KY COA July 6 - Denny - IAC of PC Counsel

Denny v. Commonwealth, 2011-CA-1232 (Decided July 6, 2012; unpublished)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

Featured Case - Bennington - Technical Error

Bennington v. Commonwealth, 09-SC-521 (published): 

Appellant was indicted for first degree sodomy allegedly occurring in 1974.  However the first degree sodomy statute did not go into effect until January 1, 1975.   Nevertheless, Appellant was convicted of first degree sodomy.   In the penalty phase, however, the trial court instructed the jury on a penalty range of 1 to 10 years, which corresponded to the penalty range of the closest crime to first degree sodomy existing in 1974, indecent or immoral practices with another, as opposed to the Class A penalty range for first degree sodomy.  There was no objection to this.  While the Court finds this was a technical error, "mere technical error does not necessarily require reversal, especially where the error was not preserved for appellate review and thus only results in reversal if it is palpable and prejudicial."  There was no palpable error because the conduct was criminalized in 1974, and there is no probability of a different result if the jury had been allowed to consider guilt under the predecessor statute of indecent or immoral practices of another.  The Court remands the case to the trial court to amend the final judgment to reflect conviction of indecent or immoral practices of another. 

Justice Cunningham, joined by Justice Scott, filed a dissenting opinion as to this issue, noting the Majority's holding is "slightly bizarre," and observing, "[a]s it stands, this case holds that the circuit court can take jurisdiction of any felony at any time it pleases--as long as the facts developed in the case fit the crime."  The appropriate remedy should have been for the Commonwealth to have had to re-indict Appellant or ask Appellant to agree to be charged by information.

Contributed by Karen Maurer

Featured Case - Nash - Sex Offender Registration

Nash v. Commonwealth

The specific rule of law from the case can be summarized as follows: a person will not have to register as a sex offender if they committed the sex offense before July 15, 1994 and were not incarcerated for that sex offense after July 15, 1998.

The facts: Nash was convicted of Third Degree Sodomy in 1993. He served out his sentence on October 1, 1997. At his release, he was required to register as a sex offender. He pled guilty to two separate failure to register misdemeanor offenses prior to the 2006 amendments. After the 2006 amendments, he entered a conditional guilty plea to a felony charge of failure to register.

The opinion: The Supreme Court held that Nash never should have had to register as sex offender. The Sex Offender Registration Act (SORA) did not take effect until July 15, 1994. It only applied to people convicted of a sex offense after it took effect. The SORA was amended in 1998. It required people to register as sex offenders if they were sentenced or incarcerated for a sex offense after July 15, 1998, the effective date of the amendment. The 2000, 2006, 2007, and 2008 amendments did not apply to Nash either. Thus, the SC concluded that the SORA never should have applied to Nash because he was sentenced before 1994 and served out before 1998. The SC reversed his conviction, remanded his case, ordered the Circuit Court to dismiss his indictment and order his release.

Advice: I think the real practice pointer for trial attorneys is that this case serves as a reminder that they must be diligent and meticulous when handling cases that may have relatively simple facts but deal with complex statutes, such as sex offender registration or persistent felony offender.  Ed Monahan sees this case as an example of what some call “ordinary injustice” in the criminal justice system.  Ordinary injustice is the denials of due process and effective assistance of counsel which occur when systemic pressures are allowed to become more important than individual justice in each case.  

Contributed by Karen Maurer