Opinion
NO. 2019-CA-000831-MR
05-15-2020
WALTER J. RHODES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Walter J. Rhodes, pro se Louisville, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Thomas A. Van de Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 93-CR-002545 OPINION
AFFIRMING
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BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES. KRAMER, JUDGE: Walter Rhodes appeals the order of the Jefferson Circuit Court denying his motion for post-conviction relief. After careful review, we affirm the Jefferson Circuit Court.
The factual history of this matter was set forth in Rhodes v. Commonwealth, No. 2014-CA-000936-MR, 2015 WL 1188917, at *1 (Ky. App. Mar. 13, 2015):
On November 23, 1993, Rhodes pled guilty to charges of trafficking in a controlled substance (cocaine) and use or investment of drug-related income. The trial court subsequently imposed a sentence of eight years' imprisonment, which was probated for a period of five years. In November 1994, the court issued a bench warrant for Rhodes's arrest when he failed to appear at a probation revocation hearing. Rhodes was not apprehended until June 1999, and he was extradited from Texas to Kentucky. Rhodes was granted shock probation in March 2000; however, his probation was revoked nine months later.
The Kentucky Parole Board granted Rhodes parole in April 2002. Five months later, he was arrested on federal drug trafficking charges and ultimately received a sentence of twenty years' imprisonment. The Kentucky Parole Board issued a parole violation warrant due to Rhodes's federal conviction and filed a detainer against Rhodes with the Federal Bureau of Prisons.
The circuit court record reflects that, since January 2006, Rhodes has filed at least ten pro se motions to set aside his conviction. In April 2013, Rhodes filed a motion to vacate his guilty plea pursuant to RCr 11.42. Rhodes alleged his plea was invalid due to ineffective assistance of counsel and coercion by the prosecution. The circuit court summarily denied the motion, and this appeal followed.
Rhodes's federal sentence was enhanced to twenty years due to the Kentucky conviction at issue in this appeal.
Kentucky Rule of Criminal Procedure.
This Court affirmed the circuit court's denial of his motion pursuant to RCr 11.42, and the Kentucky Supreme Court subsequently denied discretionary review. Thereafter, Rhodes sought a writ of habeas corpus from the United States District Court, which was denied. Rhodes appealed to the United States Court of Appeals for the Sixth Circuit, which affirmed the United States District Court.
See No. 2015-SC-000373-D.
See Rhodes v. Conway, No. 3:16-CV-00239-TBR, 2018 WL 3747468 (W.D. Ky. Aug. 7, 2018).
See Rhodes v. Streeval, No. 18-5906, 2019 WL 4132478 (6th Cir. Jul. 25, 2019).
While Rhodes's RCr 11.42 motion was working through the appellate process, he filed a motion in circuit court on October 23, 2018, seeking modification of his sentence, alleging it is unconstitutional and violates double jeopardy under the United States Constitution. His motion was denied and not appealed. However, in March 2019, Rhodes sought to supplement his prior motion due to the recent holding by the United States Supreme Court in Timbs v. Indiana, ___ U.S. ___, 139 S. Ct. 682, 203 L. Ed. 2d 11 (2019). The circuit court ordered the Commonwealth to file a response and address the issues presented in Timbs. The circuit court ultimately denied Rhodes's motion for post-conviction relief, and this appeal followed.
Rhodes also argues that he began the process of challenging his Kentucky conviction immediately after it was used to enhance his federal conviction in 2005 pursuant to Johnson v. United States, 544 U.S. 295, 125 S. Ct. 1571, 161 L. Ed. 2d 542 (2005). He asserts that "[f]rom March 2007 until December 2013, the Circuit Court would not respond to any motions, notices of appeals, nor correspondence." This is refuted by the record before us which shows that the circuit court entered an order denying Rhodes's motion to correct illegal sentence on March 9, 2007. A certified copy of the criminal docket contained in the record also indicates that the circuit court entered an order denying Rhodes's motion for reconsideration on April 5, 2007.
Rhodes raises numerous arguments on appeal, primarily related to the forfeiture of his property as part of his plea agreement in 1993. Most of Rhodes's arguments have been addressed in his prior post-conviction litigation or were not raised before the circuit court. Notably, he does not argue the applicability of Timbs to this Court; hence, we shall not address it herein.
In light of his prior post-conviction litigation, the only issues that could possibly be considered before us now are Rhodes's arguments in regard to the forfeiture of his property; however, there is no merit to these arguments. Rhodes signed the Commonwealth's offer on a plea of guilty in 1993 which stated, in relevant part, "On 3/15/91, [Rhodes] sold cocaine to a police informant. Between 11/1/92 and 2/8/93, [Rhodes] used drug proceeds to purchase a 1989 Corvette." As a result, Rhodes agreed to forfeit $50,426.00 in property to the Commonwealth. Rhodes did not appeal his conviction. CR 73.02(1)(a) states that "[t]he notice of appeal shall be filed within 30 days after the date of notation of service of the judgment or order under Rule 77.04(2)." We agree with the Commonwealth that the time for Rhodes's appeal of his conviction has long since passed under the civil rule, and his claims for ineffective assistance of counsel have all been denied. Nonetheless, Rhodes characterizes the current appeal as a "collateral attack" on his conviction, even though he fails to cite an applicable rule.
Kentucky Rule of Civil Procedure.
Because Rhodes previously pursued a collateral attack of his conviction pursuant to RCr 11.42, we will liberally construe his current appeal as being brought pursuant to CR 60.02. However, it cannot be seriously argued that Rhodes is entitled to CR 60.02 relief. Rhodes agreed that proceeds from trafficking cocaine were used to purchase a Corvette and that the proceeds were subject to forfeiture. He did not appeal. After careful review of the record before us, we cannot say that any of Rhodes's arguments meets the requirements of CR 60.02 as grounds to vacate his conviction. Moreover, none of them falls within the "reasonable time" mandated by CR 60.02. Rhodes waited twenty-five years to challenge the forfeiture of his property. This is certainly not within "a reasonable time" pursuant to the requirements of CR 60.02.
Rhodes provides a transcript he prepared from his plea colloquy in a separate criminal action (i.e., Jefferson County Case No. 93-CR-000405), but does not provide a transcript from the plea colloquy in the instant action; nor did he designate the video recording of his plea as part of the record for this appeal. --------
Accordingly, the decision of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Walter J. Rhodes, pro se
Louisville, Kentucky BRIEF FOR APPELLEE: Daniel Cameron
Attorney General of Kentucky Thomas A. Van de Rostyne
Assistant Attorney General
Frankfort, Kentucky