Opinion
NO. 2015-CA-000612-MR
03-24-2017
TRION SHANNON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Trion Shannon, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentuckky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 04-CR-01022 OPINION
AFFIRMING
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BEFORE: JONES, D. LAMBERT, AND THOMSPON, JUDGES. JONES, JUDGE: Appellant Trion Shannon, pro se, appeals the Warren Circuit Court's order denying his CR 60.02 motion for relief from his judgment of conviction and sentence. For the following reasons, we affirm.
Kentucky Rules of Civil Procedure.
I. BACKGROUND
On December 22, 2004, Trion Shannon was indicted by the Warren County Grand Jury on charges of Murder and Burglary First Degree. These charges stemmed from an incident that occurred on February 21, 2003, when Shannon was sixteen-years-old, during which Shannon and a friend burglarized an apartment and left the apartment's resident dying of a gunshot wound. Shannon entered a guilty plea as to first-degree burglary, and an Alford plea of guilty as to the murder charge on September 22, 2005. The trial court subsequently sentenced him, consistent with the jury's recommendation, to thirty years for the murder charge and twenty years for the burglary charge, to concurrently run for a sentence of thirty years.
The indictment states Shannon's birthday as May 15, 1986.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
On October 27, 2006, Shannon filed a pro se motion to vacate, pursuant to RCr 11.42, alleging ineffective assistance of counsel. Essentially, Shannon's motion alleged that his appointed counsel failed to realize that Shannon should not plead guilty because, based on his conduct, the statutory definition of murder was not met and that counsel failed to apprise him of lesser-included offenses. Shannon was appointed counsel from the Department of Public Advocacy ("DPA"), who filed a supplemental memorandum in support of Shannon's RCr 11.42 motion. Following an evidentiary hearing, the circuit court denied the motion by order dated May 18, 2009. Shannon then appealed that denial to this Court, which affirmed the order of the circuit court.
Kentucky Rules of Criminal Procedure.
See Shannon v. Commonwealth, No. 2009-CA-001097-MR, 2010 WL 5018318 (Ky. App. Dec. 10, 2010).
On June 17, 2013, Shannon filed a pro se motion to vacate, set aside, or correct/modify judgment pursuant to CR 60.02(c) and (f), KRS 532.070, CR 13.04, and "equitable reasons." In support of his motion, Shannon argued that: (1) the trial court erred in failing to indict and sentence him as a "youthful offender;" (2) because of his status as a youthful offender, the court erred in sentencing him under KRS 439.3401 to serve eighty-five percent of his sentence before being eligible for release; (3) the evidence against him supports only complicity to murder, and, as such, he was charged with a sentence that exceeds the maximum allowable punishment in violations of his constitutional rights; and (4) he received ineffective assistance of counsel. Counsel from the DPA was again appointed to represent Shannon; however, counsel was permitted to withdraw from representation after a review of the record. The circuit court denied Shannon's motion on both substantive and procedural grounds. This appeal followed.
Kentucky Revised Statutes. --------
II. ANALYSIS
We review appeals involving CR 60.02 motions under an abuse of discretion standard. White v. Commonwealth, 35 S.W.3d 83, 86 (Ky. App. 2000). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Stoker v. Commonwealth, 289 S.W.3d 592, 596 (Ky. App. 2009) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). CR 60.02(c) allows for relief from judgment when there has been "perjury of falsified evidence." Under CR 60.02(f), a movant is entitled to seek relief for "any other reason of an extraordinary nature justifying relief." It is under these guidelines that we review Shannon's appeal.
"CR 60.02 motions are limited to afford special and extraordinary relief not available in other proceedings." Baze v. Commonwealth, 276 S.W.3d 761, 765 (Ky. 2008). Relief under CR 60.02 is only available to resolve issues that could not have been raised on direct appeal or under RCr 11.42. Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). Moreover, "CR 60.02 is not available as a vehicle to correct judicial errors." Winstead v. Commonwealth, 327 S.W.3d 479, 488 (Ky. 2010).
Having reviewed the record, we agree with the circuit court's conclusion that each of the grounds relied on by Shannon in his most recent motion are based on issues that Shannon either raised or could have raised long before now. Shannon was sentenced in 2005, over 7.5 years before he filed the CR 60.02 at issue in this appeal.
Although not entirely clear, Shannon appears to counter this by pointing out the fact that Merriman v. Commonwealth, 265 S.W.3d 196 (Ky. 2008), decided after his conviction, entitles him to relief. Shannon reads Merriman as disallowing a youthful offender from being sentenced under the violent offender statute. First of all, Merriman is not nearly as broad as Shannon asserts. "Merriman concerned only the conflict between the probation-eligibility limitation of the Violent Offender Statute and the requirement that circuit courts consider granting probation at a youthful offender's 18-year-old hearing." Edwards v. Harrod, 391 S.W.3d 755, 760 (Ky. 2013). The "parole-eligibility restrictions of the Violent Offender Statute apply to youthful offenders." Id. at 762.
Second, Merriman only applies when the defendant is a youthful offender. While Shannon was a minor when the alleged crime was committed, he was not a minor when he was sentenced under the indictment at issue. As such, the circuit court was not required to afford him the protections of the youthful offender statute. See Locke v. Commonwealth, 503 S.W.2d 729 (Ky. 1973) (holding that dismissal of juvenile proceedings before they reached the merits did not bar subsequent indictment and trial on same charge and that where defendant had attained the age of 18 years and no juvenile proceedings were pending against him, defendant could be indicted and tried as an adult even though the offense had occurred while he was a juvenile). This result is in accord with KRS 600.020(67), which defines a youthful offender as "any person regardless of age, transferred to Circuit Court under the provisions of KRS Chapter 635 or 640 and who is subsequently convicted in Circuit Court." Because Shannon was indicted after he turned 18, there was never any transfer hearing pursuant to KRS Chapter 635 or 640. Therefore, Shannon does not qualify as a youthful offender.
IV. CONCLUSION
Based on the foregoing, we affirm the order of the Warren Circuit Court.
D. LAMBERT, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Trion Shannon, pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentuckky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky