Released for Publication August 21, 2014
Petition for certiorari filed at, 11/18/2014
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2009-CA-000964-MR. JEFFERSON CIRCUIT COURT NO. 02-CR-001146.
FOR APPELLANT: Jack Conway, Jeffrey Allan Cross.
FOR APPELLEE: Timothy G. Arnold, Angela Elaine Slaton.
OPINION OF THE COURT BY JUSTICE SCOTT. Minton, C.J.; Abramson, Cunningham, Noble, and Venters, JJ., concur. Keller, J., not sitting.
A Jefferson Circuit jury found Appellee, Jasper Pollini, guilty of complicity to murder, complicity to first-degree burglary, complicity to second-degree burglary, and complicity to receiving stolen property over $300. After Appellee's sentence of life imprisonment was affirmed by this Court, he filed an RCr 11.42 motion in the
trial court alleging, among other things, that appellate counsel had rendered ineffective assistance by failing to brief the issue of the trial judge's ex parte written communication with the jury after it had retired for deliberations. The circuit court denied Appellee's motion, and the Court of Appeals affirmed the order denying relief, holding that Appellee's claim of ineffective assistance of appellate counsel (IAAC) was not cognizable.
This Court subsequently vacated the Court of Appeals' decision and remanded the case for reconsideration in light of our holding in Hollon v. Commonwealth. 334 S.W.3d 431 (Ky. 2010). In Hollon, we recognized that IAAC claims premised upon appellate counsel's alleged failure to raise a particular issue on direct appeal were cognizable in Kentucky. Id. at 436. On remand, the Court of Appeals ruled that Appellee's direct appeal counsel had rendered deficient performance by failing to brief the ex parte communication issue and granted Appellee a new trial.
We granted discretionary review, and the Commonwealth now argues that we should reverse the Court of Appeals because (1) Appellee waived his IAAC claim on appeal, (2) the Court of Appeals erred by concluding that Appellee's RCr 9.74 issue could have succeeded on direct appeal, and (3) the Court of Appeals failed to consider the experience of Appellee's direct appeal counsel. For the following reasons, we reverse the Court of Appeals and reinstate the trial court's order denying Appellee's RCr 11.42 motion.
The factual background underlying Appellee's convictions has been thoroughly recounted in Pollini v. Commonwealth, 172 S.W.3d 418 (Ky. 2005), and reiterated in Pollini v. Commonwealth, No. 2006-SC-000835-MR, 2008 WL 203035 (Ky. Jan. 24, 2008). These cases explain that, in the early morning hours of May 7, 2002, Appellee burglarized two residential garages. The burglaries were the beginning of a chain of events that ended with Appellee shooting and killing Byron Pruitt.
Appellee was subsequently indicted for murder and the garage burglaries, and his sister, Crystal Plank, was indicted for lesser offenses related to the incident. Appellee and Plank were tried together. After the jury had retired for deliberation, it requested a copy of Plank's witness statement to the police. The trial judge, ...