Opinion
NO. 2014-CA-001611-MR
02-19-2016
MONTIE GUSSLER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Montie Gussler Pro se Lagrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LYON CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL, III, JUDGE
ACTION NO. 91-CR-00011 OPINION
AFFIRMING BEFORE: CLAYTON, DIXON, AND KRAMER, JUDGES. KRAMER, JUDGE: Montie Gussler appeals the Lyon Circuit Court's order denying his CR 60.02 motion for relief from the court's judgment convicting him of first-degree assault and sentencing him to twenty years of imprisonment, to be served consecutively to any sentence Gussler was serving at the time the judgment was entered in this case. After a careful review of the record, we affirm because Gussler could have raised his claim previously and because his CR 60.02 motion was untimely filed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Gussler was indicted on the charge of first-degree assault. The assault was alleged to have occurred on or about January 13, 1991. Following a jury trial, Gussler was convicted as charged, and the jury recommended a sentence of imprisonment of twenty years, to be served consecutively to any other sentence that Gussler was serving at that time. The court sentenced Gussler in accord with the jury's recommendation.
More than twenty years after the judgment was entered, Gussler moved for a modification of his sentence pursuant to KRS 532.110. In that motion, Gussler requested that the court modify his sentence to make his terms of imprisonment run concurrently with each other. The circuit court denied the motion, holding that it was filed "well past the ten day jurisdictional threshold." The court also noted the record showed that the assault Gussler was convicted of in this case occurred while he "was incarcerated in the Kentucky State Penitentiary," and that the court "exercised its option and specified that this conviction run consecutively to any sentence the Movant was then serving."
Kentucky Revised Statute.
Although the records in Gussler's other criminal cases are not before us, Gussler acknowledged in his CR 60.02 motion in this case that, in addition to his sentence in this case, he is also serving multiple life sentences in other cases.
Approximately nineteen months later, Gussler filed his CR 60.02 motion for relief from judgment in the present case. In his motion, he again sought to have his sentence for the first-degree assault conviction in this case changed to run concurrently, rather than consecutively, to his other sentences. Gussler alleged that he was currently serving "a sentence [of] Life without parole for [twenty-five] years consecutive to Life"; "several sentences in the Department of Corrections from Lawrence County which imposed Life [without] parole for [twenty-five] years"; and his "twenty[-]year sentence imposed by [the circuit court in the present case] for assault 1st degree [that] was ordered to be served consecutive to all other sentences." Gussler stated that he had already served twenty-eight years of imprisonment without the benefit of a parole hearing, and he wanted his sentence in this case to be changed to run concurrently, rather than consecutively, to his prior life sentences, so that he could now be eligible for parole. Gussler argued that requiring him to continue serving until his current parole eligibility date (which he did not specify when that date would be) amounted to cruel and unusual punishment, in violation of the United States and Kentucky Constitutions.
The circuit court denied the motion, finding that Gussler could have and should have raised his claim concerning his sentence on direct appeal. Additionally, the court held that because Gussler's CR 60.02 motion was filed twenty-three years after his sentencing, the motion was untimely because it was not filed within a reasonable amount of time. Regardless, the circuit court alternatively noted that "[i]n Bedell v. Commonwealth, 870 S.W.2d 779 (Ky. 1994), the Kentucky Supreme Court did hold that a sentence for a number of years cannot run consecutive with a life sentence." The circuit court then found, however, that an unpublished Kentucky Supreme Court case was persuasive authority concerning Gussler's allegation that the term of years in the present case should not have been ordered to run consecutively to his prior life sentences. The Kentucky Supreme Court case cited by the circuit court as persuasive authority was Clay v. Commonwealth, No. 2009-SC-000012-MR, 2010 WL 2471862 (Ky. June 17, 2010) (unpublished). The circuit court stated that the Clay Court stated as follows:
Thus, it is improper to run a life sentence consecutive with a sentence for a term of years because to do so would be in direct contravention of KRS 532.110(1)(c). In this case, however, we have an earlier existing life sentence that was properly ordered to run concurrently with a term of years sentence for rape (from the same, earlier, trial) and two term of years sentences rendered for the rape and sodomy convictions in the present case. Therefore, the rule handed down in Bedell does not apply in this instance. Thus, the judgment ordering Appellant's twenty-year sentence and ten[-]year sentence for rape and sodomy to run consecutively with each other and to the [Life Without Parole for twenty-five years] sentence for murder that was rendered in a prior, separate case, is not error and is therefore upheld.Therefore, the circuit court denied Gussler's CR 60.02 motion.
Gussler now appeals, contending that the circuit court erred in denying his CR 60.02 motion because the court had improperly ordered his twenty-year sentence in this case to run consecutively to the life sentences he was already serving. The Commonwealth disagrees, arguing that the circuit court properly denied Gussler's CR 60.02 motion.
II. ANALYSIS
On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. See White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). "Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal or RCr 11.42 proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation marks omitted). Civil Rule 60.02 "is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." Id. "The [CR 60.02] movant must demonstrate why he is entitled to this special, extraordinary relief. Before the movant is entitled to an evidentiary hearing, he must affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). Additionally, claims brought under CR 60.02(a), (b), or (c) must be brought within one year after the judgment is entered, and claims brought under the remaining sections of CR 60.02 must be brought within a "reasonable time." See CR 60.02.
Kentucky Rule of Criminal Procedure. --------
Gussler alleges that the circuit court erred in denying his CR 60.02 motion because the court had improperly ordered his twenty-year sentence in this case to run consecutively to the life sentence(s) he was already serving. However, because this claim could have been brought on direct appeal or in a timely filed RCr 11.42 motion, it was not properly raised for the first time in his CR 60.02 motion. Consequently, the circuit court did not abuse its discretion in denying his motion.
Moreover, even if Gussler could have brought this claim in a CR 60.02 motion, his motion was nevertheless untimely filed. Claims brought under CR 60.02(a), (b), or (c) must be brought within one year after the judgment was entered, and claims brought under the remaining sections of CR 60.02 must be brought within a "reasonable time." Gussler filed his CR 60.02 motion approximately twenty-three years after the judgment was entered in this case, which is neither within one year of the judgment for purposes of CR 60.02(a), (b), or (c), nor within a "reasonable time" for purposes of the remaining sections of CR 60.02. Consequently, Gussler's motion was untimely filed, and the circuit court did not abuse its discretion in denying his motion.
Accordingly, the order of the Lyon Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Montie Gussler
Pro se
Lagrange, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky