             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TOJHE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76;28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,·
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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                                      ,,
/

                                                       RENDERED: APRIL 27, 2017
                                            .             NOT TO BE PUBLISHED

                    ~uprttttt '11nurf nf
                                    2016-SC-000137-DG
                                                       FfJN ~ l
    COMMONWEALTH OF KENTUCKY
                                                                u
                                                       [Q) ~ [E of,ah-, )<:;* Qa;JMo.,, bL ·
                                                                         APPELLANT


                         ON REVIEW FROM COURT OF APPEALS.
    V.                       CASE NO. 2014-CA-1307cMR
                        McLEAN CIRCUIT COURT NO. 03-CR-00056


    JOHN J. HUGHES                                                        APPELLEE



                        MEMORANDUM OPINION OF THE COURT

                                           REVERSING

          In 2003, John J. Hughes, Jr. ("Hughes") pled guilty to four felonies:

    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, Hughes filed numerous post-conviction motjons 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 from 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 victim. 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 439.3401(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
                         I

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 Commonwealth'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. In 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.

                                          3
      Hughes filed, prose, his first RCr 11.42 motion in 2004, alleging that his

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 HU:ghes's

· RCr 11.42 motion, holding that the record refuted any claims of ineffective

assistance. Hughes appealed; the Court of Appeals affirmed.s Hughes did not

seek discretionary review of the Court of Appeals' decision.

       In 2008, Hughes filed another motion pursuant to RCr 11.42, now

represented by counsel, seeking an evidentiary hearing to determine whether

he qualified .for the KRS 439.3401(5) exemption. The trial court denied his

motion as successive and untimely. Hughes did not appeal·. In 2012, Hughes,

prose, 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.


      s Hughes v. Commonwealth, No. 2005-CA-000416"MR, 2006 WL 73738 (Ky.
App. Jan. 13, 2006) (unpublished) (hereinafter Hughes 1).
      6 Hughes v. Commonwealth, No. 2013-CA-000068-MR, 2013 WL 5777142 (Ky.

App. Oct. 25, 2013) (unpublished) (hereinafter Hughes Il).

                                         4
      In 2014, Hughes filed a motion pursuant to CR 60.02(e)-(i), 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

Commonwealth 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 heari_ng on Hughes's

claims of ineffective assistance of counsel for allegedly failing to pursue an

exemption pursuant to KRS 439.3401(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. 2011). The Court of Appeals found the
"castle doctrine" inapplicable to this case, and therefore reviewed Hughes's claini
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 claini that his sentence was disproportionate to sentences that other
criminal defendants who were sentenced to lesser included offenses of murder have
received.

                                          5
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 filed,

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 11.42, and thereafter in CR
            60.02.

Gross v. 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 11.42.

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




      s Hughes v. Commonwealth, No. 2014-CA-001307-MR, 2016 WL 675952 (Ky.
App. Feb. 19, 2016) (unpublished) (hereinafter Hughes III).

                                        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 11.42 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 v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (citations

omitted). "Indeed, RCr 11.42(3) makes clear that the movant shall, in his RCr

11.42 petition, state all grounds for holding the sentence invalid of which the

movant has knowledge. Thus, final disposition of a mcivant's RCr 11.42 motion

shall conclude all issues which could reasonably have been presented in the

same proceeding." Foley v. Commonwealth, 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 final, 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




                                        7
               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 11.42 motion with the extraordinary relief of CR 60.02.

Hughes's CR 60.02 motion, filed over ten years after his judgment became

final, 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.

Indeed, 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 11.42, 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. 2p14-CA-001307-MR at *~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 11.42 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 (1) 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.

      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. It 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.3d 747, 751 (Ky.

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


                                       9
      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 v. Commonwealth, 313 S.W.3d 577,610 (Ky. 2010). The rules

protect "the important interest litigants have in finality, by guarding against

th('. 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.

      The current Court of Appeals panel imprudently rejected longstanding

precedent in re-opening issues already decided. Indeed, 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 v. 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 wro_ng 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 defendant's guilty plea that is involuntary

or that is based on a plea agreement that the prosecution rescinds."' Nichols v.

Commonwealth, 142 S.W.3d 683, 691 (Ky. 2004) (quoting BLACK'S LAW

DICTIONARY 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 !relied on
Turner v. Commonwealth, 647 S.W.2d 500 (Ky. App. 1982), which held that a guilty
plea is not involuntary or invalid because defendant's 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.ta One judge, however, explicitly

dissented with the Court of Appeals' majority opinion, stating

              I 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 the trial court for an evidentiary hearing
              concerning counsel's d.ecision 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

parofe 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.




      1s 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. is 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 in a separate case, 2003-CR-55, Hughes was charged with
Manufacturing Methamphetamine and Knowingly Possessing Anhydrous Ammonia
with Apparent Intent to Manufacture Methamphetamine. 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
