William Walker, West Liberty, KY, pro se.
Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, KY, for Appellee.
Before LAMBERT, MOORE, and VANMETER, Judges.
OPINION AND ORDER
William B. Walker appeals the Oldham Circuit Court's order denying his third Kentucky Rules of Civil Procedure (CR) 60.02 motion to vacate a 2003 order denying his petition for a writ of habeas corpus. Walker named William Seabold, Former Warden of the Kentucky State Reformatory, as the respondent/Appellee herein. The Commonwealth has filed a motion to dismiss the current appeal as frivolous, and the motion has been passed to this panel for review on the merits. After careful review, we hereby grant the Commonwealth's motion to dismiss the appeal.
On December 8, 1998, the Warren Circuit Court entered judgment against Walker, convicting him of rape in the second degree (two counts); sodomy in the second degree (two counts); use of a minor in a sexual performance (two counts); and selling a contraband substance to a minor. Walker was sentenced to a term of imprisonment of 80 years. The sitting trial judge at that time ruled that Walker was not entitled to a public defender because he was not indigent. Rather than use his own funds to employ counsel, Walker elected to represent himself during trial. After the jury convicted him of the various charges, he did not file a direct appeal. By failing to appeal, Walker forfeited the right to address any claim of trial error. Because he chose to represent himself at trial, Walker was not entitled to file a motion to vacate the judgment or to assert a claim for ineffective assistance of trial counsel. The United States Supreme Court has ruled that " a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘ effective assistance of counsel.’ " Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
Walker's latest CR 60.02 motion was filed on September 26, 2012, which he styled, " Motion for Relief from Order Granting Special Finding and Imposing Contempt Sanctions." On October 4, 2012, the trial judge entered an order denying the motion. Walker filed a motion for in forma pauperis status, so he could appeal; however, Walker did not disclose the fact that he owns real estate in Warren County, which is tax assessed at $21,500.00. Without this information, the trial court granted Walker's motion to proceed in forma pauperis. On the same day, Walker's notice of appeal was filed. This appeal then followed.
On November 13, 2012, the Commonwealth filed a motion to dismiss this action based on three grounds. On January 18, 2013, this Court entered an order which passed the motion to dismiss to the merits panel.
In its motion to dismiss, the Commonwealth first argues that this appeal is only one of over fifty petitions and/or appeals which Walker has filed in the state and federal courts in his efforts to challenge his 1998 criminal convictions in the Warren Circuit Court. The Commonwealth points to Kentucky Revised Statutes (KRS) 454.410(5), which states as follows:
In no event shall an inmate bring a civil action or appeal a judgment in a civil action or proceeding under this section
if the inmate has, on three (3) or more occasions within a five (5) year period, while incarcerated or detained in any facility, brought an action or appeal in any court that was dismissed on the grounds that it was frivolous, malicious, or harassing, unless the prisoner is under imminent danger of serious physical injury, without paying the entire filing fee in full.
(Emphasis added). The Commonwealth now argues in its brief that the motion panel likely passed this motion to the merits panel for guidance as to how KRS 454.410 should be enforced, since the statute itself does not provide guidance and since neither the Kentucky Rules of Criminal Procedure nor the Kentucky Rules of Civil Procedure address this question. The Commonwealth has ...