Opinion
NO. 2012-CA-000923-MR
05-16-2014
FREDRICK HANNAH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Fredrick Hannah, Pro se Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 04-CR-00459
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; JONES AND VANMETER, JUDGES. VANMETER, JUDGE: Fredrick Hannah appeals pro se from the McCracken Circuit Court order denying his second pro se post-conviction motion for RCr 11.42 relief and motion for an evidentiary hearing. We find Hannah's successive RCr 11.42 motion violates RCr 11.42(3) and is procedurally barred. For that reason, we affirm.
Kentucky Rules of Criminal Procedure.
Hannah is currently serving a twenty-year sentence for manslaughter in the first degree. He pled guilty after a jury convicted him to avoid the sentencing phase, during which his prior murder conviction would have been introduced, as well as the charge of persistent felony offender in the second degree ("PFO2"), which would have increased his potential maximum prison sentence to fifty years. Pursuant to the plea agreement, the PFO2 charge was dismissed and the Commonwealth recommended a twenty-year sentence for manslaughter in the first degree, which the trial court imposed.
Hannah's conviction and guilty plea to manslaughter in the first degree occurred on retrial. Hannah was originally convicted of murder and sentenced to life imprisonment without parole. On direct appeal, the Kentucky Supreme Court reversed and remanded for a new trial, finding that the trial court erred by prohibiting Hannah from questioning the jury pool during voir dire as to any prejudices they may have had concerning a duty to retreat and by prohibiting him from arguing in his closing argument that he had "no duty to retreat." Hannah v. Commonwealth, 306 S.W.3d 509 (Ky. 2010).
Thereafter, Hannah filed two pro se RCr 11.42 motions, alleging his trial counsel rendered ineffective assistance by presenting a self-defense argument to the jury, instead of a defense of extreme emotional distress ("EED"), which Hannah claims better suits the facts of this case and would have resulted in a lesser sentence. Hannah filed his first pro se RCr 11.42 motion on February 14, 2012, which the trial court denied by order entered February 22, 2012. Hannah did not appeal from that order. Hannah filed his second pro se RCr 11.42 motion on February 27, 2012, which the trial court denied by order entered May 3, 2012. From that order Hannah now appeals.
We note that Hannah was granted permission by the trial court to represent himself as co-counsel and the Department of Public Advocacy ("DPA") was ordered to act as standby counsel.
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RCr 11.42(3) provides that the motion "shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding." The Commonwealth maintains that Hannah was not permitted to file successive RCr 11.42 motions and that his failure to appeal from the order denying his first motion precludes him from seeking appellate relief from the denial of his second motion. We agree.
In Case v. Commonwealth, 467 S.W.2d 367 (Ky. 1971), Kentucky's highest court addressed a similar scenario and held that the defendant's second RCr 11.42 motion was procedurally barred pursuant to RCr 11.42(3). Id. at 368. In Case, the defendant filed an RCr 11.42 motion through counsel, which the trial court denied after conducting an evidentiary hearing. Id. An appeal was attempted but never perfected. Id. Case then filed a second pro se motion pursuant to RCr 11.42. Id. The trial court denied that motion, ruling that all grounds raised by Case in the second motion were in the first motion, or could have been, and therefore could not be raised again. Id.
On appeal, the Case court noted that pro se pleadings prepared by a prisoner are not to be held to the same standard as those prepared by legal counsel and are often construed liberally. A pro se litigant, nevertheless, "must accommodate the court by specifying all of the complaints of which he has knowledge and which 'could reasonably have been presented' so that one careful and complete consideration of his application will conclude the litigation and the courts and the bar will not be required again to devote time and effort to his cause." Id. The court found nothing in the second RCr 11.42 motion which was not or could not have been presented originally and thus affirmed the trial court. Id.
Likewise, in the case at bar, we find nothing in Hannah's second RCr 11.42 motion which was not or could not have been presented in his first RCr 11.42 motion. Accordingly, we affirm the trial court's denial of his second RCr 11.42 motion.
The McCracken Circuit Court order is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Fredrick Hannah, Pro se
Burgin, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky