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Carpenter v. Commonwealth

Commonwealth of Kentucky Court of Appeals
Jan 9, 2015
NO. 2014-CA-000178-MR (Ky. Ct. App. Jan. 9, 2015)

Opinion

NO. 2014-CA-000178-MR

01-09-2015

JEFFERY CARPENTER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEF FOR APPELLANT: Jeffery Carpenter, 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NOT TO BE PUBLISHED APPEAL FROM BUTLER CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 00-CR-00042
OPINION
AFFIRMING
BEFORE: CAPERTON, KRAMER, AND STUMBO, JUDGES. CAPERTON, JUDGE: Jerry Carpenter appeals the denial of his fourth motion for resentencing after his 2003 conviction of sexual abuse in the first degree and persistent felony offender in the first degree; Carpenter was sentenced to fifteen years of imprisonment. Finding no error in denying the repetitive litigation, we affirm the trial court.

Judge Caperton authored this opinion prior to Judge Debra Lambert being sworn in on January 5, 2015, as Judge of Division 1, Third Appellate District. Release of this opinion was delayed by administrative handling.

Carpenter was originally indicted on August 10, 2000, for 31 counts of sexual abuse in the first degree; he was later indicted for persistent felony offender (PFO) in the first degree and his indictments were consolidated. Following a jury trial on two counts of sexual abuse and the PFO charge, he was convicted of one count of sexual abuse in the first degree and PFO in the first degree. Carpenter's convictions were affirmed by this Court on June 10, 2005; discretionary review was denied by the Kentucky Supreme Court.

Carpenter filed a Kentucky Rules of Criminal Procedure (RCr )11.42 motion alleging ineffective assistance of counsel. On January 22, 2004, the trial court denied this motion; the court later denied the motion to alter, amend, or vacate its judgment. On March 2, 2007, this Court vacated and remanded the trial court's decision because it did not have the record before it and so sent the case back for reconsideration.

On remand, Carpenter filed a pro se motion to supplement his RCr 11.42 motion. Counsel was appointed and an evidentiary hearing was held. Thereafter, the trial court denied Carpenter's RCr 11.42 motion, which was affirmed by this Court on appeal.

On March 3, 2010, Carpenter filed a motion for resentencing; the trial court granted the motion and he was resentenced on August 10, 2010. Carpenter did not appeal that order. On August 8, 2011, Carpenter filed an amended RCr 11.42 motion arguing ineffective assistance of counsel. On August 25, 2011, Carpenter filed a second motion for resentencing. Following a hearing on these two motions, the trial court overruled both motions. This was affirmed by this Court on February 22, 2013.

On August 2, 2013, Carpenter filed his third motion for resentencing. The trial court held another hearing; thereafter, the court overruled the motion. This decision was not properly appealed. On January 6, 2014, Carpenter filed his fourth motion for resentencing. The trial court concluded that this motion was a rehash of his third motion for resentencing and overruled the motion on January 21, 2014. It is from this denial of his fourth motion for resentencing that Carpenter now appeals.

On appeal, Carpenter argues: (1) the trial court erred to his substantial prejudice by not correcting a sentencing error that could not be waived because sentencing errors are jurisdictional; and (2) Carpenter was entitled to dismissal of the PFO conviction due to the lack of a penalty being imposed on the underlying offense. The Commonwealth argues that the trial court did not err (1) in denying this repetitive motion; (2) that Carpenter should have appealed prior motions for resentencing if he was unsatisfied with the outcome; and (3) his argument concerning the PFO conviction is without merit. We agree with each of the Commonwealth's arguments.

Simply stated, the court below did not err in denying Carpenter's fourth motion for resentencing. Indeed, Carpenter has already been resentenced once; if he believed his resentencing to be in error, he should have appealed therefrom. Thus, the court did not err in denying this repetitive motion. Moreover, we agree with the Commonwealth that Carpenter's argument is without merit, as evidenced by Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky. 2010):

In Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky.1991), we held that where, as here, there is no possibility that the PFO sentence is unlawful, any error in not requiring the jury to fix an underlying sentence was a mere procedural defect not subject to review in the absence of a contemporaneous objection. Although in Montgomery we did not expressly review the allegedly faulty sentencing procedure for palpable error, we clearly indicated that absent some possibility of an illegal sentence, any mere procedural error did not result in a manifest injustice. We expressly so hold today, and conclude that the jury's not having fixed an underlying sentence does not entitle Montgomery to palpable error relief. Commonwealth v. Jones, supra, (noting that palpable error relief is not available unless the error resulted in a manifest injustice).
Id. at 49

Finding no error, we affirm.

ALL CONCUR. BRIEF FOR APPELLANT: Jeffery Carpenter, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky


Summaries of

Carpenter v. Commonwealth

Commonwealth of Kentucky Court of Appeals
Jan 9, 2015
NO. 2014-CA-000178-MR (Ky. Ct. App. Jan. 9, 2015)
Case details for

Carpenter v. Commonwealth

Case Details

Full title:JEFFERY CARPENTER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court:Commonwealth of Kentucky Court of Appeals

Date published: Jan 9, 2015

Citations

NO. 2014-CA-000178-MR (Ky. Ct. App. Jan. 9, 2015)

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