Opinion
NO. 2015-CA-000774-MR
01-15-2016
RONNIE WHALEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Ronnie Whaley, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
ACTION NOS. 09-CR-00372 & 10-CR-00368 OPINION
REVERSING AND REMANDING BEFORE: KRAMER, D. LAMBERT AND STUMBO, JUDGES. STUMBO, JUDGE: Ronnie Whaley appeals from an order denying his RCr 11.42 motion seeking to set aside his conviction due to ineffective assistance of counsel. On appeal, Appellant argues that his counsel was ineffective for failing to object to inadequate jury instructions, failing to properly prepare for the case and know the relevant law surrounding his charges, and failing to argue the "immediate control test" in relation to the firearm he was charged with possessing. We reverse and remand in this case because the trial court failed to rule on these three arguments. Appellant also argues that he should not have been charged a filing fee for his appeal. Because Appellant was found to be indigent, he should be reimbursed his fee.
Kentucky Rule of Criminal Procedure.
On November 29, 2011, Appellant was convicted of trafficking in a controlled substance (cocaine) in the first degree while in possession of a firearm, possession of a handgun by a convicted felon, using a restricted ammunition during a felony, possession of drug paraphernalia, trafficking in marijuana under eight ounces while in possession of a firearm, wanton endangerment in the first degree, and tampering with physical evidence. After the finding of guilt, but before sentencing, Appellant entered into a plea agreement and was sentenced to thirty years in prison. On December 10, 2014, Appellant filed his RCr 11.42 motion alleging eleven instances of ineffective assistance of counsel. The motion was denied without an evidentiary hearing. This appeal followed.
Only three of the eleven instances of alleged ineffective assistance of counsel are raised on appeal. The Commonwealth, citing Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983), argues that these issues are precluded from review because they should have been brought on direct appeal and an RCr 11.42 motion cannot be used to litigate issues that should have been brought on direct appeal. We disagree. While the Gross line of cases used to be the law in Kentucky, the Kentucky Supreme Court in Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009),
recognized the difference between an alleged error and a separate collateral claim of ineffective assistance of counsel related to the alleged error, and held that a claim of the latter may be maintained even after the former has been addressed on direct appeal, so long as they are actually different issues.Id. at 158 (footnote omitted). In the case at hand, Appellant is raising legitimate ineffective assistance of counsel issues.
Unfortunately, we are unable to rule on said issues. As previously stated, Appellant raised eleven ineffective assistance of counsel issues. In its order denying Appellant's RCr 11.42 motion, the trial court only discussed seven of the issues raised. After the trial court entered its order, Appellant filed a motion to reconsider in which he brought to the court's attention its failure to rule on the three issues currently on appeal. This motion was denied two days later by a signed and dated notation on the motion which merely said "Motion denied."
Appellant only appeals three issues. One issue raised below, cumulative error, was not ruled upon by the trial court and has been abandoned by Appellant on appeal; therefore, it will not be addressed and we deem it waived.
We believe the trial court must first rule on the three issues presented on appeal before we can review; therefore, we reverse and remand for further proceedings.
In addition, Appellant was required to pay a $25 filing fee when he appealed the denial of his RCr 11.42 motion. CR 3.02(1)(a) states that "[t]here shall be no filing fees for . . . proceedings under RCr 11.42[.]" The Commonwealth concedes that this fee was required in error and that Appellant should be reimbursed. We agree. On remand, Appellant shall be reimbursed the $25 fee.
Kentucky Rule of Civil Procedure. --------
ALL CONCUR. BRIEF FOR APPELLANT: Ronnie Whaley, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky