Opinion
NO. 2012-CA-001412-MR
06-27-2014
GABRIEL DION NELSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Aaron Reed Baker Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 08-CR-000382
OPINION
REVERSING AND REMANDING
BEFORE: CLAYTON, NICKELL AND THOMPSON, JUDGES. THOMPSON, JUDGE: Gabriel Dion Nelson appeals from the summary denial of his RCr 11.42 motion.
In 2008, Nelson fled from the police in his vehicle. In a resulting accident, his passenger died and another motorist was injured. Nelson was indicted for murder, second-degree assault, first-degree fleeing or evading police, first degree wanton endangerment, two counts of first-degree criminal mischief, reckless driving, speeding and being a first-degree persistent felony offender (PFO I). In 2009, pursuant to a plea agreement, the murder charge was amended to second-degree manslaughter and Nelson was sentenced to concurrent PFO I sentences of twenty-years' incarceration on each felony.
After the time expired to file a direct appeal, Nelson filed a motion for a belated appeal with the Kentucky Supreme Court. The Kentucky Supreme Court remanded the case to the circuit court for a hearing and determination of whether Nelson's failure to file a timely appeal was attributable to ineffective assistance of counsel. Following an evidentiary hearing, the circuit court concluded Nelson was not entitled to a belated appeal and the Kentucky Supreme Court subsequently denied Nelson's motion.
On April 24, 2012, Nelson filed his first motion pursuant to RCr 11.42 alleging ineffective assistance of counsel and requesting an evidentiary hearing. Because the Commonwealth erroneously believed Nelson filed a prior RCr 11.42 motion, the Commonwealth's response alleged Nelson's motion was procedurally barred as a successive RCr 11.42 motion. In his reply, Nelson denied filing a previous RCr 11.42 motion.
On May 21, 2012, the circuit court summarily denied Nelson's RCr 11.42 motion on the basis that successive RCr 11.42 motions are procedurally barred and his allegations could be resolved through the record.
Nelson appealed. He argues, and the Commonwealth concedes, that the record refutes the circuit court's finding that Nelson previously filed an RCr 11.42 motion and, accordingly, its opinion must be reversed.
We review the circuit court's findings of fact under the clearly erroneous standard. Commonwealth v. Bussell, 226 S.W.3d 96, 99 (Ky. 2007). The record conclusively refutes its finding that Nelson filed a previous RCr 11.42 motion. Therefore, the circuit court erred by summarily denying Nelson's RCr 11.42 motion as successive. Accordingly, we reverse and remand.
Nelson additionally argues we should order the circuit court to hold an evidentiary hearing because his allegations of ineffective assistance of counsel are not refuted by the record; the Commonwealth disagrees. Where an RCr 11.42 motion is summarily denied on incorrect procedural grounds, the proper remedy is to allow the circuit court to review the motion on the merits. See Palmer v. Commonwealth, 3 S.W.3d 763, 764 (Ky.App. 1999). On remand, the circuit court shall determine whether the allegations in the motion can be based on the record or whether an evidentiary hearing is required. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
Accordingly, we reverse and remand the Jefferson Circuit Court's opinion and order denying Nelson's RCr 11.42 motion.
ALL CONCUR. BRIEF FOR APPELLANT: Aaron Reed Baker
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky