Opinion
NO. 2016-CA-000501-MR
09-15-2017
GARY BANCROFT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Gary Bancroft, Pro se Eddyville, Kentucky BRIEF FOR APPELLEE: Andy G. Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ANDERSON CIRCUIT COURT
HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 11-CR-00043 OPINION
AFFIRMING
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BEFORE: COMBS, D. LAMBERT, AND THOMPSON, JUDGES. LAMBERT, D., JUDGE: Gary Bancroft, acting pro se, brings this appeal from an Anderson Circuit Court opinion and order denying his motion pursuant to CR 60.02, in which he sought to withdraw his guilty plea. Because Bancroft waived his arguments through his guilty plea, we affirm.
Kentucky Rules of Civil Procedure.
I. FACTUAL AND PROCEDURAL HISTORY
Bancroft entered an unconditional guilty plea to the murder of Renee Mobley, tampering with physical evidence, and being a first-degree persistent felony offender ("PFO"). The trial court imposed a sentence of fifty years for his murder conviction and five-years' imprisonment for his tampering with physical evidence conviction. Due to his PFO conviction, the sentence for tampering was enhanced to twenty years. The sentences run consecutively, for a total term of seventy years to serve.
Bancroft filed a pro se CR 60.02 Motion for Judgment Nunc Pro Tunc, requesting the trial court enter an order sentencing him to fifty-five years, arguing he did not meet the statutory requirements for a first-degree PFO conviction. The trial court denied Bancroft's motion, finding that he had failed to support this contention.
This appeal followed, wherein Bancroft asserts the following: 1) he does not meet the statutory requirements for a PFO conviction because he had "served out" his previous sentences; 2) the Commonwealth did not offer any certified records to prove his first-degree persistent felony offender conviction; 3) he did not waive these issues through his guilty plea; and 4) his first-degree persistent felony offender charge was incorrect in his indictment.
II. ANALYSIS
"CR 60.02 is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Further, "a trial court's ruling on the motion receives great deference on appeal and will not be overturned except for an abuse of discretion." Barnett v. Commonwealth, 979 S.W.2d 98, 102 (Ky. 1998).
Bancroft's indictment states that he was charged as a first-degree PFO because he was in custody in Alaska for other felony offenses, and absconded. Under KRS 532.080(3)(c), a first-degree PFO is one who is "convicted of a felony after having been convicted of two (2) or more felonies." The statute applies to offenders who commit a new felony within five years after completely serving their sentence, offenders who commit a new felony while on legal release, offenders who commit a new felony within five years of their discharge from legal release, offenders who commit a new felony while on probation or other supervised release, and offenders who escape from custody. KRS 532.080(3)(c).
Kentucky Revised Statutes.
During an in-chambers meeting between the Commonwealth and defense counsel, the Commonwealth stated that Bancroft had at least one warrant out for his arrest for absconding from probation in Alaska at the time he committed the offenses in the present case. Bancroft's counsel stated that he had spoken to an Alaskan probation and parole officer, who informed him that he believed Bancroft was still on probation for both of his Alaskan convictions at that time. By contrast, Bancroft insists that he had served out his sentences in Alaska.
Bancroft's counsel apparently disputed whether Bancroft had a warrant for his arrest pertaining to both of his convictions in Alaska.
Bancroft also argues that the court erred below because it did not require the Commonwealth to offer certified copies of his convictions in Alaska, to prove that he was a PFO. We acknowledge that the Commonwealth would have been required to offer certified copies of his conviction, but only if this case had gone to trial. "The Commonwealth bears the burden of the strict proof requirements for a PFO conviction and must establish the authenticity of the prior judgments of conviction." Merriweather v. Commonwealth, 99 S.W.3d 448, 453 (Ky. 2003).
Bancroft's position becomes untenable when considering that "the general rule in this state is that an unconditional guilty plea waives all defenses except that the indictment does not charge a public offense." Jackson v. Commonwealth, 363 S.W.3d 11, 15 (Ky. 2012). A guilty plea eliminates any argument concerning the sufficiency of the evidence:
A defendant who elects to unconditionally plead guilty admits the factual accuracy of the various elements of the offenses with which he is charged. By such an admission, a convicted appellant forfeits the right to protest at some later date that the state could not have
proven that he committed the crimes to which he pled guilty.Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986). When Bancroft entered his guilty plea, he waived his right to contest the sufficiency of the evidence against him. Additionally, the Commonwealth's offer on a plea of guilty, which Bancroft signed, explicitly states that he agreed to the PFO enhancement:
[P]rior to the commission of the offenses charged in that indictment, Defendant has been twice convicted of felony offenses in the State of Alaska, and by virtue of those convictions, Defendant's charge of Tampering with Physical Evidence is subject to enhancement pursuant to the First Degree Persistent Felony Offender provisions of KRS 532.080, and Defendant agrees that such enhancement as alleged in Indictment No. 11-CR-00043 is applicable.(Emphasis added.)
Bancroft has not argued that his sentence violated a statute. To use his own words, "[t]he nature of Bancroft's claim is: because the Commonwealth failed to comply with KRS 422.040[,] there was insufficient evidence to support the PFO conviction." Bancroft further contends that a guilty plea does not waive a jurisdictional attack on an unconstitutional sentence. An attack on the sufficiency of the evidence is not jurisdictional because it may be waived by a valid guilty plea. See, e.g., Windsor v. Commonwealth, 250 S.W.3d 306, 307 (Ky. 2008). Because Bancroft has attacked the basis for his conviction and not that the trial court entered an incorrect sentence, he has waived our review of this issue.
Bancroft's Reply Brief at page 2.
Finally, Bancroft has challenged the validity of his indictment. Again, Bancroft has waived most arguments pertaining to his indictment. Taylor, 724 S.W.2d at 225. To the extent that Bancroft has argued that his indictment charged no offense, "[a]ll that is necessary to 'charge an offense,' as required by RCr[ ] 8.18, is to name the offense." Thomas v. Commonwealth, 931 S.W.2d 446, 449 (Ky. 1996). The indictment against Bancroft clearly meets this standard.
Kentucky Rules of Criminal Procedure. --------
III. CONCLUSION
Though Bancroft asserts several arguments, this Court need not address the remainder because Bancroft waived them by entering an unconditional guilty plea. Consequently, the judgment of the Anderson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Gary Bancroft, Pro se
Eddyville, Kentucky BRIEF FOR APPELLEE: Andy G. Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky