The Advocate
Volume 22, No. 4, 
July 2000

The Scope of the Right to Counsel in Kentucky Post-Conviction Proceedings
by Ed Monahan and Rebecca DiLoreto

Many areas of criminal law practice are misunderstood. The appointment of counsel in post-conviction proceedings is an area of confusion, misunderstanding and misconceptions for some people. In an attempt to promote greater awareness, this article looks at what the law in Kentucky is on the appointment of counsel in post-conviction proceedings. Statutory law, the rules of the Kentucky Supreme Court, and twenty years of caselaw in Kentucky indicate that the law on appointment is:

Constitutional Aspects. There is no federal or state constitutional right to counsel in a post-conviction proceeding. Murray v. Giarratano, 492 U.S. 1, 10 (1989). However, Kentucky has judiciously provided for the right to counsel in certain situations through its court rules and statutes. There are very pragmatic reasons for these provisions - economy, efficiency, and finality.

A Triumvirate of Authority: Statute, Rule, and Caselaw
Statute. Kentucky statutory law, KRS 31.110(2)(c), provides for the appointment of counsel when:

  1. the attorney and the needy person consider the action appropriate, and
  2. a determination is made that the post-conviction action is a proceeding a reasonable person with adequate means would be willing to bring at his own expense.
If counsel is appointed and the post-conviction action is not a proceeding a reasonable person with adequate means would be willing to bring at his own expense then the statute provides that counsel with the approval of the court involved can withdraw from representation. KRS 3l.ll0 states: 1) A needy person being detained under a convic tion of a serious crime, is entitled: a) To be represented by an attorney to the same extent as a person having his own counsel is so entitled;... 2) A needy person who is entitled to be represented by an attorney under subsection (1) is entitled: a) To be represented in any other post-conviction proceedings that the attorney and the needy person considers (sic) appropriate. However, if the counsel appointed in such post-conviction remedy, with the court involved, determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense, there shall be no further right to be represented by counsel under the provisions of this chapter. Rule. The Kentucky Rules of Criminal Procedure provide for the appointment of  counsel when:
  1. the movant is financially unable to employ counsel;
  2. the movant makes a specific written request, and
  3. a material issue of fact is raised and is not able to be determined from the record.
RCr 11.42(5) provides:

Affirmative allegations contained in the answer shall be controverted or avoided of record. If the answer raises a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing and, if the movant is without counsel of record and if financially unable to employ counsel, shall upon specific written request by the movant, appoint counsel to represent the movant in the proceeding, including appeal.

Caselaw. Two decades ago in Commonwealth v. Ivey, 599 S.W.2d 456 (Ky. 1980) the indigent petitioner filed a CR 60.02 motion to amend the order in the RCr 11.42 proceeding since the circuit judge refused to appoint counsel that was requested under KRS 31.110. The circuit judge refused to appoint counsel under RCr 11.42(5) since there was no material issue of fact raised. The Kentucky Supreme Court held it was error to deny counsel under KRS 31.110. Looking at both the statute and rule, the Court observed that the "provision for appointment of counsel found in RCr 11.42(5) was intended to set the minimum standard for post-conviction relief proceedings. The legislature could and did provide for a more generous policy of appointing counsel for indigents…." Id. at 457.

The Court noted the pragmatic, practical, and equitable reasons for the statutory right to counsel above the minimum required when it observed that the Court's RCr 11.42 rule barred successive RCr 11.42 motions and that without the assistance of counsel "Ivey could be effectively precluded from raising valid grounds by failure to include such grounds at the time of his first motion. This inequity between the needy and the affluent is cured by the statute." Id. at 458.

Under this analysis, the Supreme Court's opinion was that "KRS 31.110 and RCr 11.42 are complementary and clearly provide for appointment of counsel in the situation presented here." Id. The case was remanded for the circuit judge to appoint counsel for Ivey and "permit him to present for adjudication supplementary grounds for RCr 11.42 relief." Id.

Must appointment of counsel be made for investigation purposes prior to the filing of a pro se pleading, or are appointments confined to supplementing the defendant’s pro se pleading with representation following through the evidentiary hearing and on appeal?

KRS 31.110(2)(c) provides for a needy person to be represented in any post-conviction proceeding that the attorney and the needy person consider appropriate. KRS Chapter 31's provision of counsel through the statewide public defender program contemplates situations where in the course of representation counsel will originate a post-conviction motion on behalf of the client when appropriate.

While it is clear that Kentucky’s statutory scheme supports the right to counsel in post-conviction proceedings in the course of representation when appropriate, the language of KRS 31.110(2)(c) and facts of Ivey support the view that a judicial appointment of counsel should take place after an "action," or pleading alleging improprieties surrounding the conviction has been filed unless during the course of representation counsel and the client originate the filing. The filing of the RCr 11.42 vests the court with jurisdiction to act in the case. Bowling v. Commonwealth, 964 S.W.2d 803, 804 (Ky. 1998) determined that judges lose jurisdiction over a case 10 days after the entry of the final judgment and they therefore do not have jurisdiction to authorize funding to conduct an investigation in support of a proposed but unfiled motion to vacate a sentence.

A series of cases beginning with Ivey elaborate on when counsel must be appointed. In Ivey, the movant filed an RCr 11.42 motion alleging specific reasons his conviction should be vacated. The trial court initially determined that the appointment of counsel was not necessary because the pleadings did not raise a material issue of fact. The Supreme Court remanded the case and ordered counsel be appointed to present supplementary grounds. The appellate court recognized the confines of RCr 11.42, which typically limits defendants to one such action where all known issues must be presented. Counsel plays an important role in supplementing a defendant’s pro se complaints due to the harsh confines of the rule that prohibits successive petitions.

In Gilliam v. Commonwealth, 652 S.W.2d 856 (Ky. 1983) the movant filed a motion to obtain a free copy of the transcript of his trial and guilty plea. Gilliam argued that he needed the transcript to help him prepare a motion for post-conviction relief.

The Kentucky Supreme Court found that the purpose of the request for a transcript was to "enable counsel to search the record for points subject to collateral attack under RCr 11.42, although no RCr 11.42 motion had yet been filed. In essence, [the motion for transcripts] is an independent action to obtain a record preparatory to filing an RCr 11.42 motion." Id. at 857. Gilliam observed that Ivey "provides the movant with legal assistance in preparing and presenting grievances. It does not provide a mechanism to search for unknown grievances." Id. at 858. Since Gilliam was searching for issues, he was not entitled to a transcript for preliminary investigative measures.

A pro se RCr 11.42 motion must set forth specific grounds challenging the conviction which give fair notice of the requested relief. The pro se litigant must make a "clear and unambiguous" written request for counsel that is "contained in the body of the RCr 11.42 motion." Beecham v. Commonwealth, 657 S.W.2d 234, 237 (Ky. 1983). Beecham's signed affidavit of indigency attached to the motion was not sufficient to require the appointment of counsel. The circuit judge is not required to automatically appoint counsel if such appointment is not requested in the body of the motion.

The written request for counsel must also specify the purpose for which counsel is desired. In Allen v. Commonwealth, 668 S.W.2d 556, 557 (Ky.Ct. App 1984), the movant asked for appointment of counsel solely for assistance at the evidentiary hearing but did not ask for counsel to supplement his motion to vacate. Since the Court found that no evidentiary hearing was required under the grounds alleged by the movant, the Court held that it was not error to fail to appoint counsel for an unneeded evidentiary hearing.

In Commonwealth v. Stamps, 672 S.W.2d 336 (Ky. 1984) the movant asked for counsel and was not provided one in his RCr 11.42 motion. The Kentucky Supreme Court, recognizing its holding in Ivey, looked at the merits of the claims and found "an evidentiary hearing is totally unnecessary" and "remanding this case for appointment of counsel to search for supplementary grounds for RCr 11.42 relief is also an exercise in futility" and therefore refused to reverse for failure to appoint counsel. Id. At 339. The Court applied a harmless error analysis. It is not easy to understand how harmless error analysis can be utilized to preclude appointment of counsel for purposes of supplementing the record since courts cannot divine what might be uncovered. Stamps, which did not state it was overruling or modifying Ivey, is at odds with Ivey. In effect, Stamps invites trial judges to commit harmless error.

In a recent case, Osborne v. Commonwealth, 992 S.W.2d 860 (Ky. 1999), the benefit of having counsel was demonstrated. Counsel, who was appointed after a pro se RCr 11.42 motion was filed, requested an evidentiary hearing to present proof of the claims raised by the pro se defendant. The trial judge denied the evidentiary hearing but the Kentucky Court of Appeals reversed based on the preserved request for a hearing on ineffective assistance on whether to plead guilty or proceed to trial.

In cases where there has been an evidentiary hearing, harmless error analysis has been found inappropriate. In United States v. Iasiello, 166 F. 3d 212, 214 (3rd Cir. 1999) the Third Circuit held that the failure to appoint counsel in a post-conviction action under 28 U.S.C. 2255 and Rule 8(c) of the Rules Governing Section 2255 Proceedings where an evidentiary hearing was conducted "is not susceptible to harmless error analysis. Rather, prejudice to the petitioner is presumed." See also, United States v. Vasquez, 7 F.3d 81 (5th Cir. 1993). The Kentucky Supreme Court has observed that the 28 U.S.C. Section 2255 procedure "is the federal equivalent of our RCr 11.42." Gilliam v. Commonwealth, 652 S.W.2d 856, 859 (Ky. 1983).

In Hopewell v. Commonwealth, 687 S.W.2d 153 (Ky. App. 1985) the Court refused to reverse on the grounds that the movant was denied appointment of counsel since a hearing and appointment of counsel are "not necessary when the record in the case refutes the movant's allegations." Id. at 154. Hopewell, however, cited Newsome v. Commonwealth, 456 S.W.2d 686 (Ky. 1970). Newsome was decided a decade before Ivey and is inconstant with Ivey. Newsome was decided before KRS Chapter 31 was enacted into law. Newsome relied only on the language of RCr 11.42. Hopewell did not mention or distinguish Ivey, and did not enlighten practitioners on how to interpret it juxtaposed against Ivey. Hopewell did not overrule Ivey.

The right to appointed counsel does not extend to Civil Rule 60.02 proceedings. Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983).

From the holdings in this series of cases, judges have the obligation under Ivey, KRS 31.110(2)(c), and RCr 11.42(5) to appoint counsel when it is explicitly requested in writing in the motion for purposes of supplementing the grounds to vacate the conviction. If upon appointment, counsel represents to the court that counsel has determined that the post-conviction action is not a proceeding a reasonable person with adequate means would be willing to bring at his own expense, then the court should allow counsel to withdraw if the court concurs in counsel's determination.

What the Statewide Data Tells Us: Oppressive Numbers Are a Myth. Since July 1, 1998, the Post-Conviction Branch of the Department of Public Advocacy has had the responsibility of providing representation in court-appointed RCr 11.42 cases from all 120 counties in the state. See Diloreto and Thomas, "Redefining the Mission in the Post-Conviction Branch," The Advocate, Vol. 20, No. 5 (September 1998) at page 66-67. Prior to 1998, each county’s local trial public defender service provider was responsible for either providing representation of these clients or securing conflict counsel. Public Advocate Ernie Lewis shifted responsibility for representing these clients from the local trial attorney to the state post-conviction branch attorneys for three reasons:

  1. to provide uniform quality representation to indigent clients in these post-conviction cases by attorneys specifically hired for and experienced in the post-conviction litigation;
  2. to allow trial attorneys with huge caseloads to focus on the representation of trial clients, and
  3. to more equitably distribute caseloads within DPA to provide more reasonable caseloads for trial attorneys, to better serve the courts in both trial and post-conviction litigation.
After some initial adjustments, this new plan for delivering counsel to post-conviction clients is up and running. This is the first time in DPA’s history that one post-conviction leader has managed all post-conviction appointments.

The perception of many is that there are an endless number of motions to vacate being recklessly filed across the Commonwealth. The Kentucky Administrative Office of the Courts (AOC) data indicates this is a myth. Amongst the hundreds of thousands of cases in the system, the AOC data for four years, FY 1996 - FY 1999, indicates there were but 768 reported motions to vacate or set aside a sentence filed, which is an average of 192 per year. (Report excludes Jefferson County District Court information).

In the FY 99 (July 1, 1998 - June 30, 1999), the first year of this shift in responsibility for representation, DPA’s Post Conviction Branch received 111 appointments, 92 in RCr 11.42 cases and 19 in CR 60.02 cases from over 40 counties. Of those 92 RCr 11.42 appointments in those 40 counties, 24 were from Fayette County with no evidentiary hearings granted, and 14 were from Warren County.

Conclusion: Promoting Economy, Efficiency, and Finality

The right to counsel in post-conviction proceedings is an important right that Kentucky has wisely provided to insure efficient, complete, professional litigation of matters in one post-conviction proceeding. This is of measurable benefit to the courts and the public that seek reliable results in which confidence can be placed. This post-conviction process, assisted by the guiding hand of counsel, insures deliberate consideration of claims that, if true, undermine the reliability of the original conviction. The statute and rule and their application by Kentucky appellate courts through caselaw provide a pragmatic system of insuring the right to counsel in appropriate proceedings that promotes economy of resources and finality of final judgments. As Justice Lukowsky astutely observed two decades ago in Ivey, the statutory right to counsel allows for resolution of all legitimate claims in the first motion and provides no inequity between the needy and rich.

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