Summary
relying on Ky. R. Crim. P. 5.22 to reject challenge to a 2010 indictment for conduct that occurred in 2007, notwithstanding a 2008 order of dismissal by a grand jury
Summary of this case from United States v. RogersOpinion
NO. 2019-CA-000813-MR
02-07-2020
BRIEF FOR APPELLANT: Jeffery Hampton, pro se Maury City, Tennessee BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 10-CR-00168 OPINION
AFFIRMING
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BEFORE: JONES, LAMBERT, AND L. THOMPSON, JUDGES. JONES, JUDGE: Jeffery Hampton, pro se, appeals from the Johnson Circuit Court's order denying his motion to reopen the criminal case in which he pleaded guilty in 2011. We affirm the trial court's denial of the motion.
On November 17, 2010, the Johnson County grand jury indicted Hampton for an incident in 2007 in which Hampton unlawfully subjected a minor under age twelve to sexual contact. Following the indictment, Hampton entered an unconditional guilty plea to an amended charge of first-degree sexual abuse. Pursuant to his negotiated plea with the Commonwealth, the trial court sentenced Hampton on May 9, 2011, to five years' imprisonment, with an additional five-year supervision period.
Kentucky Revised Statutes (KRS) 510.110, charged here as a Class D felony.
Approximately four years after his conviction, Hampton began filing pro se motions for the production of documents from the Commonwealth's Attorney and the Johnson Circuit Clerk's office, stating he intended to appeal his conviction. Among his requests was an attempt to discover the identity of the minor victim in the indictment for which he was convicted. Finally, on April 25, 2019, Hampton filed a pro se motion to reopen his criminal case. The motion asserts the grand jury did not possess "a timely legal victim complaint, unincumbered [sic] by a no true bill and order of dismissal." The gist of Hampton's complaint appears to be that the Commonwealth previously sought an indictment in 2008 for the same incident of sexual abuse. At that time, the grand jury found insufficient evidence was presented and returned a "report of no true bill and order of dismissal." Hampton's arguments centered around his belief that the earlier grand jury's report barred further actions by the Commonwealth to prosecute him for the predicating incident. The trial court summarily denied Hampton's motion in an order entered on May 6, 2019. This appeal followed.
Hampton presents three arguments on appeal. First, he argues the Commonwealth should have been precluded from seeking a second indictment after the first grand jury returned a no true bill, and the effect was in violation of the constitutional prohibition against double jeopardy. Second, Hampton argues the grand jury heard oral statements attributed to him, which he contends violated his right against self-incrimination under the Fifth Amendment of the United States Constitution. Third, Hampton argues the investigating detective improperly provided hearsay information to the Commonwealth's Attorney, which led to his indictment.
Hampton's appeal fails both procedurally and on the merits. Kentucky uses a system of "organized and complete" procedures "for attacking the final judgment of a trial court in a criminal case[.]" Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). "That structure is set out in the rules related to direct appeals, in RCr 11.42, and thereafter in CR 60.02." Id. (emphasis omitted). As a procedural matter, Hampton's unlabeled motion fails to invoke a rule under which the trial court could reopen his case eight years after judgment.
Kentucky Rules of Criminal Procedure.
Kentucky Rules of Civil Procedure. --------
If Hampton wished to withdraw his guilty plea, RCr 8.10 would have required him to move the trial court to do so prior to the judgment. RCr 11.42 motions must generally be brought within three years after the judgment becomes final, and Hampton's motion lacks the formal verification needed for that motion in any event. The most apt characterization of Hampton's collateral attack on his conviction would likely be through a motion under CR 60.02(f), which requires only that the motion be made "within a reasonable time[.]" However, our Supreme Court has specifically warned us against characterization or recharacterization of a pro se appellant's unlabeled trial court motions. McDaniel v. Commonwealth, 495 S.W.3d 115, 122-23, 128 (Ky. 2016). In short, Hampton's underlying issues lack a procedural vehicle to be properly before us for review, and we may not create that vehicle on his behalf. We must, therefore, consider Hampton's issues procedurally defaulted and affirm on that basis. See Winstead v. Commonwealth, 327 S.W.3d 479, 489 (Ky. 2010).
Even if we could consider the merits of Hampton's arguments, he would not have succeeded in this appeal. Hampton pleaded guilty to the offense for which he was convicted, and "the general rule in this state is that an unconditional guilty plea waives all defenses except that the indictment does not charge a public offense." Jackson v. Commonwealth, 363 S.W.3d 11, 15 (Ky. 2012). There is no question that Hampton's indictment charged a public offense. Therefore, Hampton waived all the arguments he raises in this appeal by entering an unconditional guilty plea. Moreover, none of his arguments is legally meritorious. "Failure of the grand jury to return an indictment against a defendant does not prevent any charge against such defendant from being submitted to another grand jury." RCr 5.22(4). "Double jeopardy or collateral estoppel defenses do not apply to multiple grand jury proceedings." Malone v. Commonwealth, 30 S.W.3d 180, 182 (Ky. 2000). Fifth Amendment challenges to the evidence do not apply to grand jury proceedings. Costello v. United States, 350 U.S. 359, 363, 76 S. Ct. 406, 408-09, 100 L. Ed. 397 (1956); Commonwealth v. Young, 487 S.W.3d 430, 437 (Ky. 2015). Finally, Hampton errs in assuming the prohibition against hearsay at trial applies to information divulged by investigating officers to the Commonwealth's Attorney outside of the courtroom. There is no such prohibition.
For the foregoing reasons, we affirm the Johnson Circuit Court's order denying relief entered on May 6, 2019.
ALL CONCUR. BRIEF FOR APPELLANT: Jeffery Hampton, pro se
Maury City, Tennessee BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky