Denny v. Commonwealth, 2011-CA-1232 (Decided July 6, 2012; unpublished)
Brad Denny pled guilty to murder and was sentenced to LIFE in prison. He filed a pro se RCr 11.42 motion which the circuit court denied without holding an evidentiary hearing. His case was reversed by the Court of Appeals and remanded for a hearing. The circuit court held a hearing and again denied his RCr 11.42 motion.
In the instant action, Denny claimed in a CR 60.02 motion that he received ineffective assistance of post-conviction counsel due to failure to raise substantial issues in the RCr 11.42 motion. The Court of Appeals denied the claim, stating that he should have raised the claims in his RCr 11.42 action. While the Court did give lip service to the United States Supreme Court decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), it ultimately refused his claim based on the holding of the Kentucky Supreme Court in Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010) that Kentucky has held that there cannot be a valid claim for ineffective assistance of post-conviction counsel because by Kentucky law, he has no right to the assistance of post-conviction counsel.
In essence, as the Court of Appeals stated, “Because Denny’s ineffective assistance of trial counsel claims could have been asserted in his RCr 11.42 motion, the law in Kentucky states that his CR 60.02 motion fails.”
In a dissent, Justice Stumbo stated, “I would reverse and remand for appointment of counsel so that the trial court can determine whether Appellant can demonstrate ‘that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.’” Martinez, 132 S.Ct. at 1318.
Contributed by Karen Maurer
