Untimely RCr 11.42 motion: COLLINS V. COM. (COA 11/30/2007)

COLLINS V. COM.
CRIMINAL:  RCR 11.42 motion untimely
2006-CA-000840
TO BE PUBLISHED: AFFIRMING
PANEL: DIXON PRESIDING; VANMETER, WINE CONCUR
COUNTY:  LETCHER
DATE RENDERED: 11/30/2007

TC properly denied Defendant’s motion to vacate as it was filed outside the three-year requirement set forth in RCr 11.42(10).  In this strange set of facts, Collins was convicted of two counts of incest, each with a 7.5 year sentence.  The jury recommended the sentences run consecutively, but the TC evidently forgot to designate "consecutive" in the order.  Thus, the presumption of concurrent sentencing prevailed and Corrections listed the sentence as 7.5 years. Evidently, the Commonwealth caught wind of this and had Corrections modify the length to 15 years after some questionable ex parte  communications.  From there, Collins challenged the modification via a federal habeas corpus petition.  This was ultimately denied, and Collins then challenged the modification under RCr 11.42.  TC then denied the motion because Collins waited over three years from the time he learned of the modification to challenge it.
            

Digested by Scott C. Byrd

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