Opinion
NO. 2012-CA-002182-MR
01-10-2014
ANTHONY L. ROBINSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Anthony L. Robinson, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 03-CR-002305
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND MOORE, JUDGES. LAMBERT, JUDGE: In this post-conviction action, Anthony L. Robinson, proceeding pro se, has appealed from the orders of the Jefferson Circuit Court denying his Kentucky Rules of Civil Procedure (CR) 60.02 and Kentucky Revised Statutes (KRS) 532.070 motion to modify his sentence, his motion for reconsideration of the order denying his CR 60.02 motion, and from the motion to add to or amend his motion to reconsider. Finding no error or abuse of discretion, we affirm.
For our statement of facts, we shall rely upon the recitation set forth in Robinson v. Commonwealth, 2005-CA-002058-MR, 2007 WL 1378508 at *1 (Ky. App. May 11, 2007):
On August 28, 2003, Robinson and his wife, Norma Jean Barkley, along with their two children, entered the Shoe Carnival in Louisville. Thereafter, store employees observed Barkley hiding merchandise in the baby stroller that carried her infant child. As Barkley began to exit the store, Robinson approached a cashier in the front of the store and initiated a conversation. Before she could exit the store, Barkley was intercepted by store employees. Robinson began exiting the store but he was intercepted by store employees as well. Robinson then drew a handgun and pointed it at store employees. Store employees grabbed the gun and a struggle for the gun ensued. Already having been called, police arrived and they were able to disarm and arrest Robinson after a brief struggle.
A Jefferson County grand jury returned indictments in September 2003. Robinson was charged with the following: first-degree robbery, complicity to commit robbery; possession of a firearm by a convicted felon; and resisting arrest. Barkley was only charged with first-degree robbery. Subsequently, the Commonwealth offered Robinson and Barkley a joint plea agreement. The Commonwealth required that both defendants accept the plea agreement or it would proceed to trial against each defendant.
In exchange for Robinson's guilty plea to the charges specified in the indictment and to being a persistent felony offender in the first degree, the Commonwealth recommended the following: (1) that he receive a ten-year sentence for first-degree robbery, enhanced to twenty years for being a persistent felony
offender in the first degree; (2) that he receive a ten year sentence for possession of a handgun by a convicted felon, enhanced to twenty years for being a persistent felony offender in the first degree; and (3) that he receive a twelve month sentence for resisting arrest. These sentences were to be served concurrently for a total of twenty years' imprisonment. In addition, by accepting the plea, the Commonwealth would amend Barkley's charge from first-degree robbery to theft by unlawful taking under three hundred ($300) dollars, and recommend that her conviction be conditionally discharged after two years. Robinson and Barkley accepted the offer, and the trial court sentenced them in accordance to the terms of the agreement.
The trial court entered the judgment of conviction on November 23, 2004, and less than a year later, Robinson filed a pro se motion to vacate, set aside, or correct his sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 on August 19, 2005. He also requested an evidentiary hearing. In his motion, Robinson asserted that his guilty plea was not intelligently and voluntarily entered due to the ineffective assistance he received from his counsel. He specifically argued that his attorney: 1) failed to advise him of the nature of his charges; 2) failed to advise him of the facts of the law pertaining to his case; 3) failed to investigate the eyewitnesses to the crime; and 4) failed to advise him that he would have to serve eighty-five percent of his twenty-year sentence before becoming eligible for parole. The trial court summarily denied his motion on August 24, 2005, without an evidentiary hearing and without appointment of counsel. Robinson filed a notice of appeal from the trial court's ruling on September 9, 2005. The same day, he filed a motion for written findings of fact and conclusions of law pursuant to CR 52.01, 52.02, 52.03, and 52.04, which was denied on September 26, 2005. Robinson filed a second notice of appeal from this ruling on October 13, 2005.
In his consolidated appeal, Robinson argued that the trial court erred in denying his RCr 11.42 motion because there was insufficient evidence to support the robbery conviction and because he claimed his attorney misinformed him regarding his minimum parole eligibility. He also argued that the trial court erred in denying his motions for appointment of counsel and for an evidentiary hearing. On May 7, 2007, this Court entered an opinion affirming the trial court's orders on appeal. Related to his parole eligibility, the Court declined to address Robinson's argument that his trial counsel misinformed him that he would be eligible for parole in four years because he never raised that argument before the trial court and rejected his argument that his attorney threatened him with a sixty-year to life sentence unless he agreed to plead guilty. The Court held that a handwritten letter dated November 3, 2004, sent by Robinson to the trial court, in which he requested leniency in his sentence, refuted this allegation and established that "he pled guilty to avoid a potential life sentence and to help his wife avoid a potentially lengthy sentence." Robinson, at *3. In addition, the Court held that Robinson's insufficiency of the evidence argument was not a proper ground for relief under RCr 11.42 because he entered a guilty plea, that he was not entitled to an evidentiary hearing, and that the trial court did not err in denying his motion for appointment of counsel. Id., at *2-*3. The opinion became final on December 18, 2007, upon the Supreme Court of Kentucky's denial of Robinson's motion for discretionary review.
On August 7, 2007, Robinson filed a pro se motion to vacate or amend his judgment pursuant to CR 60.02 and RCr 10.26, arguing that the trial court failed to designate in the judgment that he would have to serve 85% of the sentence before being eligible for parole pursuant to KRS 439.3401, the violent offender statute; that his guilty plea agreement did not include his minimum parole eligibility; and that he should therefore not be subject to that requirement. He also requested an evidentiary hearing. The trial court denied the motion without a hearing on August 10, 2007. Robinson moved to reconsider this ruling citing the same reasons, which the trial court denied on August 28, 2007. The record reflects that Robinson unsuccessfully tried to file a notice of appeal of the trial court's order denying his CR 60.02 motion.
On April 4, 2008, Robinson filed a pro se motion to clarify his sentence, again arguing that his plea agreement did not stipulate that he had to serve 85% of his sentence before being eligible for parole and that he had not agreed to this when he entered into the guilty plea. He requested that the trial court clarify his sentence to confirm that he would be eligible for parole after four years or that he would serve out his sentence in twelve years and six months. The trial court denied the motion on April 10, 2008. Robinson did not appeal from this ruling.
On July 2, 2009, Robinson sent a letter to the trial court asking that five years of his sentence be suspended or that he be granted shock probation. The trial court denied the request on July 7, 2009.
On August 29, 2011, Robinson filed a pro se motion to correct his sentence pursuant to CR 60.02(a) and (f) and KRS 532.070. In this motion, Robinson again argued that he had not been apprised that he had to serve 85% of his sentence before being eligible for parole until he later discovered this through the Kentucky Department of Corrections. Neither the trial court, nor the prosecutor, nor his own attorney warned him of the consequences of his plea. He stated that the only reason he accepted the Commonwealth's plea deal was because his attorney told him that he would only have to serve four years of his twenty-year sentence before he would be able to see his children again and he would not be "dragging [his] wife" with him to prison, presumably. Robinson continued to claim he was innocent of the crime and that his wife was the one who stole the items. He requested that the trial court enter an order directing the Department of Corrections to set his sentence the way he thought it should be set or schedule an evidentiary hearing. By order entered September 13, 2011, the trial court denied Robinson's motion, finding that he had "failed to demonstrate the requisite presence of extraordinary circumstances warranting the requested relief." The court also denied his motion for an evidentiary hearing based upon its review of the record and Robinson's pleadings.
More than one year later, on October 1, 2012, Robinson filed a motion to reconsider the order denying his CR 60.02 and KRS 532.070 motion to correct his sentence. He continued to argue that he was entitled to an evidentiary hearing because the mandatory minimum parole eligibility included in his sentence was not a part of his plea agreement. The trial court denied the motion on October 5, 2012.
On October 11, 2012, Robinson filed a pro se motion to add to or amend his motion to reconsider the order ruling on his CR 60.02 and KRS 532.070 motion. Once again, Robinson argued that he would not have entered a guilty plea to a mandatory sentence, but instead was told by his attorney that he would only have to serve four years of his sentence. For the first time, Robinson stated that he had learned through a family member that his wife reported that he had been offered a thirteen-year sentence before he received the twenty-year offer. He was unaware that the Commonwealth had made an earlier plea offer, and had he known, he would have taken the lesser plea offer. As the Commonwealth pointed out in its brief, it does not appear that the trial court has ruled on this motion.
Robinson tendered his notice of appeal on October 24, 2012, and it was filed on December 14, 2012, upon the trial court's granting of his motion to proceed in forma pauperis. In the body of the notice of appeal, Robinson stated that he was appealing from the orders denying his CR 60.02 and KRS 532.070 motion to modify his sentence, his motion for reconsideration of the CR 60.02 motion, and from the motion to add to or amend his motion to reconsider.
On appeal, Robinson continues to argue that his attorney told him that he would only have to serve four years of his twenty-year sentence if he accepted the Commonwealth's plea agreement. His attorney did not inform him that he would have to serve 85% of his sentence as a direct consequence of his plea, and accordingly his plea was not voluntary. He also argues that he had learned "this year" that the Commonwealth had offered an earlier plea bargain of thirteen years. The Commonwealth contends that the trial court did not abuse its discretion in denying Robinson's post-conviction motion.
The only order that is properly before this Court on appeal is the October 5, 2012, order denying his motion to reconsider. Robinson failed to timely move for reconsideration of the order denying the CR 60.02 and KRS 532.070 motion or appeal from the order within thirty days pursuant to CR 73.02(1)(a). And the record does not reflect that the trial court has ruled on the motion to add to or amend his motion to reconsider, in which he raised the argument that the Commonwealth had offered an earlier plea bargain. Therefore, neither of these orders is subject to review in this appeal.
Our standard of review is set forth in Stoker v. Commonwealth, 289 S.W.3d 592, 596 (Ky. App. 2009):
We review the denial of a CR 60.02 motion under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000); Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.Accordingly, we shall review the circuit court's ruling for abuse of discretion.
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 AmJur.2d Appellate Review § 695 (1995)). Therefore, we will affirm the lower court's decision unless there is a showing of some "flagrant miscarriage of justice." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
In Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983), the Supreme Court of Kentucky set forth the procedure for post-conviction proceedings.
We hold that the proper procedure for a defendant aggrieved by a judgment in a criminal case is to directly appeal that judgment, stating every ground of error which it is reasonable to expect that he or his counsel is aware of when the appeal is taken.Gross, 648 S.W.2d at 857.
Next, we hold that a defendant is required to avail himself of RCr 11.42 while in custody under sentence or on probation, parole or conditional discharge, as to any ground of which he is aware, or should be aware, during the period when this remedy is available to him. Final disposition of that motion, or waiver of the opportunity to make it, shall conclude all issues that reasonably could have been presented in that proceeding. The language of RCr 11.42 forecloses the defendant from raising any questions under CR 60.02 which are "issues that could reasonably have been presented" by RCr 11.42 proceedings.
We adopt in this case, from the opinion in Alvey v. Commonwealth, Ky., 648 S.W.2d 858 (1983), published this day, the following:
"(W)e should not afford the defendant a second bite at the apple. Moreover, we fail to perceive that there is any constitutional impediment in following such a course since we do not believe that the persistent felony offender type of situation was anticipated or
was it meant to be encompassed in Boykin v. Alabama." (Citation omitted)
In Stoker, this Court made it abundantly clear that successive motions are not permitted: "Our rules of civil procedure do not permit successive motions or the relitigation of issues which could have been raised in prior proceedings. Our courts do not favor successive collateral challenges to a final judgment of conviction which attempt to relitigate issues properly presented in a prior proceeding." Stoker, 289 S.W.3d at 597 (internal citation omitted).
Based upon our review of the record and the arguments of both parties, we hold that Robinson's motion to reconsider was based upon a successive CR 60.02 motion and represents an attempt to relitigate matters that have previously been raised and decided. In each of Robinson's post-conviction filings detailed above, he raised the issue of the 85% parole eligibility requirement, and each time his motion was denied and, in one instance, the ruling was upheld on appeal. Furthermore, the record directly refutes Robinson's allegation that he did not know about the 85% parole eligibility requirement until he learned of it from the Department of Corrections. Rather, the record contains a letter from Robinson dated November 3, 2004, prior to the entry of the final judgment and sentence, in which he stated: "All I'm asking is for when you sentence me on Nov. 23, 2004 that you give me 20% and not 85%." Robinson could have moved to withdraw his guilty plea prior to sentencing, but he did not choose to do so. Accordingly, we hold that the trial court did not abuse its discretion in denying Robinson's motion to reconsider.
For the foregoing reasons, the order of the Jefferson Circuit Court denying the motion to reconsider the order denying the CR 60.02 and KRS 532.070 motion is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Anthony L. Robinson, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky