Summary
In Kollros, we clearly stated that "The three-year time limit for filing a RCr 11.42 motion may be equitably tolled where the defendant has acted with due diligence to file the motion within the time period."
Summary of this case from Anderson v. CommonwealthOpinion
NO. 2011-CA-002081-MR
10-12-2012
MICHAEL KOLLROS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Michael L. Kollros, Pro Se Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 07-CR-00544
OPINION
AFFIRMING
BEFORE: CLAYTON, KELLER AND MAZE, JUDGES. MAZE, JUDGE: On April 24, 2007, a Fayette County grand jury indicted Michael L. Kollros on one count of murder. Following a trial in August 2007, the jury found Kollros guilty on the lesser-included offense of second-degree manslaughter. The jury fixed his sentence at ten years' imprisonment, which the trial court imposed.
Kollros did not file a timely appeal from his judgment of conviction. However, on March 16, 2010, he filed a motion with this Court to file a belated appeal. After considering the motion, this Court remanded the matter to the Fayette Circuit Court for an evidentiary hearing to determine whether Kollros had implicitly or explicitly waived his right to appeal. Kollros v. Commonwealth, No. 2010-CA-000477-MR (Order entered July 12, 2010).
On remand, the trial court appointed counsel for Kollros and conducted the evidentiary hearing as directed. Following that hearing, the trial court found that Kollros had been advised of his right to appeal by both his counsel and the court. Consequently, the trial court concluded that he had waived his right to an appeal. Based on these findings, this Court denied Kollros's motion to file a belated appeal. Id. (Order entered July 18, 2011).
Shortly thereafter, on July 25, 2011, Kollros filed a pro se RCr 11.42 motion, seeking to set aside his conviction based upon ineffective assistance of counsel. The Commonwealth moved to dismiss because the motion had not been filed within three years after the judgment became final, as required by RCr 11.42(10). The trial court agreed, concluding that the limitation period was not tolled while Kollros's motion for a belated appeal was pending. Kollros now appeals to this Court.
As the Commonwealth correctly notes, RCr 11.42(1) requires any motion filed under the rule to be filed "within three years after the judgment becomes final." As no direct appeal was filed, the judgment of conviction became final 30 days after it was entered, on October 25, 2007. RCr 12.04(3). Therefore, Kollros was required to file his RCr 11.42 motion no later than October 25, 2010. Since Kollros did not file his RCr 11.42 motion until July 25, 2011, it was clearly untimely.
Nevertheless, Kollros argues that his time for filing an RCr 11.42 motion was tolled while his motion to file a belated appeal was pending. We disagree. The three-year time limitation for filing a RCr 11.42 motion may be equitably tolled where the defendant has acted with due diligence to file the motion within the required time period. Robertson v. Commonwealth, 177 S.W.3d 789, 792 (Ky. 2005), overruled on other grounds in Hallum v. Commonwealth, 347 S.W.3d 55 (Ky. 2011). However, the equitable tolling doctrine requires movants to exercise reasonable diligence in pursuit of their rights. Robertson, 177 S.W.3d at 792. See also Holland v. Florida, ___ U.S. ___, 130 S.Ct. 2549, 2565, 177 L.Ed.2d 130 (2010).
In Robertson, the Kentucky Supreme Court declined to expressly adopt a "prison mailbox rule" to determine the timeliness of a prisoner's filing of a RCr 11.42 motion. Instead, the Court adopted a fact-specific equitable tolling rule. However, in Hallum, the Court recognized that the Criminal Rules had been amended to expressly provide for a prison mailbox rule. Consequently, the Court concluded that the equitable tolling test was no longer required.
We find no case law which indicates that the filing of a motion for a belated appeal tolls the time for filing a post-conviction motion under RCr 11.42. But even if the equitable tolling rule does apply, the trial court's previous findings preclude the application of the rule in this case. A belated appeal may be allowed where the right to a first appeal has been lost due to ineffective assistance of counsel. Moore v. Commonwealth, 199 S.W.3d 132, 136-37 (Ky. 2006), citing Commonwealth v. Wine, 694 S.W.2d 689 (Ky. 1985), overruled on other grounds in Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010). But since the trial court found that Kollros had been advised of his right to appeal and had waived that right by failing to appeal, his failure to file a timely appeal was not excused by ineffective assistance of counsel. Therefore, his unsuccessful motion to file a belated appeal could not operate to suspend the finality of his conviction, and the trial court properly denied his motion as untimely.
Accordingly, the November 1, 2011, order by the Fayette Circuit Court denying Kollros's RCr 11.42 motion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Michael L. Kollros, Pro Se
Lexington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky