Filed: Mar. 25, 2016
Latest Update: Mar. 25, 2016
Summary: NOT TO BE PUBLISHED OPINION NICKELL , JUDGE . Jerry Bernard Winstead, pro se, has appealed from the Daviess Circuit Court's denial of his motion for post-conviction relief pursuant to RCr 1 11.42. Following a careful review, we affirm. Winstead was tried and convicted of the murder and robbery of Richard Roberts. He was sentenced on May 21, 2007, to life imprisonment without the possibility of parole. The Supreme Court of Kentucky affirmed Winstead's conviction and sentence on direct a
Summary: NOT TO BE PUBLISHED OPINION NICKELL , JUDGE . Jerry Bernard Winstead, pro se, has appealed from the Daviess Circuit Court's denial of his motion for post-conviction relief pursuant to RCr 1 11.42. Following a careful review, we affirm. Winstead was tried and convicted of the murder and robbery of Richard Roberts. He was sentenced on May 21, 2007, to life imprisonment without the possibility of parole. The Supreme Court of Kentucky affirmed Winstead's conviction and sentence on direct ap..
More
NOT TO BE PUBLISHED
OPINION
NICKELL, JUDGE.
Jerry Bernard Winstead, pro se, has appealed from the Daviess Circuit Court's denial of his motion for post-conviction relief pursuant to RCr1 11.42. Following a careful review, we affirm.
Winstead was tried and convicted of the murder and robbery of Richard Roberts. He was sentenced on May 21, 2007, to life imprisonment without the possibility of parole. The Supreme Court of Kentucky affirmed Winstead's conviction and sentence on direct appeal on May 21, 2009.2 Over four years later, Winstead filed a pro se motion seeking post-conviction relief pursuant to RCr 11.42 on September 19, 2013, and a supplemental motion on September 4, 2014, both of which alleged ineffective assistance of Winstead's trial counsel. The allegations focused on counsel's alleged failure to properly investigate and prepare defenses before his trial. The Commonwealth objected to both motions as being untimely pursuant to the three-year limitation contained in RCr 11.42(10). The trial court agreed with the Commonwealth and denied Winstead's motions by order entered on September 24, 2014. This appeal followed.
Before this Court, Winstead reiterates the substantive claims raised below related to the alleged ineffectiveness of his trial counsel and claims the trial court erred in denying his requested relief. Further, and for the first time on appeal, he argues the three-year window for bringing his motion for post-conviction relief should be equitably tolled because his diminished mental health prohibited him from filing his RCr 11.42 motion in a timely fashion. We disagree and conclude the trial court properly denied Winstead's motions as untimely.
In pertinent part, RCr 11.42 provides as follows:
(10) Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:
(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence; or
(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
Our review of the record reveals Winstead was aware of the facts underlying each of his claims of ineffectiveness prior to commencement of his trial. No allegation is raised to the contrary. Further, Winstead does not allege the existence of any new fundamental constitutional right. Thus, the three-year filing window referenced above is controlling.
The Supreme Court's Opinion affirming Winstead's conviction and sentence became final and non-appealable no later than June 11, 2009, thereby requiring Winstead to file any motion seeking post-conviction relief pursuant to RCr 11.42 no later than June 11, 2012. See CR 76.30(2a) ("An opinion of the Supreme Court becomes final on the 21st day after the date of its rendition unless a petition under Rule 76.32 has been timely filed. . . ."). The instant motion was not filed until nearly fifteen months after the window had closed. This delay was fatal.
The trial court herein lost jurisdiction over Appellant's case ten days after entry of the final judgment. Silverburg v. Commonwealth, 587 S.W.2d 241, 244 (Ky. 1979). As Appellant's motion was filed outside the three-year statute of limitations period mandated in RCr 11.42, it was insufficient to reinvested (sic) jurisdiction.
Bush v. Commonwealth, 236 S.W.3d 621, 623 (Ky. App. 2007).
Finally, Winstead's equitable tolling argument is inapposite as it was never presented to the trial court for its consideration. It is axiomatic that a party may not "feed one can of worms to the trial judge and another to the appellate court." Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321, 327 (Ky. 2010) (citations omitted). More specifically, the Supreme Court of Kentucky has ruled it inappropriate to consider an equitable tolling contention for the first time on appeal. Commonwealth v. Carneal, 274 S.W.3d 420, 428-29 (Ky. 2008). Thus, as the trial court was not presented with this argument, nor given the opportunity to rule thereon, we shall not consider it for the first time on appeal.
For the foregoing reasons, the judgment of the Daviess Circuit Court is affirmed.
ALL CONCUR.
