Opinion
NO. 2015-CA-001576-MR
06-01-2018
JOHN WILSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: John Wilson, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 10-CR-00043 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES. JONES, JUDGE: John Wilson appeals from an order of the Campbell Circuit Court denying his CR 60.02 motion. After careful consideration, we affirm.
Kentucky Rules of Civil Procedure.
On January 28, 2010, Wilson was indicted for first-degree sodomy and attempted first-degree rape. On April 28, 2010, Wilson accepted the Commonwealth's plea offer of ten years on each charge, to be served concurrently, and entered a guilty plea. A five-year conditional discharge pursuant to KRS 532.043 was included in the plea agreement. Final judgment and sentencing occurred on July 28, 2010.
Kentucky Revised Statutes.
KRS 532.043, "Requirement of post-incarceration supervision for certain felonies," currently requires supervision by the Division of Probation and Parole for five years following conviction of any felony under KRS Chapter 510. Prior to the General Assembly's revision in 2011 to use the term "post-incarceration supervision," the statute described its form of supervision as "conditional discharge." 2011 Ky. Acts, ch. 2, § 91.
On June 29, 2015, Wilson filed a post-conviction motion pursuant to CR 60.02 to amend his sentence. In that motion, he argued to the trial court that his expected post-incarceration supervision violated his right against double jeopardy, violated the jury's fact-finding function, and was void ab initio. This motion was denied on September 10, 2015, because: (1) Wilson accepted the plea agreement with knowledge of the post-incarceration supervision; and (2) Wilson was attacking the constitutionality of KRS 532.043 without notifying the Attorney General in contravention of KRS 418.075. This appeal followed.
The delay in this case can be explained by the following procedural history. Wilson timely filed his notice of appeal on October 9, 2015. This Court granted Wilson's motion to proceed in forma pauperis and allowed the Kentucky Department of Public Advocacy (DPA) thirty days to determine whether it intended to represent Wilson on appeal. DPA subsequently filed a motion to hold this appeal in abeyance, pending finality of other cases. This appeal was returned to the active docket on October 25, 2016, and Wilson's request for counsel was denied pursuant to KRS 31.110(2)(c). --------
The standard of review for an appeal sought under CR 60.02 is whether the trial court abused its discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). Under this standard, we will only disturb a trial court's decision if it was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
On appeal, Wilson's sole argument is that application of the post-incarceration statute, KRS 532.043, is an ex post facto violation and is, therefore, unconstitutional. He does not now assert any of the arguments made to the trial court.
Wilson did not argue to the trial court that KRS 532.043 violated the ex post facto clause as applied to him, and it is not within this Court's authority to review issues not presented to the trial court. Regional Jail Authority v. Tackett, 770 S.W.2d 225 (Ky. 1989). In accordance with the Supreme Court's holding in Kennedy v. Commonwealth, Wilson cannot "feed one can of worms to the trial judge and another to the appellate court." 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010). For that reason, we cannot review Wilson's sole argument on appeal.
Additionally, the trial court did not abuse its discretion in denying Wilson's motion because the Attorney General was not notified of Wilson's constitutional challenges pursuant to KRS 418.075. That statute provides that:
In any proceeding which involves the validity of a statute, the Attorney General of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heard[.]KRS 418.075(1). Strict compliance with this notification statute is required, even in criminal cases where the Commonwealth is already involved. See Jacobs v. Commonwealth, 947 S.W.2d 416 (Ky. App. 1997); Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008). The trial court's strict adherence to KRS 418.075 is supported by Kentucky case law and is neither arbitrary nor unreasonable. Accordingly, the trial court did not abuse its discretion in denying Wilson's motion.
Accordingly, we affirm the order of the Campbell Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: John Wilson, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky