Opinion
NO. 2013-CA-001911-MR
02-13-2015
OSCAR LEE DAVIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Oscar Lee Davis, pro se Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 93-CR-00643
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND MAZE, JUDGES. ACREE, CHIEF JUDGE: The issue before us is whether the Fayette Circuit Court properly denied as untimely appellant Oscar Davis's petition for an independent action. We affirm.
In September 1993, Davis pleaded guilty to second-degree forgery and being a first-degree persistent felony offender (PFO I). The circuit court sentenced him to ten years' imprisonment. Twenty years later, on September 26, 2013, Davis filed a petition for an independent action pursuant to CR 60.03, arguing his PFO I status is an illegal sentence and must be vacated because the prior felony convictions upon which the PFO I charge was premised were insufficient to sustain a PFO I finding. By order entered October 8, 2013, the circuit court denied Davis's petition as untimely. This appeal followed.
Kentucky Rules of Civil Procedure.
We pause to emphasize three additional facts somewhat relevant to our review. First, Davis did not file a direct appeal challenging sentence he now claims to be illegal. Second, in 1994 Davis filed, but later withdrew, a pro se RCr 11.42 motion to vacate, set aside, or correct the circuit court's judgment. Third, Davis was released on parole in October 1999.
While "there generally is no right to a direct appeal from a plea of guilty[,] . . . a defendant may by direct appeal challenge the legality of a sentence imposed pursuant to a guilty plea because sentencing issues are considered 'jurisdictional' and cannot be waived." Elmore v. Commonwealth, 236 S.W.3d 623, 626 (Ky. App. 2007).
Kentucky Rules of Criminal Procedure.
Davis is currently incarcerated on an unrelated criminal conviction. (R. at 114).
CR 60.03 "recognizes the right of a party to attack a judgment by independent action on appropriate equitable grounds[.]" Huffaker v. Twyford, 445 S.W.2d 124, 125 (Ky. 1969). However, by its own terms, "[r]elief shall not be granted in an independent action if the ground of relief . . . would be barred because not brought in time under the provisions of [CR 60.02]." CR 60.03; Huffaker, 445 S.W.2d at 125 ("[CR 60.03] must be construed together with CR 60.02 insofar as limitation of time applies."). Under CR 60.02, motions for relief from judgment "shall be made within a reasonable time."
On the strength of the record, the circuit court concluded Davis did not file his petition within a reasonable time. "The standard of review is whether the circuit court abused its discretion when it made that determination." Rogers Grp., Inc. v. Masterson, 175 S.W.3d 630, 636 (Ky. App. 2005). We see no abuse.
The significant interval between Davis's conviction in 1993 and the filing of his petition in 2013 persuades us that his petition was not filed within a reasonable time. The facts related to his case were known to him. The issue raised in this appeal could have been raised in the 1994 RCr 11.42 motion, in a timely-filed CR 60.02 motion, or possibly by direct appeal; they were not. Davis has failed to exercise reasonable diligence in pursuing relief.
Davis seeks to evade the limitations period by asking this Court to invoke the judicially-created "equitable tolling test - a measure applicable to prisoners who attempt to get documents timely filed, yet fail." Hallum v. Commonwealth, 347 S.W.3d 55, 58 (Ky. 2011). The Kentucky Supreme Court first adopted the equitable tolling doctrine in Robertson v. Commonwealth, 177 S.W.3d 789 (Ky. 2005) "to remedy the procedural deficiency our rules posed to pro se inmates seeking to appeal[.]" Hallum, 347 S.W.3d at 58. The Court subsequently overruled Robertson in Hallum, thereby calling into question the continuing viability of the equitable tolling provision. We need not weigh in on that debate today. See Treat v. Commonwealth, No. 2010-CA-002220-MR, 2012 WL 1886512, at *2 (Ky. App. May 25, 2012) (concluding "that the equitable tolling doctrine still applies to post-convictions proceedings that meet strict standards of tolling relief"). Davis did not convince the circuit court that he utilized reasonable efforts to file his petition for independent action such that equity dictates that the limitations period be tolled. Nor does he convince this Court. He failed to assiduously pursue his rights and he has identified no extraordinary circumstance that prevented him from doing so within a reasonable time. To reverse the circuit court would require this Court to disregard Davis's twenty-year delay in pursuing this action; that we cannot do.
Finally, citing federal habeas corpus case law, Davis contends that, because he has made a credible showing of actual innocence, equitable tolling should be invoked and his constitutional claim of an illegal sentence considered. Davis continues to argue that his PFO I status constitutes an illegal sentence and cannot stand. His argument is this: the Commonwealth relied upon a 1979 manslaughter conviction and a 1984 conviction for possession of a handgun by a convicted felon as the two prior felony convictions justifying PFO I status. See KRS 532.080(3) (defining PFO I). However, because the 1979 manslaughter conviction was used to enhance the 1984 handgun conviction from a misdemeanor to a felony, and because "one previous offense [can] not be used two different ways[,] there was insufficient evidence to upon which to convict" him of PFO I. (Appellant's Brief at 5). Presuming we agree with Davis's premise that federal habeas corpus law has any bearing on this case, we cannot agree that his claim presents a constitutionally intolerable circumstance that compels reversal.
Kentucky Revised Statute
--------
We affirm the Fayette Circuit Court's October 8, 2013 Order denying Davis's petition for an independent action.
MAZE, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Oscar Lee Davis, pro se
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky