RENDERED: NOVEMBER 19, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0183-MR
JIMMY THACKER APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
v. HONORABLE THOMAS M. SMITH, JUDGE
ACTION NO. 10-CR-00114
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.
GOODWINE, JUDGE: Jimmy Thacker (“Thacker”) appeals the Floyd Circuit
Court’s order denying his motion under CR1 60.02(f). We affirm.
On July 21, 2010, [Thacker] was indicted for one
count of first-degree assault,[2] five counts of first-degree
wanton endangerment,[3] and for being a first-degree
1
Kentucky Rules of Civil Procedure.
2
Kentucky Revised Statutes (KRS) 508.010, a Class B felony.
3
KRS 508.060, a Class D felony.
persistent felony offender.[4] The charges in this case
resulted from a shooting that occurred on July 16, 2010.
[Thacker] shot Elizabeth Conn multiple times while she,
her little girl, and some of her friends were at her
mother’s house. He was charged with one count of
wanton endangerment for each of the other persons who
were at the home at the time of the shooting.
The trial was conducted in Floyd Circuit Court on
March 21-23, 2011. At trial, [Thacker] did not deny
guilt, but claimed that he was acting under extreme
emotional disturbance (EED) and asserted a voluntary
intoxication defense. The jury convicted [Thacker] on all
counts, and he was sentenced to a total of twenty-six (26)
years in prison.
Thacker v. Commonwealth, No. 2011-SC-000338-MR, 2012 WL 3632349, at *1
(Ky. Aug. 23, 2012).
After the Supreme Court of Kentucky affirmed Thacker’s conviction
on direct appeal, he filed a motion under RCr 5 11.42 alleging ineffective assistance
of counsel.6 Therein, Thacker argued trial counsel was ineffective for failing to
have him evaluated for competency to stand trial and for failing to present EED as
a defense. Thacker v. Commonwealth, No. 2017-CA-001293-MR, 2019 WL
1578679, at *3 (Ky. App. Apr. 12, 2019). In affirming the trial court’s denial of
Thacker’s RCr 11.42 motion, this Court found the record refuted his claims. In
4
KRS 532.080(3).
5
Kentucky Rules of Criminal Procedure.
6
On direct appeal, the Supreme Court affirmed Thacker’s convictions but vacated in part and
remanded the matter to the trial court because of a sentencing error.
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fact, “[c]ounsel presented evidence that Thacker’s actions were prompted by his
EED and voluntary intoxication; the jury was instructed on both.” Id. (citation
omitted). Furthermore, Thacker’s argument regarding competency failed because
he participated rationally in his own defense. Id.
On September 16, 2019, Thacker filed a motion for relief under CR
60.02(f) alleging ineffective assistance of post-conviction counsel on his RCr
11.42 motion. The trial court denied the motion as untimely and repetitive. This
appeal followed.
Under CR 60.02(f), a court may grant relief from a judgment for “any
other reason of an extraordinary nature justifying relief.” The burden of proof is
on the movant to present specific facts which “render the original trial tantamount
to none at all.” Foley v. Commonwealth, 425 S.W.3d 880, 885-86 (Ky. 2014)
(internal quotation marks and citation omitted). This Court reviews the denial of a
motion under CR 60.02 for abuse of discretion, the test for which is whether the
trial court’s decision was “arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Id. at 886 (citations omitted).
Thacker’s sole argument on appeal is that he received ineffective
assistance of counsel in his RCr 11.42 proceedings because counsel failed to have
him evaluated for competency to stand trial and EED.
-3-
“[T]he Due Process Clause of the Fourteenth Amendment to the
United States Constitution, and through it the Sixth Amendment, entitle criminal
defendants to the effective assistance of counsel not only at trial, but during a first
appeal as of right.” Hollon v. Commonwealth, 334 S.W.3d 431, 434 (Ky. 2010)
(citing Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985)).
Ineffective assistance of counsel claims are “limited to counsel’s performance on
direct appeal; there is no counterpart for counsel’s performance on RCr 11.42
motions or other requests for post-conviction relief.” Id. at 437. On this basis,
Thacker’s claim must fail.
Based on the foregoing, the order of the Floyd Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jimmy Thacker, pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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