Opinion
NO. 2012-CA-000506-MR
01-25-2013
JOHNNY RICE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Johnny Rice, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE DANIEL BALLOU, JUDGE
ACTION NO. 89-CR-00153
OPINION
AFFIRMING
BEFORE: MAZE, MOORE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Johnny Rice brings this pro se appeal from a February 8, 2012, order of the Whitley Circuit Court denying Rice's motion for a copy of the circuit court record of his trial proceedings at state expense. We affirm.
In 1990, Rice entered a guilty plea to the offenses of murder and first-degree robbery. He was sentenced to life imprisonment and twenty-years' imprisonment to be served consecutively. Subsequently, Rice filed a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion. The circuit court denied the motion. On appeal of the denial of the RCr 11.42 motion, Rice's sentence was amended to reflect that the twenty-years sentence be served concurrently with the life sentence. Rice v. Commonwealth, Appeal No. 1995-CA-001773-MR.
Rice then filed a Kentucky Rules of Civil Procedure (CR) 60.02 motion to vacate his sentence of imprisonment. The circuit court summarily denied that motion. No appeal was taken therefrom.
Thereafter, Rice filed the instant motion in circuit court seeking a copy of the circuit court record of his trial proceedings at state expense in order to file a successive CR 60.02 motion. By order entered February 8, 2012, the circuit court denied the motion for a copy of the circuit court record at state expense. This appeal follows.
Rice contends that the circuit court erred by denying his motion to receive a copy of the circuit court record at public expense. We disagree.
Our Supreme Court has held that an indigent criminal defendant is not entitled to a copy of his court record at public expense for the purpose of merely preparing a motion for postconviction relief. Gilliam v. Com., 652 S.W.2d 856 (Ky. 1983). However, if an indigent defendant files a postconviction setting forth a valid basis for relief, a copy of the circuit court record must be provided at state expense. Jones v. Breslin, 385 S.W.2d 71 (Ky. 1964). As Rice has not filed a postconviction motion, we conclude that the circuit court properly denied Rice's motion for a copy of the circuit court record at the expense of the state.
For the foregoing reasons, the Order of the Whitley Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Johnny Rice, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky