Opinion
NO. 2013-CA-000098-MR
02-21-2014
DANEL TAWAN MATHIS, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Erin Hoffman Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 05-CR-000731 AND 06-CR-002667
OPINION
AFFIRMING
BEFORE: COMBS, DIXON, AND VANMETER, JUDGES. DIXON, JUDGE: Danel Tawan Mathis, Jr., appeals from an order of the Jefferson Circuit Court denying his motion for post-conviction relief pursuant to RCr 11.42. We affirm.
In March 2005, Mathis pled guilty, as a youthful offender, to three counts of second-degree robbery (05-CR-000731). The court sentenced Mathis to ten-years' imprisonment, probated for five years. The following year, Mathis was involved in another robbery, while he was still a minor. Mathis subsequently pled guilty to two counts of first-degree robbery (06-CR-002667), and his probation was revoked. On May 16, 2007, the court sentenced Mathis to ten-years' imprisonment, to be served consecutively to his prior ten-year sentence, for a total sentence of twenty-years' imprisonment. In November 2007, the court held a hearing pursuant to KRS 640.030(2) to review Mathis's sentence following his eighteenth birthday. The court concluded that probation or conditional discharge would unduly depreciate the seriousness of Mathis's crimes; accordingly, the court determined that Mathis should be incarcerated in a facility operated by the Department of Corrections.
In August 2009, Mathis filed a pro se motion to vacate both criminal judgments under RCr 11.42, alleging four claims of ineffective assistance of counsel. Mathis specifically asserted that his attorney in case number 05-CR-000731, Keith Kamenish, rendered ineffective assistance by 1) failing to investigate a duress defense; 2) failing to object to the Commonwealth's opposition to probation; 3) failing to discuss the case with Mathis prior to the guilty plea; and 4) failing to object to the preparation of the pre-sentence investigation (PSI) report. The trial court denied the motion, and this appeal followed.
We need not reach the merits of Mathis's appeal because his motion was untimely. An RCr 11.42 motion "shall be filed within three years after the judgment becomes final[.]" RCr 11.42(10). "[F]or purposes of post-conviction relief, a youthful offender's original sentencing order is a final judgment." Commonwealth v. Carneal, 274 S.W.3d 420, 428 (Ky. 2008). Mathis filed his motion in both the 2005 and 2006 criminal cases; however, the content of the RCr 11.42 motion related to the representation by Attorney Kamenish in case number 2005-CR-000731. Mathis was sentenced in that case on May 2, 2005, but he did not file his RCr 11.42 motion until August 13, 2009. As Mathis's RCr 11.42 motion was time-barred, we decline to address his substantive arguments.
On appeal, Mathis concedes the claims pertaining to case number 05-CR-000731 were untimely. Mathis shifts the focus of his argument by offering a generous interpretation of the theories presented in his RCr 11.42 motion. Mathis points out that his motion was timely as to the final judgment rendered in case number 06-CR-002667; accordingly, he contends his motion encompassed allegations of error relating to the PSI report used at his sentencing in that case and at his eighteen-year-old hearing.
Mathis's position is unpersuasive. The record indicates that these arguments were not presented in Mathis's RCr 11.42 motion; consequently, they were not preserved for appellate review. We are "without authority to review issues not raised in or decided by the trial court." Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989).
For the reasons stated herein, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Erin Hoffman Yang
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky