal to this Court:
Holland was convicted of murder in Kentucky and received a life sentence in 1974. The following year, he was convicted of felony murder in Indiana and sentenced to life, concurrent with his life sentence in Kentucky. He was returned to Kentucky to serve his time, and Indiana lodged a detainer against him.Holland v. Frank, 1999-CA-000779-MR, at 1-2 (Ky. App. Feb. 2, 2001). In that case, Holland alleged that he was entitled to a final discharge of his parole under 501 KAR 1:015(1). Id. at 2. In affirming the circuit court's denial of Holland's writ of mandamus, this Court held that he was not entitled to relief under KRS 439.354, noting he "has never been on active parole supervision because he has never been out of prison since the first Kentucky conviction." Id. at 3.
In 1987, the Board recommended that Holland be paroled in order to serve his Indiana sentence. Holland refused to sign his parole certificate for nearly a year and also refused to waive extradition proceedings. He was finally extradited to Indiana in 1993, where he remains incarcerated.
Although this case is not available on Westlaw, it is available on the Kentucky Court of Justice website. http://162.114.92.72/COA/1999-CA-000779.pdf.
Kentucky Administrative Regulations.
Kentucky Revised Statutes.
On January 11, 2016, Holland, pro se, filed a "Motion for Postconviction Relief and Motion for Appointment of Counsel" under RCr 11.42 in the Muhlenberg Circuit Court, requesting the court, inter alia, to grant postconviction relief or to reduce his life sentence to eighty-years' imprisonment. He argued Kentucky forfeited jurisdiction over him when he was transferred to Indiana to serve his sentence. The circuit court denied Holland's motion, finding that Holland had not alleged any appropriate ground for relief under RCr 11.42. This appeal followed.
II. DISCUSSION
On appeal, Holland argues the circuit court erred when it did not appoint him counsel. Holland also argues his counsel was ineffective. According to Holland, his counsel advised him that he would be eligible for parole and that he would be finally discharged from parole after one year. Holland concluded with arguments that Kentucky forfeited its jurisdiction upon his transfer to Indiana and that he is entitled to be finally discharged of his parole under KRS 439.354 because he is on active parole. We review Holland's first argument at the conclusion of the opinion to determine whether any of his claims requires the appointment of counsel.
Every defendant is entitled to reasonably effective—but not necessarily errorless—counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011). In order to prove ineffective assistance of counsel, a defendant must show: (1) that counsel's representation was deficient in that it fell below an objective standard of reasonableness; and (2) that he was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). There is a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Bratcher v. Commonwealth, 406 S.W.3d 865, 869 (Ky. App. 2012) (citations omitted).
The Commonwealth contends that Holland's motion is both untimely and successive. Under RCr 11.42(10), a movant must file "within three years after the judgment becomes final, unless the motion alleges and the movant proves . . . that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence . . . ." RCr 11.42(3) provides as follows: "The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding." Although it is not included in the record, a copy of the circuit court's docket sheet reflects that Holland filed an RCr 11.42 motion on June 3, 1982, and that the court denied it on December 9, 1982. Holland concedes he filed a previous RCr 11.42 motion in his reply brief.
Holland argues that he failed to include his arguments in his original RCr 11.42 motion for two reasons. First, he asserts that when he filed his original RCr 11.42 motion, "Indiana Code Section [IC] 11-13-3-2(b)(3) was not in effect and [he] had no way of knowing it would be applied to him." This argument is dubious at best; Holland also states in his reply brief that IC 11-13-3-2(b)(3) went into effect in 1980, while acknowledging that he filed his first RCr 11.42 motion in 1982. Holland has failed to provide a reason why he could not have become aware of the law's application to him during the two years between the time the law was enacted and he filed he filed his motion.
Additionally, Holland has included in the record a memorandum from the State of Indiana's Office of the Attorney General, responding to his request for parole. This memorandum, dated April 25, 1996, denies Holland relief while referencing IC 11-13-3-2(b)(3). Therefore, Holland must have been actually aware of its application to him since 1996. Still, Holland waited until January 11, 2016—approximately twenty years later—to file the present motion. This delay exceeds mere untimeliness.
Second, Holland argues that his motion was not untimely because he attempted to exhaust his avenues of relief in Indiana prior to filing this motion. This is insufficient to toll the timing of his RCr 11.42 motion. See Moorman v. Commonwealth, 484 S.W.3d 751, 757 (Ky. App. 2016).
Because Holland has not provided a sufficient reason why he could not have raised these claims in his original RCr 11.42 motion, his motion was untimely and successive. Although the trial court did not address the motion's timeliness or find that the motion was successive, we may affirm a lower court for any reason supported by the record. See McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009). Even if Holland's motion were not untimely or successive, however, we would affirm.
Holland contends that his counsel was ineffective for advising him that he would be eligible for parole and that he would be finally discharged from parole after one year. We agree with the Commonwealth that Holland failed to raise this issue below. Where an appellant fails to raise an issue in the circuit court, it may not be presented for the first time on appeal. Jones v. Commonwealth, 239 S.W.3d 575, 578 (Ky. App. 2007). Therefore, we will not consider this argument.
Palpable error review is an exception to this rule found under RCr 10.26, but Holland has not requested it. "Absent extreme circumstances amounting to a substantial miscarriage of justice, an appellate court will not engage in palpable error review pursuant to RCr 10.26 unless such a request is made and briefed by the appellant." Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008).
Next, Holland alleges that Kentucky relinquished jurisdiction over him when he was transferred to Indiana to serve his sentence because Kentucky's governor did not approve it. To support his argument, Holland cites to the "forfeiture rule" in Thomas v. Schumaker, 360 S.W.2d 215 (Ky. 1962), overruled by Commonwealth v. Hale, 96 S.W.3d 24 (Ky. 2003). The "forfeiture rule" provided "that the state forfeits its jurisdiction when local authorities release a prisoner to another state without following proper administrative or statutory procedures." Hale, 96 S.W.3d at 30 (quoting Shull v. Wingo, 446 S.W.2d 645, 646 (Ky. 1969)). However, the Kentucky Supreme Court has expressly overruled the forfeiture rule, id. at 37-38, and so this argument is without merit.
Holland next argues that his parole should be discharged under KRS 439.354. In the opinion denying his petition for a writ of mandamus, this Court held that Holland was not entitled to be released under KRS 439.354 because he had never been on active parole. Holland, 1999-CA-000779-MR at 3; KRS 439.354(1). Holland has provided no reason to depart from that holding, and we decline to do so.
Finally, Holland argues that he was entitled to appointed counsel below. He also requests an evidentiary hearing. An evidentiary hearing is only required "if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001) (citations omitted). However, "[i]f an evidentiary hearing is not required, counsel need not be appointed, 'because appointed counsel would [be] confined to the record.'" Id. at 453 (quoting Hemphill v. Commonwealth, 448 S.W.2d 60, 63 (Ky. 1969)). Because Holland's claims can be conclusively resolved on the face of the record, he was not entitled to the appointment of counsel or an evidentiary hearing.
For the foregoing reasons, the order of the Muhlenberg Circuit Court denying Holland relief under RCr 11.42 is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: John M. Holland, pro se
New Castle, Indiana BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky