RENDERED: JUNE 4, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0977-MR

TERRY O’BANNON APPELLANT 

v. 

APPEAL FROM MUHLENBERG CIRCUIT COURT

HONORABLE BRIAN WIGGINS, JUDGE

ACTION NO. 15-CR-00156

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES.

CALDWELL, JUDGE: Terry O’Bannon appeals the trial court’s denial of relief 

after the court determined that he had filed a successive RCr1 11.42 motion. 

Finding no fault in the trial court’s action, we affirm.

 

1 Kentucky Rules of Criminal Procedure.
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FACTS

In 2016, the appellant, Terry O’Bannon (O’Bannon), was convicted of 

first-degree assault, tampering with physical evidence, and being a persistent 

felony offender in the first degree in the Muhlenberg Circuit Court. He appealed 

his conviction and twenty-year sentence to the Kentucky Supreme Court, which 

affirmed in No. 2016-SC-000133-MR, rendered on December 14, 2017.

On July 3, 2018, O’Bannon filed a pro se motion seeking relief 

pursuant to RCr 11.42 and alleging a single instance of ineffective assistance of 

trial counsel. In his motion, he alleged counsel was ineffective for failing to 

present to the jury evidence of an extreme emotional disturbance (EED) which 

might have mitigated his culpability and reduced his ultimate sentence. That 

motion was apparently misplaced and not filed by the Muhlenberg Circuit Clerk 

until September. Once located, the motion was denied, without a hearing, by order 

of the Muhlenberg Circuit Court on October 11, 2019. No appeal of that denial 

was taken by O’Bannon. Rather, on May 26, 2020, O’Bannon filed another 

proceeding, pro se, seeking to supplement the previously denied motion from 

which no appeal was taken. The trial court treated this pleading as a successive 

RCr 11.42 motion and denied it without a hearing. It is from this denial of relief 

that this appeal was taken. We affirm.
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STANDARD OF REVIEW

The trial court’s determination here is a mixed question of law and 

fact. Factually, the trial court determined that the motion hereby appealed was 

successive. The trial court then applied the law to that determination, which led it

to deny any review or relief, finding successive motions pursuant to RCr 11.42 are 

improper. 

The circuit court’s findings regarding claims of 

ineffective assistance of counsel are mixed questions of

law and fact and are reviewed de novo. Brown v. 

Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citing 

Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir.1997)). 

The reviewing court may set aside the trial court’s fact 

determinations if they are clearly erroneous. Id.

Commonwealth v. Robertson, 431 S.W.3d 430, 435 (Ky. App. 2013).

ANALYSIS

Our review is constrained to the order denying the second RCr 11.42 

motion filed by O’Bannon for which a notice of appeal was filed; we have no 

jurisdiction to review the allegations in the original RCr 11.42 motion as there was 

not a timely appeal taken of the Muhlenberg Circuit Court order denying relief. A 

“notice of appeal is the means by which an appellant invokes the appellate court’s 

jurisdiction.” Nelson County Board of Education v. Forte, 337 S.W.3d 617, 626 

(Ky. 2011) (citing City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky.

1990)).
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Turning to the order of the Muhlenberg Circuit Court from which 

appeal was properly taken, we find no error in the trial court’s determination that 

the allegations contained in the second motion clearly could have been contained 

in the earlier motion, making the second motion successive. In the first motion, 

O’Bannon alleged ineffective assistance concerning the failure of counsel to raise 

an EED defense at trial. In the second motion, while still insisting that counsel was 

deficient for not raising an EED defense, he included additional instances of 

alleged ineffective assistance of counsel—failure to call an expert witness as to his 

mental state, failure to question his competency to stand trial, and failure to seek a 

writ of prohibition concerning the trial court’s denial of immunity from 

prosecution for acting in self-defense—all of which were known to him at the time 

of the first filing. Thus, the second motion was successive, and the trial court’s 

determination of such is upheld. 

Successive motions are impermissible under RCr 11.42. 

An RCr 11.42 motion “shall state all grounds for holding 

the sentence invalid of which the movant has knowledge. 

Final disposition of the motion shall conclude all issues 

that could reasonably have been presented in the same 

proceeding.” RCr 11.42(3). This provision has been 

held to bar successive RCr 11.42 motions. See Fraser v. 

Commonwealth, 59 S.W.3d 448, 454 (Ky. 2001) (citing 

Butler v. Commonwealth, 473 S.W.2d 108, 109 (Ky.

1971)). 

Sanders v. Commonwealth, 339 S.W.3d 427, 438 (Ky. 2011).
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While O’Bannon’s original motion may have been misplaced by the 

Muhlenberg Circuit Clerk’s office, it was eventually recovered and filed with a 

date of July 3, 2019. The trial court engaged in an analysis of the allegation

contained therein and issued an order denying relief, which was final and 

appealable, on October 11, 2019. O’Bannon questions whether the trial court gave 

due consideration to the motion, suggesting the order was entered too quickly after 

the motion was located by the Clerk; but, again, we cannot review the propriety of 

this order because we are without jurisdiction to do so. 

O’Bannon then filed a document entitled “Motion to Supplement and 

Correct Petitioner’s RCr 11.42 Motion,” which was filed by the Muhlenberg 

Circuit Clerk on May 26, 2020. In essence, O’Bannon ignored the entry of the 

final and appealable order of the circuit court entered on October 11, 2019, which 

found that he had articulated “insufficient support for his claim that his attorney 

was ineffective” in his 2019 motion. He attempted to revisit his allegation of 

ineffective assistance of trial counsel by adding additional grounds and 

aggrandizing the claim concerning the failure to present the defense of extreme 

emotional disturbance at his trial. This attempt to circumvent the method by which 

review of criminal convictions is undertaken cannot be allowed. Review of 

criminal convictions must undergo prescribed procedures.

“The rules related to direct appeals, RCr 11.42, and 

Kentucky Rule of Civil Procedure (CR) 60.02,
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collectively create a structure that ‘provides for wideranging opportunities for a defendant to challenge in all 

respects the legality and fairness of his conviction and 

sentence.’” Hollon v. Commonwealth, 334 S.W.3d 431, 

437 (Ky. 2010) (quoting Foley v. Commonwealth, 306 

S.W.3d 28, 31 (Ky. 2010)). This configuration “is not 

haphazard and overlapping, but is organized and 

complete.” Gross v. Commonwealth, 648 S.W.2d 853, 

856 (Ky. 1983). At each stage the defendant must raise 

“all issues then amenable to review, and generally issues 

that either were or could have been raised at one stage 

will not be entertained at any later stage.” Hollon, 334 

S.W.3d at 437.

The interrelationship between direct appeals, CR 60.02, 

and RCr 11.42 was carefully outlined in Gross, supra.

McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 

1997). The appeals/post-conviction process involves 

three basic steps.

The first step is a direct appeal “stating every ground of 

error which it is reasonable to expect that he or his 

counsel is aware of when the appeal is taken.” Gross, 

648 S.W.2d at 857.

The second step is for the defendant “to avail himself of 

RCr 11.42 . . . as to any ground of which he is aware, or 

should be aware, during the period when this remedy is 

available to him.” Id. “Final disposition of that motion, 

or waiver of the opportunity to make it, shall conclude all 

issues that reasonably could have been presented in that 

proceeding.” Id. Kentucky courts have repeatedly ruled 

that once a criminal defendant moves to vacate his 

sentence under RCr 11.42, he is not entitled to another 

bite at the apple. Id.

The third step—if appropriate—is filing a CR 60.02 

motion raising “circumstances of an extraordinary nature 

justifying relief.” Id. CR 60.02 is reserved “for relief 

that is not available by direct appeal and not available 
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under RCr 11.42.” Id. at 856. A defendant may not raise 

under the guise of CR 60.02 “issues which could 

reasonably have been presented by direct appeal or RCr 

11.42 proceedings.” McQueen, 948 S.W.2d at 416.

Owens v. Commonwealth, 512 S.W.3d 1, 13-14 (Ky. App. 2017). O’Bannon has 

attempted to avail himself of a second bite of the RCr 11.42 apple, and such is 

simply not allowed. 

In reviewing the order properly appealed and before us, we find no 

error in the trial court’s determination that O’Bannon was not entitled to relief as 

the motion was successive and the additional grounds and issues raised in his 

second motion reasonably could have been presented in the prior motion. 

CONCLUSION

We hold that the Muhlenberg Circuit Court properly denied the 

motion filed by the Appellant in May of 2020 as an improper successive motion 

pursuant to RCr 11.42. We affirm.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Terry O’Bannon, pro se

Burgin, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Mark D. Barry

Assistant Attorney General

Frankfort, Kentucky