(TRIAL VERSION)
COMMONWEALTH OF KENTUCKY
______________ CIRCUIT COURT
CASE NO. ____________________
____________________________ MOVANT
V. MOTION TO VACATE, SET ASIDE OR CORRECT
SENTENCE
COMMONWEALTH OF KENTUCKY RESPONDENT
Comes the movant, _____________, by counsel, and moves this Court pursuant to RCr 11.42, the 6th and 14th Amendments, United States Constitution and Sections 1, 2, 3, 11 and 14, Kentucky Constitution to vacate his sentence of ______ and set aside his conviction. As grounds for this motion, movant states the following:
PROCEDURAL HISTORY
On ________ movant was charged with ___________ in this Court. He entered a not guilty plea at arraignment. Prior to trial movant filed the following motions: ______________. An evidentiary hearing was conducted on ______ motion. The court granted motions for _________, ___________ and _____________ and denied motions for ________ and ___________.
Trial began on ______________ and concluded on _____________. The jury found movant guilty of ____________. Following the penalty phase, the jury recommended a sentence of __________. At final sentencing on _______________ this Court followed the jury’s recommendation/ did not follow the jury’s recommendation and imposed a sentence of ________________.
Movant filed Notice of Appeal and his direct appeal was heard by the Court of Appeals/Supreme Court of Kentucky. That Court affirmed movant’s conviction on _____________. [Movant filed a motion for discretionary review in the Supreme Court of Kentucky which that Court denied on _____________.]
STATEMENT OF THE CASE
Include what occurred pretrial, at trial and at sentencing.
OPINION OF THE COURT OF APPEALS/SUPREME COURT
Set forth what the Court(s) held on appeal concerning the issues that were raised.
GROUNDS FOR RELIEF
I.
MOVANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY ___________.
Movant asserts that he was denied effective assistance of counsel contrary to the 6th and 14th Amendments, United States Constitution and Sections 1, 2, 3, 11 and 14, Kentucky Constitution. Set forth legal authority on IAC. Trial counsel performed deficiently in numerous areas and movant was prejudiced by that deficient performance. Movant will discuss that deficient performance and how he was prejudiced with respect to various stages of his case.
PRETRIAL
TRIAL
May want to break down into components of trial such as voir dire, opening, cross, etc.
SENTENCING
OVERALL PERFORMANCE
Include concluding paragraph arguing why attorney was ineffective and citing yet again to the United States and Kentucky Constrictions as well as federal cases such as Strickland v. Washington, 466 U.S.668 (1984).
II.
MOVANT WAS DENIED DUE PROCESS AND A FAIR TRIAL BECAUSE THE COMMONWEALTH WITHHELD EXCULPATORY EVIDENCE CONCERNING WITNESS ________ WHO TESTIFIED FOR THE COMMONWEALTH AND IMPLICATED MOVANT IN THE CRIME FOR WHICH HE WAS CONVICTED.
Movant asserts that he was denied due process and a fair trial contrary to the 6th and 14th Amendments, United States Constitution and Sections 1, 2, 3, 11 and 14, Kentucky Constitution because the Commonwealth withheld exculpatory evidence concerning witness ___________who testified for the Commonwealth and implicated movant in the crime for which he was convicted.
List facts which have been uncovered since the trial which support your claim and refer to any documents attached to motion.
Include concluding paragraph arguing why client is entitled to relief, citing again to United States and Kentucky Constitutions as well as federal and state cases.
CONCLUSION
For the reasons set forth in this Motion, movant requests this Court to vacate his sentence of __________ and set aside his conviction.
Respectfully submitted,
Assistant Public Advocate
Department of Public Advocacy
[Address]
[Phone]
CERTIFICATE OF SERVICE
I hereby certify that I have mailed true and accurate copies of this Motion, postage prepaid, on ____________, 20____, to _______________, Commonwealth’s Attorney, address and ___________, Attorney General, address.
___________________________________
VERIFICATION
I, ____________, being duly sworn, hereby verify that I have reviewed this motion, and it is true and correct to the best of my knowledge and belief.
___________________________________
Movant
Subscribed and sworn before me by _________ [Movant] on this ___ day of
________, 20____.
_____________________________________
Notary Public
My commission expires __________.
[Date]
Clerk
_______ Circuit Court
Address
RE: ______________ v. Commonwealth of Kentucky,
Motion pursuant to RCr 11.42,
Case No. ________________
Dear Clerk:
Enclosed is the motion pursuant to RCr 11.42 I am tendering on behalf of movant ____________. Please file the motion on receipt. RCr 11.42(4) provides that you shall notify the attorney general and Commonwealth’s Attorney in writing that this Motion has been filed. I am requesting that you comply with RCr 11.42(4). If you have any problems complying with this request please call me. Please let me know if you have any questions.
Sincerely,
Assistant Public Advocate
Department of Public Advocacy
5