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Court of Appeals of Kentucky.


NO. 2010–CA–000406–MR

Decided: February 03, 2012

BEFORE:  DIXON, MOORE AND THOMPSON, JUDGES. BRIEF FOR APPELLANT:  Kenneth E. Green, Pro se West Liberty, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky



Kenneth Edward Green appeals from an order of the Estill Circuit Court denying his motion to “obtain all court records and video tapes” pertaining to his guilty plea and sentencing.   He contends that the audiotape of his sentencing hearing will reveal that he agreed to ten years on a manslaughter charge and four years on the charge of tampering with physical evidence with the sentences to run concurrently.

After Green was indicted for murder and tampering with physical evidence, he entered a guilty plea to an amended charge of first-degree manslaughter and complicity.   On April 7, 2005, a sentence hearing was held.   Following a brief colloquy, Green was sentenced to twelve years on the manslaughter charge and four years on the tampering charge.

On September 19, 2006, Green filed a pro se RCr 11.42 motion seeking to have his sentence corrected because pursuant to the plea agreement, he should have been sentenced to ten years on the manslaughter charge and four years on the tampering charge.   He alleged that the transcript of the sentencing and the judgment were altered to reflect a twelve-year sentence rather than the ten years he accepted.

Without an evidentiary hearing, the trial court denied Green's motion for RCr 11.42 relief.   In doing so, the trial court reviewed the record, including the sentencing transcript, and found as follows:

1. March 15, 05–Motion to Enter Guilty Plea filed by [Green] in reliance on the Commonwealth's offer which stated “a sentence of 12 years ․” This figure is clearly altered and, at first would give some merit to [Green's] claim if not for subsequent documents.

2. March 15, 05–The Court's colloquy between [Green] and his TWO lawyers clearly shows the deal that was made between the parties.   The Court asks:  What is your understanding of the Prosecutor's recommendation as to the sentence or punishment imposed will be?   The response, which was signed by [Green] and his attorney Rowady, states, “12 years Manslaughter, 4 years Tampering, concurrent.”

3. April 7, 2005, Sentencing transcript-The Assistant Commonwealth's Attorney, Phillip Owen, [Green's] attorney Hon. Thomas K. Hollon, and the trial judge all three state on separate occasions that the sentence was 12 years and [Green] is sentenced by the trial judge to the exact amount of time set out in the offer of the Commonwealth and to exact amount of time in the Court's colloquy signed by [Green].

Green appealed the order and this Court affirmed.   After review of the record, including the plea offer and the sentencing hearing, this Court stated:

There is absolutely no factual basis in the record to support Appellant's allegations.   The trial court is correct that it does appear the Commonwealth's plea offer was altered.   However, the offer was evidently faxed or photocopied, resulting in a portion of the right-hand side of the document becoming illegible.   The “alteration” appears to be nothing more than an attempt to write in what was originally there.   Certainly, there is no indication that the sentence was altered from ten to twelve years.

Furthermore, as noted by the trial court, Appellant was represented by two attorneys during the proceedings and the transcribed hearing of their conversation with the court and the Commonwealth unquestionably contradicts his claim that the sentence was only ten years.   As the record clearly refutes all of the claims raised in Appellant's RCr 11.42 motion, the trial court did not err in dismissing the motion without an evidentiary hearing.

Green v. Commonwealth, 2008 WL 4755013, 2 (Ky.App.2008).

While Green's first appeal was pending, he filed a motion requesting that the circuit court compel the “custodian of audio tapes” to permit him to purchase a copy of the “audio tapes” of his plea and final sentencing hearings.   The trial court denied the motion and expressly noted that Green had been provided a transcript.

In his second appeal, Green argues that the case must be remanded to the circuit court with instructions to permit him to purchase the audio tapes of the plea agreement and sentencing hearings so that he can determine why the transcript of the sentencing hearing was altered and his sentence corrected to a term of ten years.   Thus, in substance, his allegations are identical to those presented in his first appeal.

Initially, we point out that Green was provided a transcript of the hearings.   Yet, without offering any evidentiary basis to support his position that the transcript was altered, he demands the audio tapes of the hearings.   In Green's first appeal, Green's assertions were addressed and it was concluded that there was no factual basis to support his allegation that the transcript of the sentencing hearing was altered.   Therefore, our decision is governed by the law of the case doctrine which was summarized in Commonwealth v. Tamme, 83 S.W.3d 465, 468 (Ky.2002):

It has long been recognized that the final decisions of the court are binding on the parties, the trial court and this Court.   See Haight v. Commonwealth, Ky., 938 S.W.2d 243 (1996), citing Martin v. Frasure, Ky., 352 S.W.2d 817 (1961);  Taylor v. Mills, Ky., 320 S.W.2d 111 (1958).   Obviously, the law of the case doctrine is intended to prevent defendants from endlessly litigating the same issue in appeal after appeal.   It also prevents a dissatisfied party from presenting piecemeal issues to the appellate courts so that no decision is ever final.   See Marshall v. Merrifield, Ky., 474 S.W.2d 99 (1971), citing Sowders v. Coleman, 223 Ky. 633, 4 S.W.2d 731 (1928).

This Court previously determined that Green's assertions regarding his sentencing were without factual basis and, therefore, meritless.   The law of the case doctrine precludes further review.

Based on the foregoing, the order of the Estill Circuit Court is affirmed.