Opinion
NO. 2012-CA-000390-MR
02-08-2013
TERRY W. TYLER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Terry Wayne Tyler, Pro Se Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Christian K.R. Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 87-CR-00021
OPINION
AFFIRMING
BEFORE: CLAYTON, LAMBERT, AND VANMETER, JUDGES. LAMBERT, JUDGE: Terry Tyler appeals from the Henderson Circuit Court's denial of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion alleging ineffective assistance of appellate counsel. Because we agree with the Commonwealth that Tyler's claims are time-barred and because this is one of many successive motions, we affirm.
Tyler is currently serving a life sentence for a 1987 conviction for burglary, robbery, and being a persistent felony offender in the second degree. In the twenty-five years since his conviction, Tyler has filed numerous post-conviction motions and appeals. A lengthy, three-page discourse regarding those appeals was recently outlined by this Court in Appeal No. 2009-CA-002355-MR, detailing Tyler's numerous Kentucky Rules of Civil Procedure (CR) 60.02 and RCr 11.42 motions throughout the years.
Since his last appeal, Tyler filed yet another RCr 11.42 motion, this time claiming ineffective assistance of appellate counsel (IAAC). The Henderson Circuit court granted Tyler's in forma pauperis motion but denied his RCr 11.42 motion for three reasons: 1) the claim was time-barred pursuant to RCr 11.42's three-year statute of limitations; 2) IAAC claims are not retroactively cognizable; and 3) the claim was a successive RCr 11.42 motion. Tyler timely tendered his notice of appeal and motion to proceed in forma pauperis. This pro se appeal follows.
On appeal, Tyler argues that the trial court improperly held that his RCr 11.42 motion was untimely filed. We disagree for several reasons. First, Tyler's judgment of conviction was affirmed by the Kentucky Supreme Court on March 3, 1988. RCr 11.42(10) requires all claims to be raised within three years of the judgment's finality. Thus, his motion, filed almost twenty-five years later, is outside the three-year statute of limitations. Tyler argues that Palmer v. Commonwealth, 3 S.W.3d 763 (Ky. App. 1999), supports his argument that his motion was timely filed. However, in that case, this Court held that the time for filing a motion to vacate a conviction and sentence runs from the appellate court's judgment on direct appeal, rather than from the date of the trial court's conviction. Id. at 764-765. Thus, even under Palmer, the time for filing an RCr 11.42 expired many, many years ago. Further, the record indicates that the facts upon which the claim is predicated were known to Tyler at the time of his original appeal and his prior RCr 11.42 motions, or at the very least could have been ascertained by the exercise of due diligence. See RCr 11.42(10). Thus, the exception to the three-year statute of limitations does not apply.
The essence of Tyler's argument on appeal is that his appellate counsel failed to raise palpable error arguments regarding lesser-included jury instructions in his direct appeal to the Supreme Court. Hollon v. Commonwealth, 334 S.W.3d 431, 439 (Ky. 2010), which established IAAC as a cognizable claim in Kentucky, has a "prospective effect only." The Court explained:
Our ruling is to have prospective effect only. It applies to this case, to cases pending on appeal in which the issue has been raised and preserved, and to cases currently in or hereafter brought in the trial court in which the issue is raised. Prospective application is appropriate because, although our courts have not until now provided a forum for [ineffective assistance of appellate counsel] claims based on an allegedly inadequate appellate brief, the federal courts have provided a forum through habeas review. See Boykin v. Webb, [541 F.3d 638 (6th Cir.2008)]. Kentucky defendants have not, therefore, been denied an opportunity to vindicate their right to effective appellate counsel, and there is thus no need for our decision today to reach back and operate retroactively.An IAAC claim must be brought within a timely filed RCr 11.42 motion. Sanders v. Commonwealth, 339 S.W.3d 427, 434 (Ky. 2011). Because Tyler's RCr 11.42 proceeding, "the sanctioned method" for bringing an IAAC claim, has long since been decided and become final, he is barred by the retroactivity provisions of Hollon from presently pursuing his claim. Sanders, 339 S.W.3d at 434.
We also note, as noted previously by this Court in Appeal No. 2009-CA-002355-MR, that Tyler's RCr 11.42 claim is successive. "The courts have much more to do than occupy themselves with successive 'reruns' of RCr 11.42 motions stating grounds that have or should have been presented earlier." Hampton v. Commonwealth, 454 S.W.2d 672, 673 (Ky. App. 1970), quoting Kennedy v. Commonwealth, 451 S.W.2d 158, 159 (Ky. 1970). Tyler was appointed an attorney on August 17, 1988, to assist in his RCr 11.42 claim, and a hearing was held on August 25, 1988. His claim was subsequently denied, and he then filed multiple CR 60.02 motions and another RCr 11.42 claim. In fact, the record reflects that the instant RCr 11.42 motion is Tyler's third bite at the apple. Clearly, the law of the Commonwealth indicates that such successive motions for post-conviction relief are not warranted.
Finally, a review of the record indicates that Tyler's IAAC claim is devoid of merit. He claims he was entitled to a second-degree robbery instruction due to the fact that he believes there was a factual issue about whether he utilized a knife during the commission of the robbery. On direct appeal, the Supreme Court held, "[t]he evidence clearly indicated that Tyler unlawfully entered a building and committed a robbery at knifepoint on a person inside." Thus, Tyler's argument that there was a factual issue about whether he utilized a knife is meritless.
For the foregoing reasons, we affirm the January 24, 2012, order of the Henderson Circuit Court denying Tyler's successive motion for post-conviction relief under RCr 11.42.
ALL CONCUR. BRIEF FOR APPELLANT: Terry Wayne Tyler, Pro Se
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Christian K.R. Miller
Assistant Attorney General
Frankfort, Kentucky