Opinion
NO. 2015-CA-000072-MR
04-22-2016
LAMONT HOUSTON BROWN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Lamont Houston Brown, pro se Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 02-CR-01151 OPINION
AFFIRMING BEFORE: COMBS, THOMPSON AND VANMETER, JUDGES. COMBS, JUDGE: On May 15, 2003, Brown pleaded guilty in state court to first-degree trafficking in a controlled substance, tampering with physical evidence, and first-degree persistent felony offender. He was sentenced to ten-years' imprisonment. Pro se, he appeals an order of December 12, 2014, of the Fayette Circuit Court overruling his motion to modify his state court sentence. He filed a motion pursuant to CR 60.02 in the Fayette Circuit Court seeking to have his sentence modified retroactively to run concurrently with a federal sentence that he had already served. After our review, we are compelled to affirm.
Kentucky Rules of Civil Procedure.
On September 12, 2002, police officers received an anonymous tip that Brown was selling drugs from a black car. After observing what they believed to be a drug transaction taking place, officers moved in to arrest Brown. As the officers approached Brown's vehicle, they observed him swallow what was later determined to be a quantity of cocaine.
Brown was arrested and charged with first-degree trafficking in a controlled substance, tampering with physical evidence, and being a first-degree persistent felony offender. He filed a motion to suppress the evidence seized on the ground that it had resulted from an illegal stop. After the trial court denied that motion, Brown entered a conditional guilty plea on May 9, 2003. He was sentenced to ten-years' imprisonment. He received bond pending the outcome of his appeal.
On appeal from the denial of his motion to suppress, we reversed Brown's conviction. However, the Kentucky Supreme Court granted discretionary review and restored his conviction and sentence in an opinion rendered on April 24, 2008. Commonwealth v. Brown, 250 S.W.3d 631 (Ky. 2008). Following the resolution of Brown's appeal, the trial court ordered Brown to appear before the court on May 23, 2008, in order to surrender himself to custody. When Brown failed to appear, the court held him in contempt, ordered his bail revoked, and scheduled a show cause hearing for August 1, 2008. At the show cause hearing, Brown's counsel stated that Brown had previously surrendered to federal authorities on June 9, 2008.
On November 3, 2014, the trial court held a contempt hearing on Brown's 2008 failure to appear. At the hearing, Brown stated that he had been in federal custody since 2008 and that he had been released into the custody of the Kentucky Department of Corrections a few days earlier. He argued that the court should amend its final judgment from 2003 to indicate that his ten-year sentence be ordered to run concurrently with the federal sentence that he received in 2009. The trial court ultimately dismissed the contempt charge, but it continued the case for a formal hearing on whether Brown should receive credit for the time he had served in federal custody.
At the hearing on December 5, 2014, the trial court denied Brown's motion to have his federal and state sentences run concurrently. The court questioned whether it had jurisdiction to change the sentence ten years after it was imposed. A written order denying the motion was rendered on December 12, 2014. It is from that order that Brown now appeals.
We review the denial of a CR 60.02 motion for an abuse of discretion. Partin v Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (internal citations omitted). Absent a flagrant miscarriage of justice, we must affirm the trial court. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
On appeal, Brown continues to argue that the trial court should amend its judgment to clarify that his sentence was to run concurrently with his subsequently imposed federal sentence. "Generally speaking, a trial court lacks power to amend a judgment ten days after the entry of that judgment." Winstead v. Commonwealth, 327 S.W.3d 479, 485-86 (Ky. 2010). "[T]he court has control over its judgment with a right to order a new trial, or alter, amend or vacate the judgment, either on motion or sua sponte, for ten days after entry of judgment, but not thereafter." (emphases added). Johnson v. Smith, 885 S.W.2d 944, 947 (Ky. 1994) (interpreting CR 59.04 and CR 59.05); see Commonwealth v. Gaddie, 239 S.W.3d 59, 61-62 (Ky. 2007) ("[A] trial court loses jurisdiction to amend a judgment in a criminal case ten days after its entry.").
CR 60.02 permits the court to reassert jurisdiction after ten days and to amend its judgment on the basis of: (a) mistake, inadvertence, excusable neglect; (b) newly discovered evidence; (c) perjury or falsified evidence; (d) fraud, (e) the judgment is void, satisfied, released, or no longer equitable to have prospective application or (f) any reason of extraordinary nature. Claims asserted under grounds (a), (b), and (c) must be raised not more than one year after judgment was entered. Claims under grounds (d), (e) and (f) must be made within a reasonable time.
We are not persuaded that CR 60.02 provides Brown an avenue for relief. CR 60.02 provides relief only where extraordinary and compelling equities exist. Bishir v. Bishir, 698 S.W.2d 823, 826 (Ky. 1985). The movant bears the burden to "demonstrate why he is entitled to this special, extraordinary relief." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Brown has offered no support for why his sentence should be modified. His only argument is that due process requires the trial judge to order that his sentences run concurrently. However, that claim is without merit.
Brown was convicted of first-degree trafficking in a controlled substance—a Class C felony; first-degree tampering with physical evidence—a Class C felony; and of being a persistent felony offender in the first degree. KRS 532.080(6) provides in part as follows:
Kentucky Revised Statutes.
A person who is found to be a persistent felony offender in the first degree shall be sentenced to imprisonment as follows:Pursuant to KRS 532.115, the question of whether Brown's sentence should run consecutively to or concurrently with his federal sentence is a matter within the sound discretion of the trial court.
. . . .
(b) If the offense for which he presently stands convicted is a Class C or Class D felony, a persistent felony offender in the first degree shall be sentenced to an indeterminate term of imprisonment, the maximum of which shall not be less than ten (10) years nor more than twenty (20) years.
The trial court accorded Brown the minimum sentence allowed under KRS 532.080 for the crimes for which he was convicted. The court did not specify whether the sentence was to run consecutively or concurrently with respect to any subsequent federal sentence. Therefore, pursuant to KRS 532.115, the sentence is presumed to run consecutively. There was no violation of Brown's due process right to be free from arbitrary and capricious treatment under the law when the trial court sentenced Brown wholly in accordance with the statutory guidelines of KRS 532.080 and KRS 532.115. Consequently, the trial judge did not abuse his discretion by denying Brown's CR 60.02 motion. Brown's unsupported claim that the court should amend its judgment does not fall under any subsection to CR 60.02. Therefore, the trial court could not re-establish jurisdiction under that rule to amend his judgment.
Other rules, including Kentucky Rules of Criminal Procedure (RCr) 10.10 and RCr 11.42, permit the trial court to reassert jurisdiction and amend its judgment. RCr 10.10 allows for the correction of clerical errors. RCr 11.42 allows the court to vacate or amend a judgment that a defendant proves is void due to a violation of a constitutional right, lack of jurisdiction, or violation of a statute. Thompson v. Commonwealth, 177 S.W.3d 782, 785 (Ky. 2005).
However, Brown's claim does not fall within the purview of either of these rules.
Brown argues in the alternative that the original judgment specified that his sentence was to run consecutively with any other previous felony sentences that he must serve. However, it did not say that his sentence was to run consecutively to any subsequent sentences. Therefore, he concludes, the trial court does not have jurisdiction to now order his sentence to run consecutively with his federal sentence. This argument lacks merit.
In Kentucky, there is a statutory presumption that state and federal sentences are to run consecutively if the judgment is silent on that issue. KRS 532.115 directly provides as follows:
[i]f the court does not specify that its sentence is to run concurrent with a specific federal sentence or sentence of another state, the sentence shall not run concurrent with any federal sentence or sentence from another state.The statute requires specificity as to concurrent running of sentences. Thus, because the judgment was silent as to how Brown's sentence was to be run in relation to his subsequently imposed federal sentence, it must be presumed that the court intended that the sentences run consecutively. The trial court does not now have jurisdiction to go back and change Brown's sentence to run concurrently as to his subsequent federal sentence.
Because Brown has stated no compelling grounds for relief, the trial court did not abuse its discretion in denying his motion.
We affirm the order of the Fayette Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Lamont Houston Brown, pro se
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky