RENDERED: MARCH 15, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0020-MR

KYLE THOMPSON APPELLANT 

v. 

APPEAL FROM HARDIN CIRCUIT COURT

HONORABLE JOHN D. SIMCOE, JUDGE

ACTION NO. 14-CR-00344

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Kyle Thompson appeals from the denial of his 

postconviction motion brought pursuant to Kentucky Rule of Criminal Procedure 

(RCr) 11.42 by the Hardin Circuit Court. We affirm.

Thompson was sentenced to life imprisonment after being convicted 

of, among other offenses, murder. Our Supreme Court affirmed on direct appeal in 

2016. Thompson v. Commonwealth, No. 2015-SC-000245-MR, 2016 WL 

5239680 (Ky. Sep. 22, 2016). Primarily alleging his counsel was ineffective, 
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Thompson filed the RCr 11.42 motion at hand roughly six years later. The motion 

thus facially violates RCr 11.42(10), which requires an 11.42 motion to be brought 

“within three years after the judgment becomes final . . . .” Thompson 

acknowledged that his motion was untimely but asserted it should nonetheless be 

deemed timely by application of equitable tolling due to his mental health 

challenges, which he asserted prevented him from timely filing an RCr 11.42 

motion. The trial court denied the motion without first holding a hearing. 

Thompson then filed this appeal.

Thompson bears the burden of demonstrating an entitlement to 

equitable tolling. Williams v. Hawkins, 594 S.W.3d 189, 194 (Ky. 2020). Our 

Supreme Court has set an extremely high bar for an RCr 11.42 movant to surmount 

to receive an evidentiary hearing as to whether equitable tolling should be applied. 

Thompson is not automatically entitled to application of equitable 

tolling merely because he claims he was mentally incompetent. Commonwealth v. 

Carneal, 274 S.W.3d 420, 429 (Ky. 2008). Instead, Thompson must show that 

“the circumstances preventing [him] from making a timely filing were both beyond 

[his] control and unavoidable despite due diligence.” Id. (internal quotation marks 

and citation omitted). What that means in practical terms is that, under the 

language of Carneal, Thompson must show that he was “totally incompetent for 

the uninterrupted duration” of the three-year filing period. Id. 
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Thompson has not met that extremely steep burden. Thompson 

claims that antidepressants given to him in prison rendered him incompetent, but 

the documents he attached to his motion do not adequately support that argument. 

For example, Thompson submitted as an exhibit to his RCr 11.42 

motion a June 2017 letter sent to him by an attorney at the Department of Public 

Advocacy which begins by stating that the attorney had “read your [Thompson’s] 

11.42 petition . . . .”1 The attorney offers constructive criticism about improving 

the motion but does not describe it as indecipherable or incomprehensible. Thus, 

within a year after our Supreme Court issued its opinion affirming on direct appeal, 

Thompson had the ability to draft an RCr 11.42 motion and correspond with an 

attorney about ways to improve it. 

In early 2017, Thompson also submitted a motion to proceed in forma 

pauperis and for appointment of counsel. That motion erroneously stated that 

Thompson had filed an RCr 11.42 motion. Therefore, within the three-year filing 

period, Thompson had the mental acuity to seek relief in the courts despite now 

claiming he was incompetent. A person suffering from total mental incapacitation 

1 Unfortunately, the 11.42 and the dozens of pages of attachments thereto are unpaginated and 

contained in a manilla envelope separated from the rest of the record. The lack of pagination and 

binding makes it difficult to locate, and cite, specific portions of the motion and its attachments. 

In the future, the circuit court clerk must place documents in a bound, paginated volume of 

record under Kentucky Rule of Appellate Procedure (RAP) 26(B).
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would logically lack the ability to file any type of pro se motion, or to draft an RCr 

11.42 motion and correspond with an attorney about ways to improve it. 

Thompson also attached medical records to his RCr 11.42 motion, but 

they also are insufficient to show he was completely incapacitated “for the 

duration.” Those records generally indicate that Thompson was suffering from 

depression and was prescribed medications for that condition, but Thompson has 

not pointed to documentation showing he was mentally incompetent. To the 

contrary, at least some records state Thompson was doing well and was not 

delusional. 

Thompson also submitted a generic list of potential side effects which

persons taking the medications he was prescribed may potentially suffer. But the 

issue is not what side effects some persons may suffer; the issue is whether 

Thompson suffered side effects so serious that he was incapacitated. Thompson 

points to no proof indicating that he suffered from incapacitating side effects. 

Our conclusion is reinforced by our Supreme Court’s decision in 

Carneal, supra. In that case, Carneal pleaded guilty but mentally ill to murder and 

submitted an RCr 11.42 motion, along with other motions such as to withdraw his 

guilty plea, five years later. Carneal, 274 S.W.3d at 424. Carneal presented 

evidence from experts that he suffered from schizophrenia and had been

incompetent to plead guilty as he had suffered from hallucinations and delusions. 
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Id. at 425. Carneal argued that his mental incompetence meant he was entitled to 

equitable tolling to “save[] an otherwise untimely RCr 11.42 motion.” Id. at 429.

The trial court rejected the equitable tolling argument and denied Carneal’s RCr 

11.42 motion as untimely. Id. at 425. 

Our Supreme Court summarily and emphatically rejected Carneal’s 

claim that he was entitled to equitable tolling. The entirety of our Supreme Court’s 

substantive discussion of equitable tolling is as follows:

The trial court also rejected Carneal’s argument 

that his ongoing mental incompetence saved an otherwise 

untimely RCr 11.42 motion. This Court has recognized 

the doctrine of equitable tolling as applicable to postconviction motions. While an ongoing mental 

incompetence may warrant equitable tolling, a claim of 

mental incompetence does not constitute a per se reason 

to toll a statute of limitations. Rather, the critical inquiry 

remains whether the circumstances preventing a 

petitioner from making a timely filing were both beyond 

the petitioner’s control and unavoidable despite due 

diligence. Carneal has not satisfied this burden.

Dr. Cornell’s report concerns Carneal’s mental 

state at the time of the offense and the sentencing, with 

some analysis of his current mental condition. What 

reference is made to Carneal’s mental condition during 

the intervening six years does not support a finding of 

ongoing mental incompetence. Carneal has been 

medicated since 1999, and all psychological reports 

indicate that the intensity of his mental disorder ebbs and 

flows, logically indicating at least temporary periods of 

mental competency. Reports filed at the 18-year-old 

hearing indicate Carneal’s mental condition stabilized 

during his juvenile detention, that he was able to 

meaningfully participate in group therapy, and that he 
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earned a high school diploma and GED. In adult 

corrections, Carneal has been treated with more effective 

medication and has earned credits towards an associate’s 

degree.

In his report, Dr. Cornell explains that 

schizophrenia is a severe mental illness that is 

characterized by episodes of psychosis followed [by] less 

severe periods when the patient may have residual 

symptoms or in some cases, relatively normal 

functioning. As is consistent with the disorder, Carneal 

has experienced temporary periods of mental 

incompetence since the time of the offense, but has not 

been totally incompetent for the uninterrupted duration. 

He has been aware of his mental disability for many 

years and has actively sought treatment. In light of 

Carneal’s intermittent competence, we are unconvinced 

that his condition prevented compliance with the RCr 

11.42 time limitation such that equitable tolling would be 

appropriate. Further, because the evidence in the record 

refutes Carneal’s claim of an ongoing mental 

incompetence, an evidentiary hearing on this issue was 

unnecessary. 

Id. at 429 (alteration in the original) (internal quotation marks and citations 

omitted).

In sum, our Supreme Court required an RCr 11.42 movant to show 

that he or she was totally incapacitated for the entire duration of the filing period. 

Carneal thus was not entitled to an evidentiary hearing to determine if equitable 

tolling should apply, even though he presented seemingly uncontested expert 

opinions that he had schizophrenia which caused, at minimum, some periods of 

incompetence. Id. Thompson, in turn, cannot be entitled to a hearing because he 
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submitted comparatively less detailed, compelling documentation showing he had 

a mental condition which rendered him unable to file a timely RCr 11.42 motion.

An evidentiary hearing is required before an RCr 11.42 motion may 

be resolved if “there is a material issue of fact that cannot be conclusively resolved, 

i.e., conclusively proved or disproved, by an examination of the record.” Haley v. 

Commonwealth, 586 S.W.3d 744, 750 (Ky. App. 2019). But there is no material 

issue of fact regarding Thompson’s incompetence “for the duration” because 

Thompson has not cited evidence which, if believed, would show that he was 

totally incompetent. 

Instead, Thompson has submitted documents which would, if 

believed, show that he was diagnosed with depression and prescribed medications 

to treat that condition. We do not minimize the impact depression may have on the 

human body and mind. We also acknowledge that all medications may cause side 

effects, some of which may be so serious as to be incapacitating. However, to 

receive an evidentiary hearing on equitable tolling under the holding of Carneal,

Thompson was required to present more than documents showing that someone

with depression who took the same medications as did he might possibly be 

incapacitated. He instead was required to present evidence which, if believed, 

would show that he was actually totally incapacitated for the duration of the filing 

period. Thompson has not cited to any evidence from which a reasonable 
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decisionmaker could reach that conclusion. Therefore, the trial court properly 

denied his motion as untimely.

We have concluded any arguments in the parties’ briefs not discussed 

herein are redundant, irrelevant, or otherwise unnecessary to discuss in order to 

properly resolve this appeal. 

For the foregoing reasons, the Hardin Circuit Court is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT:

Kyle Thompson, pro se

Sandy Hook, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron 

Attorney General of Kentucky

Christopher Henry

Assistant Attorney General

Frankfort, Kentucky