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2016-SC-OOO l 37-DG

DATE§/'B|w \<“:»‘. Q n.l>c. '

COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS_
V. CASE NO. 2014-CA-1307-.MR
‘ MCLEAN CIRCUIT COURT NO. OS-CR-OOOS€
JOHN J. HUGHES _ APPELLEE

M.EMORANDUM OPINIOl\l OF THE COURT
n REVERSING
In 2003, John J. Hughes, Jr. [“Hughes”) pled guilty to four feloniesi
_Murder, Tampering With Physical Evidence, and Forgery in the Second Degree
(tWo counts)_, after bludgeoning his father, John J. Hughes, Sr., to death With a
baseball bat and disposing of the body. In accordance With his guilty plea,
. Hughes received an aggregate twenty~year sentence. Over the course of the
next ten years, I-Iughes filed numerous post-conviction motions seeking to set
aside his guilty plea, arguing in each motion that he should have received an
evidentiary hearing pursuant to KRS1 439.3401(5) to determine whether he
Was exempt from the “Violent offender statute,” and accordingly, not required to
serve 85% of his sentence before eligibility for parole. KRS 439.3401(5)_

exempts lfrom the 85% requirement a person Who has been determined by a

 

1 Kentucky Revised Statutes.

court to have been a victim of domestic violence or abuse pursuant to KRS
533.060 with regard to the offenses involving the death of the victim or serious
physical injury to the victirn. Hughes claims that he killed his father as a
result of suffering physical and mental abuse at the hands of his father
throughout his life, and that this mitigation evidence Should have been
presented at an evidentiary hearing in accordance with KRS 439.340 1'(5).

Two Court of Appeals panels have reviewed the trial COurt’S denial of
Hughes’s successive RCr2 11.42 motions raising the issue of an evidentiary
hearing pursuant to KRS 439.3401(5), and have affirmed. Recently, a third
Court of Appeals panel reversed the trial court’s denial of Hughes’s CR3 60.02
motion, and remanded the case for an evidentiary hearing pursuant to KRS
439.3401 to determine if Hughes qualified for the section (5) exemption.

We granted the Comrnonwealth’s motion for discretionary review to
examine whether the Court of Appeals erred by reversing and remanding this
case for an evidentiary hearing. After thorough review, we conclude that the
Court of Appeals did err, by engaging in retrospective fact-finding, and by
adjudicating an issue that had already been conclusively resolved:
Accordingly, we reverse the Court of Appeals and reinstate the trial court’s

order denying Hughes’s CR 60.02 motion.

 

2 Kentucky Rules of Criminal Procedure.
3 Kentucky Rules of Civil Procedure.

2

I. FACTUAL AND PROCEDURAL HISTORY.

In 2003, after bludgeoning his father, John J. Hughes, Sr., to death with
a baseball bat, Hughes Wrapped- his father’s body in plastic and dropped it into
a well on his property. Hughes later confessed to these actions after police
began investigating the disappearance of his father. ln his confession, Hughes
told police that his father had sexually abused him as a child, from birth until
he was fourteen, and then mentally abused him his entire adult life.4 Hughes
told police that he had gone to his father’s house that day to confront him
about the abuse; he woke his father up from a nap to talk, but his father
became irate and threatened to rape him. Hughes told police that }he “lost it,”
grabbed a baseball bat lying near the couch and began beating his father over
the head.

During the investigation, police officers found evidence of pedophilia in
John J. Hughes, Sr.’s possessions, including photographs of young males,
some of which may have been Hughes. In the Uniform Offense Report, the
officers noted that “John J. Hughes, Jr. could have been the victim of sexual
abuse by his father, and killed him due to this fact.” The report further states
that officers “advised John Jr. that he might be the victim of sexual abuse.”

The Presentence Investigation Report contains Hughes’s allegations of sexual

and physical abuse against his father.

 

4 Hughes was twenty~seven years old when he killed his father, and living with
his girlfriend at that time.

Hughes filed, pro se, his first RCr 1 1.42 motion in 2004, alleging that h_is
trial counsel had rendered ineffective assistance by failing to move for an
evidentiary hearing to determine if Hughes fit the requirements for the
exemption from KRS 439.3401. In his motion, Hughes claimed that he killed
his father as a result of his father having physically and mentally abused him
throughout his life, and argued that his trial counsel was ineffective by failing
to investigate the alleged sexual and physical abuse, failing to prepare a
defense and coercing him into pleading guilty. The trial court denied Hughes’s

'RCr 11.42 motion, holding that the record refuted any claims of ineffective
assistance Hughes appealed; the Court of Ap`peals affirmed5 Hughes did not
seek discretionary review of the Court of Appeals’ decision.

In 2008, Hughes filed another motion pursuant to RCr 1 1.42, now
represented by counsel, seeking an evidentiary hearing to determine whether
he qualified lfor the KRS 439.3401(5) exemption. The trial court denied his
motion as successive and untimely Hughes did not appeal-. In 2012, Hughes,
pro se, filed again for an evidentiary hearing pursuant to KRS 439.3401(5),
Which the trial court denied. Hughes appealed, the Court of Appeals affirmed,
deeming Hughes’s motion successive and precluded by the law of the case
doctrine.6 Again-, Hughes did not seek discretionary review of the Court of

Appeals’ decision.l

\

 

5 Hughes v. 'Commonwealth, No. 2005-CA-000416-'MR, 2006 WL 7_3738 [Ky.
App. Jan. 13, 2006) (unpublished) (hereinafter Hughes I).

6 Hughes v. Commonwealth, No. 2013-CA-000068-MR, 2013 WL 5777142 (Ky.
App. Oct. 25, 2013) (unpublished) (hereinafter Hughes H).

4

In 2014, Hughes filed a motion pursuant to CR 60.02(€)-(1], seeking to
modify his judgment, and asserting that his guilty plea was involuntary, and
therefore invalid, because he was not afforded the opportunity to present
mitigation evidence under KRS 439.3401(5). Hughes also asserted that he had
acted under extreme emotional distress, was actually innocent pursuant to the
“castle doctrine,” and that his sentence was disproportionate.7 The trial court
denied the motion, noting that Hughes had already presented the KRS
439.3401 claims in prior post-conviction motions without success, and that the
issue was, or could have been, raised in other proceedings and thus was not
properly before the court via CR 60.02. Hughes appealed On appeal, the
Comrnonwealth asserted two procedural bars: 1) Hughes’s 60.02 motion was
not filed in the required reasonable time, and 2) the law of the case doctrine
and principles of res judicata bar re-litigation' of this issue.

On February 19, 2016, the instant Court of Appeals panel reversed the
trial court, and remanded this case for an evidentiary hearing on Hughes’s
claims of ineffective assistance of counsel for allegedly failing to pursue an

exemption pursuant to KRS 439.§»40`1(5), as well as for an evidentiary hearing

 

7 Hughes claims actual innocence pursuant to the “castle doctrine,” but cites
KRS 503.050. KRS 503.055 actually pertains to the “castle doctrine.” Jones v.
Commonwealth, 366 S.W.3d 376, 379 [Ky. 201 1). The Court of Appeals found the
“c:astle doctrine” inapplicable to this case, and therefore reviewed Hughes’s claim
pursuant to KRS 503.050(1], Which justifies the use of deadly force upon another in
certain circumstances involving self-defense. Since the Court of Appeals reversed and
remanded on the issues of ineffective assistance of counsel, it declined to review
Hughes’s claim that his sentence was disproportionate to sentences that other

criminal defendants who were sentenced to lesser included offenses of murder have
received.

regarding whether Hughes received ineffective assistance due to his counsel’s
failure to argue self-defense on Hughes’s behalf.8 The Commonwealth
petitioned this Court for discretionary review, which we granted.

II. ANALYSIS.

Hughes’s CR 60.02 motion is procedurally barred, both as untimely and
successive Hughes has raised the issue of his entitlement to a hearing
pursuant to KRS 439.3401(5] in every post-conviction motion he has iiled,
including the instant CR 60.02 motion. Kentucky law does not permit
redundant, successive post-conviction motions or the re-litigation of claims
already conclusively resolved.

Our rules governing review of a trial court's final judgment in a criminal
case are meant to be organized and complete As this Court has stated,

The structure provided in Kentucky for attacking

the final judgment of a trial court in a criminal case is

not haphazard and overlapping, but is organized and

complete That structure is set out in the rules related

to direct appeals, in RCr l 1.42, and thereafter in CR

60.02.
Gross 1). Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). “CR 60.02-. . . is for
relief that is not available by direct appeal and not available under RCr 1 1.42.

The movant must demonstrate why he is entitled to this special, extraordinary

relief.” Id. Where the alleged unconstitutional act could have been raised in an

 

8 Hughes v. Commonwealth, No. 2014-CA-001307-MR, 2016 WL 67 5952 (Ky.
App. Feb. 19, 2016] (unpublished) (hereinafter Hughes H]].

6

earlier proceeding, this court has refused to grant CR 60.02 relief. See id. at

857.

A defendant who is in custody under sentence . . . is
required to avail himself of RCr l 1.42 as to any ground
of which he is aware, or should be aware, during the
period when the remedy is available to him. Civil Rule
60.02 is not intended merely as an additional
opportunity to relitigate the same issues which could
“reasonably have been presented” by direct appeal or
RCr 11.42 proceedings.

McQueen 1). Commonwealth 948 S.W.2d 415, 416 (Ky. 1997) (citations
omitted). “Indeed, RCr 1 1.42(3) makes clear that the movant shall, in his RCr
l 1.'42 petition, state all grounds for holding the sentence invalid of which the
movant has knowledge Thus, final disposition of a movant's RCr 11.42 motion
shall conclude all issues which could reasonably have been presented in the
same proceeding.” Foley 1). Commonwedlth1 425 S.W.3d 880, 884 (Ky. 2014)
(citations omitted). The importance of finality in criminal cases is firmly rooted
in Kentucky jurisprudence
In his CR 60.02 motion, Hughes attempts to re-litigate his previous RCr

11.42 claims - claims that could have been, and were, already raised. The
current Court of Appeals panel reasoned that

[r]egarding whether Hughes brought these claims

within a reasonable time, we note that Hughes initially

brought this_claim in his first RCr 11.42 motion, which

was timely filed approximately one year after his

judgment became iinal, and through no fault of his

own, his motion was denied without a hearing and this

Court erred in its decision on appeal. Because of
these procedural problems, we conclude that his

current claim was filed within a reasonable time under
the facts of this case.9

However, this reasoning erroneously conflates an alleged error in dispensing
with a prior RCr 1 1.42 motion with the extraordinary relief of CR 60.02.
Hughes’s CR 60.02 motion, filed over ten years after his judgment became
iinal, cannot be deemed to have been brought within a reasonable time merely
because the current panel of the Court of Appeals disagrees with prior Court of
Appeals’ opinions on the merits of Hughes’s successive RCr 11.42 claims.
lndeed, the Court of Appeals saw fit to construe Hughes’s CR 60.02 motion as
that of an ineffective assistance of counsel motion under RCr 1 1.42, despite the :
passage of over a decade since Hughes’s ineffective assistance of counsel claim
was first rejected on appeal in 2006. The instant Court of Appeals panel
ultimately concluded that “Hughes has put forth precisely what the law
requires to have his allegations of ineffective assistance of counsel reviewed via
an evidentiary hearing, as his allegations cannot be refuted on the written
record.”10 This reasoning, and the Court’s conclusion, is misplaced. As stated
above, “CR 60.02 . . . is for relief that is not available by direct appeal and not
available under RCr 11.42.” Gross, 648 S.W.2d at 856. Hughes’s current CR
60 .'02 motion is not subject to the same analysis as that of an RCr 11.42

motion.

 

9 Hughes III, No. 2014-CA-001307-MR at *16.
10 Hughes III, No. 20 14-CA-001307-MR at *2_2.

8

The issue of Hughes’s entitlement to an evidentiary hearing under .KRS
439.3401 is also statutorily barred, Hughes raised the KRS 439.3401
exception in his first post-conviction RCr 1 1.42 motion, and sought exemption
from the violent offender act. The trial court denied that motion, and Hughes
did not appeal Pursuant to KRS 439.3402, which governs exemptions from
KRS 439.3401 for victims of domestic violence and abuse, section (7) explicitly
provides that “[o]nly one (l) motion under this section may be filed by the same
offender regarding the same conviction.” Hughes raised, and the trial court
and Court of Appeals ruled on, the issue of a KRS 439.3401(5) evidentiary
hearing numerous times. Statutorily, Hughes was not permitted to raise this
issue more than once l

Further, Hughes’s CR 60.02 claims are precluded by the law of the case

doctrine

The law of the case doctrine is an iron rule,
universally recognized, that an opinion or decision of
an appellate court in the same cause is the law of the
case for a subsequent trial or appeal however
erroneous the opinion or decision may have been, The
doctrine is predicated upon the principle of finality.
The law of the case rule is a salutary rule, grounded
on convenience experience and reason. lt has been
often said that it would be intolerable if matters once
litigated and determined finally could be relitigated `
between the same parties, for otherwise litigation
would be interminable and a judgment supposed to
finally settle the rights of the parties would be only a
starting point for new litigation.

Brooks v. Lexington-Fayette Urban Cnty Hous. Auth., 244 S.W.Bd 747, 751 (Ky.

App. 2007) (internal citations and quotations omitted).

In other words, the law of the case doctrine and res judicata “precludes
an appellate court from reviewing not just prior appellate rulings, but decisions
of the trial court which could have been but were not challenged in a prior
appeal.” Brown 1). Commonwealth,'S 13'S.W.3d 577 , 610 (Ky. 2010). The rules
protect “the important interest litigants have in finality, by guarding against
the endless reopening of already decided questions, and the equally important
interest courts have in judicial economy, by preventing the drain on judicial
resources that would result if previous decisions were routinely subject to
reconsideration.” Id. l

The current Court of Appeals panel imprudently rejected longstanding
precedent in re-opening issues already decided. lndeed, the Court of Appeals
acknowledged it was “departing from`the well-worn path of the law of the case
doctrine,”11 but nevertheless determined that this case was a rare one in which
applying the law of the case would result in a manifest injustice to Hughes. To
justify its decision, the Court of Appeals cited to Davidson 1). Castner-Knott Dry
Goods Co., 202 S.W.3d 597, 602 (Ky. App. 2006), for the notion that even if a
prior ruling is the law of the case, a court “may reexamine an earlier ruling and
rescind it if [the court] has a reasonable conviction that it was wrong and it
would not cause undue prejudice to the party that benefited from it.” However,
the issue presented in Davidson was whether a trial judge was permitted to

reconsider its previous grant of summary judgment The holding in _Davidson'

 

11 Hughes III, No. 2014-CA-001307-MR at *21.

10

has no bearing on the procedural posture of Hughes’s case and is wholly
inapplicable

Manifest injustice is defined as “‘an error in the trial court that is direct,
obvious, and observable, such as a defendants guilty plea that is involuntary
or that is based on a plea agreement that the prosecution rescinds.”’ Nichols v.
Commonwealth 142 S.W.Sd 683, 691 (Ky. 2004] (quoting BLACK‘S LAW
DlCTIONARY 974 (7th ed. 1999)). We disagree with the Court of Appeals that
each prior court “overlooked” information in the record showing that counsel
should have been aware of Hughes’s possible mitigation evidence of Self-
defense and prior sexual abuse On the first appeal, the Court of Appeals
engaged in a thorough review of this exact claim, holding that “as to Hughes’s
claim that his attorney failed to advise him of the 85% requirement of the
violent offender statute, we find no constitutional violation even if his attorney
failed to so inform him.”12 The first Court of Appeals panel further stated that,
with respect to the separate issue of whether Hughes’s counsel was ineffective
for failing to move for an evidentiary hearing on the exemption from the violent

offender statute, Hughes did not make the allegation that his attorney knew or

 

12 Hughes I, 2006 WL 73738, at *2. The Court of Appeals in Hughes I relied on
Tumer v. Commonwealth, 647 S.W.2d 500 (Ky. App. 1982], which held that a guilty
plea is not involuntary or invalid because defendants counsel did not inform the
defendant of parole eligibility guidelines. That holding reflected the state of Kentucky
law in 2006. More recent cases, however, likely would have dictated a different result.
See e.g. Padilla v. Kentucky, 559 U.S..356, 130 S.Ct. 1473, 176 L.Ed. 2d 284 [2010)
(holding that counsel’s failure to advise criminal defendant of immigration
consequences of guilty plea'constituted ineffective assistance of counsel).

11

should have known that Hughes was the victim of domestic violence or abuse
prior to advising him on the guilty plea.13 One judge, however, explicitly
dissented with the Court of Appeals’ majority opinion, stating

l fully agree with the majority that the record clearly

refutes Hughes’ claims of ineffective assistance of

counsel with respect to his counsel’s representation

regarding his guilty pleas. I would, however, remand

this matter to th_e trial court for an evidentiary hearing

concerning counsel’s decision not to pursue, on

Hughes behalf, an exemption from the application of

the violent offender act.14
Clearly, the issue of Hughes’s entitlement to a hearing under KRS 439.3401(5]
was presented to, and adjudicated by, the first Court of Appeals panel.

The current Court of Appeals panel therefore erred by embarking on an

extensive fact-finding mission and re-litigating the issue The Court of Appeals
also erred by granting relief that Hughes did not seek. Hughes’s CR 60.02
motion asked that the court amend his sentence proportionate to Second-
Degree Manslaughter, or Reckless Homicide, or, in the alternative to find him
to be a victim of domestic violence exempting him from the violent offender
statute and allow him to receive statutory good time credit and an earlier
parole eligibility date. Hughes’s CR 60.02 motion did not request that the

court remand the case for an evidentiary hearing and / or a new penalty phase

proceeding

 

13 Hughes I, 2006 WL 73738, at *2.
14 Hughes I, 2006 WL 73738, at *3.

12

We further find that no manifest injustice occurred which might support
reversal. Hughes pled guilty to four felonies, including murder, and received
an aggregate twenty-year sentence As noted by the first Court of Appeals
panel, it would seem that Hughes’s counsel was actually highly effective since
he negotiated a total sentence of twenty years for all four felonies.15 Thus, We
are unable to say that Hughes’s sentence resulted in manifest injustice

III. CONCLUSION.

For the foregoing reasons, we reverse the Court of Appeals. Hughes’s
allegations of ineffective assistance of counsel were repeatedly and properly
rejected by the trial court and two prior panels of the Court of Appeals and are
procedurally barred from being re-litigated. Furthermore, no manifest injustice
resulted from the denial of Hughes’s request for an evidentiary hearing
regarding a possible exemption from the violent offender act that would
warrant a dispensation from the law of the case doctrine

All sitting. All concur.

 

`

15 It appears that iri a separate case, 2003-CR-55, Hughes was charged with
Manufacturing Methamphetamine and Knowingly Possessing Anliydrous Ammonia
with Apparent Intent to Manufacture Methamphetarnine. Hughes’s trial counsel
apparently succeeded in negotiating an aggregate twenty-year sentence for him for
these charges in conjunction with the four felonies discussed herein.

13

COUNSEL FOR APPELLANT:

Andy Beshear
Attorney General of Kentucky

Kenneth Wayne Riggs
Assistant Attorney General
COUNSEL FOR APPELLEE:
_Heather Hogsdon

Assistant Public Advocate
Department of Advocacy

14

