Opinion
NO. 2014-CA-001424-MR
06-19-2015
KELVIN EUGENE ROBERSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kelvin Eugene Roberson, Pro Se Eddyville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM TRIGG CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL, III, JUDGE
INDICTMENT NO. 84-CR-00036
OPINION
AFFIRMING
BEFORE: CLAYTON, DIXON, AND KRAMER, JUDGES. CLAYTON, JUDGE: Kelvin Eugene Roberson, pro se, appeals from the Trigg Circuit Court's denial of his nunc pro tunc motion regarding the denial of a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion wherein he alleged ineffective assistance of counsel. After careful consideration, we affirm.
BACKGROUND
On February 15, 1985, Kelvin Eugene Roberson was convicted on one count of first-degree burglary, one count of first-degree rape, and one count of theft by unlawful taking over $100. Roberson received a life sentence for the brutal rape of an elderly woman, whom he beat into unconsciousness, plus twenty years for burglary, and five years for theft.
The procedural history of this case is lengthy. On December 7, 1988, Roberson filed an RCr 11.42 motion. On February 22, 1990, the trial court entered an order denying Roberson's motion. Next, Roberson's motion for a belated appeal from his motion for post-conviction relief pursuant to RCr 11.42 was denied on February 9, 2012, by this Court. Subsequently, Roberson filed a second motion for a belated appeal from the February 22, 1990 order of the trial court denying his motion for post-conviction relief pursuant to RCr 11.42, which was denied by a different panel of this Court on August 17, 2012.
Afterward, on July 8, 2014, Roberson filed a nunc pro tunc motion on the RCr 11.42 denial. This motion was denied by the trial court on July 17, 2014. Roberson now appeals this order.
STANDARD OF REVIEW
The standard of review that applies to this Court's review of a lower court's findings is an abuse of discretion standard. "Kentucky Appellate Courts review trial court rulings . . . under an abuse of discretion standard." Miller v . Eldridge, 146 S.W.3d 909, 911 (Ky. 2004). An abuse of discretion standard allows this Court to engage in methodical but deferential examination of the trial court's record and the trial court's finding of fact and rulings. This Court will reverse if the lower court's decision is plain error.
Furthermore, with respect to nunc pro tunc motions, this Court explained in Harris v. Commonwealth, 342 S.W.2d 535 (Ky. 1961), that, with regards to a criminal case, ordinarily there is no need to enter an order nunc pro tunc for a record that is otherwise complete. Additionally, "...it [is] to be the duty of the Court to enter such an order when it appears necessary." Id .
ANALYSIS
Roberson argues that because he allegedly did not receive a copy of the trial court's February 22, 1990 order denying his motion pursuant to RCr 11.42, he is entitled to an order nunc pro tunc. However we disagree and, for the following reasons, affirm the trial court's decision.
It appears as if Roberson is seeking a remedy to carry his RCr 11.42 denial back into Court, with the hope that ultimately he will be granted a new trial. However, there is no remedy here for Roberson. With regard to the case at hand, a nunc pro tunc motion is irrelevant and will grant no relief to Roberson. Although nunc pro tunc is an equitable doctrine, Roberson is misusing it as a collateral attack on the denial of his RCr 11.42 motion.
The trial court will grant a nunc pro tunc motion if it failed to properly enter a judgment that it meant to enter. A nunc pro tunc motion is not another opportunity for a movant to relitigate a case nor is it a motion that should be made in order to simply gain access to the courts and another trial. A nunc pro tunc, which means "now for then," is simply a motion which is ordered when a court previously failed to properly enter an order. For example, a trial court may enter an order nunc pro tunc because of clerical error.
Regarding Roberson's case, the trial court not only meant to enter it's denial of Roberson's RCr 11.42 motion, but also the trial court clerk properly entered the order on February 22, 1990, after the trial court found Roberson's RCr 11.42 motion without merit. Therefore, there is no issue of nunc pro tunc with Roberson's present appeal, as the original denial of the RCr 11.42 motion was properly entered.
Moreover, our Court's orders denying Roberson's motion for belated appeal regarding the RCr 11.42 motion is the law of the case. "The law-of-the-case doctrine is a rule under which an appellate court, on a subsequent appeal, is bound by a prior decision on a former appeal in the same court and applies to the determination of questions of law and not questions of fact. As the term 'law of the case' is most commonly used . . . it designates the principle that if an appellate court has passed on a legal question and remanded the cause to the court below for further proceedings, the legal questions thus determined by the Appellate Court will not be differently determined on a subsequent appeal in the same case." Inman v. Inman, 648 S.W.2d 847, 849 (Ky. 1982).
Additionally, the denial of Roberson's RCr 11.42 motion regarding his indictment has already been ruled on by two separate panels of this Court, and was denied discretionary review by the Kentucky Supreme Court. Consequently, that is the governing law of this case. In cases with multiple appeals, such as the case at hand, Appellate Courts typically preclude the practice of opening previously decided issues. Brown v. Commonwealth, 313 S.W.3d 577, 610 (Ky. 2010). Thus, in the interest of equity and judicial sufficiency, Roberson's nunc pro tunc motion regarding the denial of his RCr 11.42 motion should not be reopened, as Kentucky Courts have already reviewed and made judgment on this issue._
Lastly, Roberson argues that he did not receive notice of the February 20, 1990 denial of his RCr 11.42 motion by the trial court. However, this argument is without merit as Kentucky Rules of Civil Procedure (CR) 77.04(4) provides: "failure of the trial court to require service of notice of entry of any judgment or order under this rule or the failure of the clerk to serve such notice, or the failure of a party to receive notice, shall not affect the validity of the judgment or order, and does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 73.02(1)." Thus, under this rule, the fact that Roberson did not receive notice of the denial of his RCr11.42 motion is irrelevant as it "shall not affect the validity of the judgment or order..." CR 77.04.
The trial court convicted Roberson approximately thirty years ago. Roberson's nunc pro tunc motion concerning the denial of his RCr 11.42 motion was entered twenty-five years ago. Roberson did not even inquire about the RCr 11.42 motion until 1999, which suggests no urgency to know the status of the RCr 11.42 denial.
To conclude, not only were Roberson's appeals untimely, but also Roberson's nunc pro tunc motion is irrelevant and provides him no equitable remedy here. Additionally, Roberson has already petitioned this Court and the Kentucky Supreme Court on the same issue involved in the nunc pro tunc motion and that decision is the law of this case; that is, this Court has affirmed the denial of Roberson's RCr 11.42 motion and it may no longer be adjudicated.
Consequently, Roberson is not entitled to an order nunc pro tunc and thus the trial court did not abuse its discretion in denying the nunc pro tunc motion. Thus, the Trigg Circuit Court's denial of Roberson's nunc pro tunc motion should properly be affirmed.
CONCLUSION
We affirm the decision of the Trigg Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Kelvin Eugene Roberson, Pro Se
Eddyville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky